In an Ontario family case, a motion is not usually the first step. The rules push parties toward a case conference first, on the view that most cases settle there and that opening with a motion produces an affidavit war that damages everyone, the children most of all. The approach works. The large majority of cases resolve at a conference without a motion at all.
When Can You Skip The Case Conference?
A court can hear a motion before a case conference where there is urgency or hardship, or where a conference is not required for some other reason in the interests of justice.
If you want to use that exception, there are two things to do first. Skipping them is the most common reason these requests fail.
Step One: When Is A Conference Actually Available?
Not what you assume. Not what happened on another file. Ask the trial coordinator, and if the situation is pressing, say so, because dates are sometimes made available for exactly that reason.
Availability changes the analysis. A situation that looks manageable when a conference is two days away can look critical when the next date is five months away. Same facts, different answer.
In one Ontario case the moving party sought urgent relief having made no inquiry at all. He assumed a wait of three or four weeks. There were conference dates available two days later, and several more over the following fortnight. That on its own largely answered the question.
Where a court books conferences through an online calendar, a record of the earliest date it offers is the evidence you need. You are not expected to phone the courthouse over and over.
Ask in writing where you can, and keep the answer. An affidavit saying no earlier date was available carries much less weight than the email that says so.
Step Two: Have You Tried A Short-Term Arrangement?
The aim is not to settle the case. It is to get through to the conference date without a motion. A temporary support figure. A temporary schedule. Something workable for a few weeks.
The court will not be told what was offered, because those discussions are confidential. It will want to know whether an attempt was made and, if not, why not.
Suppose a party urgently needs support until the conference. Whether that is urgent depends a good deal on what the other side is prepared to do. A refusal to pay anything looks very different from an offer of a smaller sum that covers the immediate need. The same logic runs through parenting requests.
It also helps to show what else was considered. Could the children stay in the home while the parents rotate in and out? Is short-term accommodation affordable for either of you? A court asked to remove someone from a home will want to know why the less drastic options do not work.
What If You Did Neither?
Urgency becomes difficult to establish. Not impossible. A situation can still be extreme enough that a court has to step in immediately.
But that is the narrow door. The wide one is evidence. Here is the earliest date. Here is what I proposed. Here is what came back. And here is what will have gone wrong before that date arrives.
Both steps produce documents, and the documents belong in the affidavit.
We act for clients in family court in Milton, Newmarket, Brampton, Oshawa, Toronto and across the GTA.
This article is general information about Ontario family law procedure and is not legal advice. It does not describe any specific client’s matter. For advice on your own situation, see our family law services or set up a consult with us today.
