Family law litigation can be a time-consuming and ponderous process. Sometimes, time sensitivity and urgency may compel you to approach the court before the outcome of your case. The proceeding set to meet such a situation is called the bringing of a motion.
A motion can be briefly defined as a “mini-trial.” In family law litigation, motions usually cannot proceed before the determination of substantive issues of the case in a conference; typically, the first proceeding in which parties have an opportunity to talk about their case in front of the judge. However, there may be situations where urgent motions can be filed prior to a case conference or even before the beginning of court proceedings.
Rule 14(4.2) of the Family Law Rules allows individuals to bring urgent motions if there is an urgency. Motions permit the courts to issue temporary orders for the claims brought through the applications, directing methods on how to carry on the matter or to alter a temporary order.
Urgent motions are brought in instances of urgency or only when there is a potential risk of hardships for either party of the case while waiting for the case conference or if the case conference is not mandatory for specific other reasons in the interest of justice.
Motion With Notice
The moving party (the party bringing the motion) [i.e. 14B form] is required to serve motion documents to all other parties.
The respondent shall serve and file a response no later than 4 days after the motion form is served. If the respondent fails to do so, the motion goes unopposed.
Motion Without Notice Or Ex-Parte/Emergency Motion
Ontario Family Law Act provides that “a motion may be made without notice if,
a) the nature or circumstances of the motion make notice redundant or not rationally possible;
b) there is an immediate risk of removal of a child from Ontario, and the party at risk will be confronted with serious consequences due to the delay in the serving of a notice;
c) the health or safety of a child or the moving party is at stake, and the delay involved in serving a notice of motion would probably have serious consequences; or
d) service of a notice of motion would probably have grave consequences.”
Ex-parte Motions do not grant the other party an opportunity to tell their side of the story on the motion date. They are informed if a temporary order is granted. Once it is granted, the copy of the order and the motion documents are served to the other party.
It is pertinent to note that the order granted on motion without notice is temporary in nature. The judge may order you to pay costs if the judge does not deem the matter urgent.
Both parties are obliged to come back to the court at a later date. Then, the judge will decide whether to continue the order or let it end.
It is a good idea to give a copy of the order to the children’s daycare or school where children are protected by the restraining order. Breaching a restraining order is a criminal offence. If a person breaches a restraining order, you can call the police.
There are other cases where a motion without notice may be the proper course of action, such as restraining the other party from removing the children from Ontario or the other party cannot be found.
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If you require legal advice on how to obtain an order on an urgent basis, please contact our firm for a consultation. Our experienced family lawyers will walk you through all accessible options to achieve your intended results. Please contact one of our Family Lawyers at Ayaz Mehdi Professional Corporation for a virtual or in-person consultation.
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