A motion, in plain word, means a “mini trial”. In family law context, it allows the court to make a temporary order for a claim made in an application, gives directions on how to carry on the case, or make a change in a temporary order. In family law litigation, usually a motion cannot be heard before a conference dealing with the substantive issues in the case has been completed. However, there are situations where you can bring an urgent motion when 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.
Motion With Notice
The party making the motion shall serve motion documents on all other parties. The respondent shall serve and file a response not later than 4 days after the motion form is served.
Motion Without Notice
Ontario Family Law Act has provided that “a motion may be made without notice if,
(a) the nature or circumstances of the motion make notice unnecessary or not reasonably possible;
(b) there is an immediate danger of a child’s removal from Ontario, and the delay involved in serving a notice of motion would probably have serious consequences;
(c) there is an immediate danger to the health or safety of a child or of the party making the motion, and the delay involved in serving a notice of motion would probably have serious consequences; or
(d) service of a notice of motion would probably have serious consequences.”
Bringing a motion without notice means the other side will not have a chance to tell their side of the story on the motion date. The other side will find out about it if a temporary order is granted. The other person must be served with a copy of the order and your motion documents after the order is made. The order granted on motion without notice is temporary in nature. If the judge is not in the view that the situation is urgent, you may be ordered to pay the costs of the other party.
Both parties have to come back to the court on a later date. At that time, the judge will decide whether to continue the order or let it end.
In the case of a restraining order, if your children are protected by the restraining order, it is a good idea to give a copy of the order to the children’s daycare or school. Breaching a restraining order is a criminal offence. If a person breaches a restraining order, you can call the police.
There are other cases where a motion without notice may be the proper course of action, such as to restrain the other party from removing the children from Ontario or the other party cannot be found.
If you require legal advice on how to obtain an order on an urgent basis, please contact our firm for a consultation. Our experienced family lawyers will guide you step-by-step to achieve the intended result for you. Please contact one of our experienced Family Lawyers at MEHDI AU LLP today for an in-person consultation.
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