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What is an emergency or ex parte motion in family law and what happens at one?
Question
What is an emergency or ex parte motion in family law and what happens at one?
Reviewed:
August 19, 2020
Answer
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.
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 in Support of a Claim for Custody and Access, if you're asking for custody or access and if you haven't already filed this form with the court. 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.
You May Also Need
Ministry of the Attorney General
Ministry of the Attorney General
Reviewed:
August 2020
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.
Family court illustrations
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.
You May Also Need
Ministry of the Attorney General
Reviewed:
August 2020