What is an emergency or ex parte motion in family law and what happens at one?

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:

• you have sole 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

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

You need to go back to the courthouse once your partner has been served, to file your documents and Form 6B: Affidavit of Service in your continuing record. You do this at the court counter, with the help of the court clerk.

There is a guide on how to file documents.

The continuing record is your court file that has all the important documents in your case. When you add a document to the continuing record, you also have to update the table of contents by listing each document you're filing.

When you go to your court date, the judge will have all the documents you and your partner filed.

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.