Written By Allison R. McAlpine
Our last article dealt with the first step in a family court case being Pleadings and First Appearance. The next step (which most cases do not take) is an urgent motion before a case conference. Our next article will explain what a case conference is.
Generally, under Rule 14 of the Family Law Rules a party cannot bring a motion prior to a case conference except under certain circumstances. A motion is asking the court for a temporary order (e.g., temporary order for child support, spousal support, freezing of assets, certificate of pending litigation, custody, etc.).
In the Barrie, Ontario family court, it can take months sometimes to get a case conference. In a minority of cases, a client cannot wait that long to have a specific temporary issue resolved (as an example, if one party leaves the jurisdiction with the child and does not return). In these cases, you can bring an urgent motion prior to a case conference.
Rule 14 (4.2) of the Family Law Rules provides that you can bring a motion prior to a case conference if the “court is of the opinion that there is a situation of urgency or hardship or that a case conference is not required for some other reason in the interest of justice.” Rule 14(6) details various other types of motions that do not require a case conference first, such as for contempt, summary judgment and other issues. This article deals with the case of urgency or hardship only.
In the Barrie, Ontario Court, the Judge will generally expect that, prior to bringing the urgent motion, you have contacted the Trial Coordinator to determine the first available urgent case conference date. A Judge hearing the urgent motion will want to know when that first available date is to determine if the motion could have waited until after that date.
Cases where urgency or hardship applies may include:
- Safety issues; or
- Dire financial harm.
Further, on addressing the issue of urgency, a Judge will want to know what attempts have been made to resolve the urgent issue until a case conference could be heard. Motions prior to a case conference are the exception rather than the rule and are only to be brought in serious cases of hardship or urgency. Most cases will not meet this threshold.
If a motion is brought on an urgent basis and the Judge determines that the motion did not meet the threshold of urgency or hardship, then the party that brought the motion could be on the hook of paying the other party’s legal costs for the wasted motion. As a result, it is important that you speak with a lawyer and obtain legal advice before proceeding with an urgent motion. Again, this information applies to urgent motions in the Barrie, Ontario family court. Other jurisdictions in Ontario may have different guidelines. A future article will detail what forms and evidence you need for a motion.