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What is an emergency or ex parte motion in family law and what happens at one?
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As of March 1, 2021, the term custody has changed to decision-making responsibility. And in most situations, the term access has changed to parenting time. Now, all parents usually have parenting time.
Also, a person who isn't a parent or step-parent may get a contact order to spend time with a child. For example a grandparent can get this order.
If you want the court to make a temporary order about some of the issues in your case, you can bring a motion. A motion is a where a party asks a judge to decide specific issues before a trial.
Usually, you have to wait until after you've had a case conference before you can bring a regular motion. You don't have to wait if you and your partner agree and want the court to make a consent order.
There are two other types of motions that you can bring in very few situations if you need a temporary order quickly before a case conference:
- an urgent motion with notice to your partner
- an ex parte or emergency motion without notice to your partner
The difference between these two types of motions is whether you give your partner notice. Notice 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 bring these motions at any time during your court case, even before you've had a case conference and sometimes before you start a court case.
There are Family Law Rules that tell you what is needed at every step in a court case. Rule 14: Motions for temporary orders tells you what you need to do to bring a motion.
This family law court process flowchart explains each step in a family law court case. If you're making the motion, you're called the moving party. Your partner is called the responding party.
You can talk to a lawyer who can help you with your motion. If you can't afford to hire a lawyer for your whole case, some lawyers provide "unbundled services" or "limited scope retainer" services. This means you pay them to help you with part of your case.
If you can't afford to hire a lawyer at all, you may be able to find legal help in other places.
1. Figure out if you meet the test
Identify the risk
You can bring an ex parte motion only in very few situations. This includes situations where the delay in serving your partner may have serious consequences and:
- the 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
For example:
- There is an immediate risk that your partner will seriously harm you or your children, and serving your partner could result in serious consequences.
- Your partner says they plan to leave the country with your children and not bring them back, and serving your partner could result in serious consequences.
- There is not enough time to give your partner notice because something serious could happen if the motion is delayed.
You need to convince the judge that your situation is an emergency. You do this by giving detailed, specific information:
- About your fears and why you think something serious could happen if the motion is delayed because you have to serve your partner. For example,
- any history of partner abuse or violence against others
- alcohol or drug abuse
- history of mental illness
- times you partner made threats against you or the children and the most recent threats
- times your partner has taken the children and not returned them
- information that shows your partner is planning to leave the country
- information that shows your partner has ties to another country, such as family or property
- That shows why you can't wait until after a case conference to bring your motion
Think about the orders you want
You may want to ask the court for an order that:
- gives you all decision-making responsibility, which used to be called custody
- prevents your partner from removing the children from the province or country, called a non-removal order
- tells your partner they cannot contact you or your children, called a restraining order
- you and your children can stay in or return to the place you were living in and your partner is not allowed on the property, called an order for exclusive possession
- the police can help enforce the order
2. Fill out your court forms
If you are bringing the motion, you need to fill out:
- Form 14: Notice of Motion, where you list the orders you're asking the court to make.
- Form 14D: Order on Motion without Notice, where you list the orders you're asking the court to make.
- Form 14A: Affidavit, where you tell the court why you're asking for those orders and why you can't wait until a case conference to discuss the issues. Include your evidence. Your evidence must be sworn or affirmed. This means you promise that the information in the document is true. It is against the law to not tell the truth when swearing or affirming an affidavit.
You may also need to fill out:
- Form 14A: Affidavit, from other people like friends, family members, and neighbours, who have information that proves what you are saying. If they are not willing to sign an affidavit, you can try asking them for a letter that you can attach to your affidavit.
- Form 8: Application, if you haven't already filed this form with the court. You have to:
- give basic information about your family, such as your name, date of birth, and address, and those of your partner and your children
- the history of your relationship with your partner
- check off the issues you're asking the judge to help you with
- list the orders you're asking the judge to make
- give facts and reasons for each order you're asking for
- Form 35.1: Affidavit (decision-making responsibility, parenting time, contact), if you're asking for decision-making responsibility or parenting time and if you haven't already filed this form with the court. Decision-making responsibility and parenting time used to be called custody and access. You have to answer some personal questions about your family situation and tell the court about your suggested parenting plan.
- Form 13: Financial Statement or Form 13.1: Financial Statement, if you're asking for child support, spousal support, or to divide property. You have to give information about your finances such as your income, living expenses, and assets and debts.
- Form 13A: Certificate of Financial Disclosure, where you list all the documents that prove what you said in your financial statement.
- Support Deduction Order, if you're asking for support.
- Support Deduction Order Information Form, if you're asking for support.
- A factum, which is a statement of the law you're relying on. A factum is usually a good idea and is sometimes required in the Superior Court of Justice.
- Updated table of contents, that lists the documents you're adding to the continuing record.
Because you are bringing the motion without notice, you do not serve your partner with your documents.
Choose the right court
There are three courts that deal with family law issues in Ontario. These are the:
- Ontario Court of Justice
- Superior Court of Justice
- Family Court branch of the Superior Court of Justice
It is important that you go to the right court. If you're not sure which court to go to, call the family courthouse in your municipality to ask.
File your documents at court
You must file your completed documents at the courthouse in your continuing record.
You can now file most family law forms and supporting documents online. But you cannot file online if your court date or filing deadline is 5 business days or less away. For more information on how to file online, read the question How do I file court forms for my family law case online?
If you're not allowed to, or don't want to file your documents online, then you have to file them in person at the courthouse. You do this at the court counter, with the help of the court clerk.
But before you file your documents, you must remove all financial account numbers and personal identifying information. You do this by blacking out information like:
- social insurance numbers
- bank account numbers
- credit card numbers
- account numbers for mortgages, lines of credit, and other loans
You must keep the original documents that shows this information. A judge might ask to see it.
There is a guide on how to file documents.
The court clerk gives your documents to a judge to review and make an order.
3. Get a temporary order
The judge makes a decision based only on your written documents. And, there are usually no witnesses on a motion.
This means you can only refer to the evidence in your affidavit or other documents you filed with the court. So it's very important to include all the evidence you have in your affidavits.
If your motion is successful, you get a temporary order. The order applies for a very short period of time, usually not more than 14 days. This is because the judge only heard your evidence when deciding and needs to hear from your partner.
Serve your partner
You must serve your partner with the temporary order and your documents as soon as possible after the judge makes a decision.
Rule 6: Service of documents tells you how to serve your documents. There is also a guide on how to serve documents.
If you fear for your safety, you can ask the court clerk to arrange for your documents to be served on your partner.
Whoever serves the documents on your partner must fill out Form 6B: Affidavit of Service. In it, they say when, where, and how they served your partner. The form proves that your partner got a copy of your documents and knows that they have to respond to them.
File your documents
Once your partner has been served, you must file your documents and Form 6B: Affidavit of Service at court in your continuing record.
You can now file most family law forms and supporting documents online. But you cannot file online if your court date or filing deadline is 5 business days or less away. For more information on how to file online, read the question How do I file court forms for my family law case online?
If you're not allowed to, or don't want to file your documents online, then you have to file them in person at the courthouse. You do this at the court counter, with the help of the court clerk.
But before you file your documents, you must remove all financial account numbers and personal identifying information. You do this by blacking out information like:
- social insurance numbers
- bank account numbers
- credit card numbers
- account numbers for mortgages, lines of credit, and other loans
You must keep the original documents that shows this information. A judge might ask to see it.
There is a guide on how to file documents.
4. Prepare for your hearing
Review your partner's documents
Your partner must serve you with a copy of their documents at least 4 days before the date of your motion.
They have to give you their Form 14A: Affidavit, where they tell the court why they agree or don’t agree with the orders you're asking for and their evidence.
They may also give you:
- Form 35.1: Affidavit (decision-making responsibility, parenting time, contact), if you or your partner are asking for decision-making responsibility or parenting time and if they haven't already filed this form with the court. Decision-making responsibility and parenting time used to be called custody and access. They have to answer some personal questions about the family situation and tell the court about their suggested parenting plan.
- Form 13: Financial Statement or Form 13.1: Financial Statement, if you or your partner are asking for child support, spousal support, or to divide property. They have to give information about their finances such as their income, living expenses, and assets and debts.
- Form 13A: Certificate of Financial Disclosure, where they list all the documents that prove what they said in their financial statement.
- Support Deduction Order, if you or your partner are asking for support.
- Support Deduction Order Information Form, if you or your partner are asking for support.
- A factum, which is a statement of the law they are relying on. A factum is sometimes required in the Superior Court of Justice.
- Updated table of contents, that lists the documents they are adding to the continuing record.
You should read these documents carefully. Make sure you understand what your partner is asking for.
Confirm your court date
You and your partner must tell the court that you will be at your hearing and that you're ready to go ahead.
You each do this by filling out a Form 14C: Confirmation. Write down the amount of time you think you'll need, the specific issues that will be discussed, and the documents the judge should read.
You can fax the form or take it to the courthouse in person. Do this no later than 2:00 p.m. at least 3 days before your hearing date. If you miss this deadline, the hearing may not be held and you will have to get a new date.
You must also give your partner a copy of the form before you give it to the court.
5. Go to your next hearing
When you go to your court date, the judge will have all the documents you and your partner filed.
See what a family courtroom looks like
Most of the time, the judge makes a decision based only on the written documents. And, there are usually no witnesses on a motion.
This means you can only refer to the evidence in your affidavit or other documents you filed with the court. So it's very important to include all the evidence you have in your affidavits.
But the judge may have questions for you to help them make a decision. So you need to be prepared to speak in the courtroom. You should stand up when speaking to a judge. Remove your hat and don't chew gum when you're in court. And, turn off your cellphone.
At the end of the motion, the judge decides whether the ex parte order should continue or not. The judge may make a decision right away. Or, they may "reserve" their decisionand make itat a later time.
If the judge reserves their decision, it means they need more time to review the evidence and think about the orders you're asking for. You may need to come back to court for the decision or you may be told about the decision in writing.
Your case continues through the family court process after a motion. You must follow any temporary orders until:
- The judge makes a different decision.
- You and your partner agree on how to resolve your issues.
Costs
If the judge decides that your situation was not an emergency, they may order cost consequences. This means that you may have to pay for some or all of your partner's legal costs.
The judge may ask you for reasons why your partner should pay for some of your costs, or why you should not have to pay for some of your partner's costs.