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What if I need a court order quickly to deal with partner abuse issues?

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What if I need a court order quickly to deal with partner abuse issues?

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Reviewed: 
May, 2016
Answer

It can take a long time to resolve your issues. There are many steps in the family court process before a trial. Most family law cases are resolved by reaching an agreement before you would need a trial.

If you need a court order quickly, you can bring a motion.

A motion is a court process that asks a judge to make a decision about a specific issue before the full trial takes place, or before you resolve your issues with your partner.

For example, parents who separate may bring a motion to get a temporary order that says where their children will live and which school they will go to.

After hearing your motion, the judge usually makes a temporary order. This means that the order lasts for a certain period of time, or until it is replaced by an agreement or another order.

An abusive relationship can affect your family law issues in several ways. You might need to ask for certain types of orders that take your safety concerns and past abuse into account.

For example, if you've been abused by your partner, you might need a temporary order to protect yourself, your children, or your financial rights. You might need to bring a motion for things like:

Different types of motions

There are a few types of motions. The type of motion you bring, and when you bring your motion, depend on:

  • how urgent your situation is
  • whether you and your partner agree on the issue

Regular motions

If you need a temporary order before your trial but your situation isn't urgent, you bring a regular motion. Step 3 below has more information on regular motions.

Urgent motions

If you need a temporary order urgently, you can bring:

  • an urgent motion with notice to your partner, or
  • an urgent motion without notice to your partner. This is also called an emergency motion or ex parte motion.

Step 2 below has more information on urgent motions. You can only bring urgent motions in certain situations. It is difficult to get an order based on an urgent motion.

The Steps in a Family Law Case flowchart has a section on motions called What if you need a court order quickly?.It lets you know what you need to do to bring a motion and how to respond to one filed against you.

Safety and court process

If your partner doesn't know where you live and you fear for your safety, you don't have to put your home address on your court documents. If you have a lawyer, the lawyer usually puts their office address on the court documents.

If you don't have a lawyer, you can put any address where you can pick up documents from. The address you put down is for your partner to send things to when they need to serve you with their court forms and documents. For example, you can put a friend or a family member's address.

If you fear for your safety or the safety of any friend or family member when serving documents, you can ask the court staff to arrange for your documents to be served.

Next steps

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It is very important to talk to a lawyer if you are worried about your safety or your children's safety.

A lawyer can explain:

  • what the law says and how it applies to your situation
  • if you are likely to be successful on an urgent motion
  • what forms you need to complete and what evidence you need for your motion

If you have experienced family violence and need immediate legal help, you might be able to get 2 hours of free advice from a lawyer. This service is offered through some women's shelters, community legal clinics, and Family Law Service Centres. Or you can call Legal Aid Ontario toll-free at 1-800-668-8258 to find out more.

If you have experienced sexual abuse and live in Toronto, Ottawa, or Thunder Bay, you might be able to get 4 hours of free advice from a lawyer. You have to complete a voucher request form. Or you can call the Independent Legal Advice for Sexual Assault Survivors Pilot Program at 1-855-226-3904 to find out more.

If you can't afford to hire a lawyer for your whole case, some lawyers provide "unbundled" or "limited scope" services. This means you pay them to help you with only certain things, like getting a restraining order or drafting a court document.

If you can't afford to hire a lawyer at all, you may be able to find legal help in other places.

You can also talk to duty counsel. Duty counsel is a lawyer at the family court who can help you. You can discuss your situation with them before you prepare your motion. They can also review your court forms. They might have helpful suggestions that may help you get your court order. For example, they may tell you what evidence you will need.

Family Court Support Workers also help victims of partner abuse prepare for family court.

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There are 2 types of motions that you can bring in very few situations if you need a temporary order urgently:

  • an urgent motion with notice to your partner
  • an urgent motion without notice to your partner

You bring these motions when your partner doesn't agree with what you are asking for.

1. Urgent motion with notice

This type of motion is seen as "urgent" because you are asking for a court order before you have had a case conference.

A case conference is usually the first chance you and your partner get to speak with a judge about your case. The judge tries to get you to agree on some or all of your issues.

So, to bring an urgent motion with notice, you have to show why you can't wait until after your case conference to bring your motion.

In some cases, you can even bring an urgent motion even if you haven't started your court case yet.

You can bring an urgent motion with notice only in very few situations. You need to show that one of these is true:

  • your situation is urgent
  • you will face hardship if you have to wait to bring your motion after a case conference
  • it is in the "interests of justice" that your motion be heard before a case conference

The court decides if you have proven one of these.

For example, you might be able to prove:

  • your situation is urgent because there is an immediate risk that your partner will take your children away or seriously harm you or your children
  • you will face hardship if you have to wait to bring your motion after a case conference because you don't have enough money to pay your mortgage and the bank has threatened to take legal action against you
  • it is in the "interests of justice" that your motion be heard before a case conference because your partner is ignoring your parenting agreement and won't let you see your child

You must give your partner "notice" of your urgent motion. This means that you serve your partner with your court documents for the motion and they have a chance to respond before a judge makes a decision.

You can find out more about this type of motion in this:

2. Urgent motion without notice

An urgent motion without notice is also called an emergency motion or ex parte motion.

You don't give your partner notice when you bring this motion. This means that you don't serve your partner with your court documents for the motion and they don't have a chance to respond before a judge makes a decision. They can respond afterwards, but the court makes a decision first and then later hears from both parties about whether to change the decision.

You can bring an urgent motion without notice only in very few situations. You must have a good reason why your partner shouldn’t be told about the motion before the judge makes a decision.

For example you could show that you didn't serve your partner because:

  • If they knew what you were asking for in your motion, there is an immediate risk that your partner will seriously harm you or your children.
  • There is an immediate risk that your partner will leave the country with your children and not bring them back. And serving your partner would give them enough time to leave the country with your children.
  • Serving the motion might lead to something serious happening. For example, your partner might move money out of the country so that you can't get it. In this situation, you have to show that there is a real risk that this might happen if they knew you were asking for a court order that didn’t allow them to move their money.

You can bring an ex parte motion at any time during your court case, even before you've had a case conference and sometimes before you start a court case.

But if you bring this motion before you have had a case conference, you have to show why you can’t wait until after your case conference to bring your motion.

You can find out more about this type of motion in this:

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If your situation is not urgent, or you have already had a case conference, you don't need to bring an urgent motion. You bring a non-urgent motion.

Non-urgent motions

There are 2 types of motions that you can bring to ask the court for a temporary order:

  • a motion without consent, or a "regular" motion
  • a motion with consent

You have to give your partner "notice" for both types of motion. This means that you serve your partner with your court documents for the motion and they have a chance to respond before a judge makes a decision.

1. Motion without consent, or "regular" motion

A motion without consent is sometimes called a "regular" motion. This type of motion is very common. "Without consent" means that your partner doesn't agree with the order that you are asking for.

You can bring a regular motion only after your court case has had a case conference.

For example, separating partners might have a case conference to discuss custody with a judge, but still cannot agree. Either partner can then bring a motion to ask a judge to decide what should happen, while they continue trying to solve the issue and prepare for a trial. The judge who hears their motion may make a temporary order for custody.

You can find out more about this type of motion in this:

2. Motion on consent

A motion on consent means you and your partner agree on the orders you want the judge to make.

You can bring this motion at any time, even before you've had a case conference.

Because you and your partner agree, you usually don't have to go to court. You can send the court your court forms along with a document that says what you have agreed to. This document might be called a consent agreement or minutes of settlement. The court then makes an order based on your agreement.

In abusive relationships it can be difficult for partners to agree on things like custody and access. You should get legal advice before you agree to anything with your partner. If you've been abused, a regular motion or an urgent motion may be more suitable.

You can find out more about a motion on consent in this:

Other court motions

A motion to change is the name of a court process to change a final court order or separation agreement that is filed with the court.

Even though it is also called a "motion", it is not the same thing as the other types of motions discussed above where you usually ask for a temporary order. A motion to change is where you ask for a final order to change your previous final order or separation agreement.

This process is different from the other types of motions discussed above.

You can find out more about this type of motion in:

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A judge usually decides a motion based on your court forms and written evidence only. So it is important to give detailed information about any family violence that can help them understand why you want the court order that you are asking for.

For example, if you're asking for a restraining order or supervised access, it is important that you give proof of why you need this type of order. If you have safety concerns because of past abuse, you need to give evidence that your partner abused you or your children.

You want the judge to understand:

  • the pattern of abuse -- how often it happened and what caused it
  • how long it has been going on
  • whether it is getting worse
  • your safety concerns, based on past or current abuse

They also need to know whether your children are safe. You need to tell them about:

  • threats your partner has made about your children
  • times your partner has taken and not returned your children
  • how your partner has harmed your children
  • information that shows your partner is planning to leave the country

You should also gather other evidence of the abuse or neglect. There are many types of partner abuse. Your evidence might include:

  • records of 911 calls
  • criminal charges, bail conditions, or terms of probation
  • evidence that your partner did not follow a family court restraining order in the past
  • hospital reports, if you went to the hospital for treatment after an assault
  • photographs of injuries
  • evidence your partner stalked you after you separated
  • emails, letters, text messages, voicemails, or social media posts that show abuse, violence, control, or harassment
  • documents from a Children's Aid Society that show how they’ve been involved with your family

You can also get other people to give evidence for you, such as:

  • your family doctor, if you talked to them about the abuse
  • your religious leader, if you turned to them for support
  • your employer or co-workers, if they witnessed abuse, violence, or harassment
  • friends, family members, or neighbours, if they witnessed abuse, violence, or harassment
  • school teachers and day care workers, if the children spoke about or showed signs of abuse at home
  • shelter workers, therapists, or counsellors, if they have helped you

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