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Bring an urgent motion without notice

You can bring an urgent motion without notice for a temporary order at any time during your court case. You can even bring one before you start a court case.

An urgent motion without notice is sometimes called an emergency motion or an ex parte motion. This means you don't have to serve your documents on your partner before the judge hears your motion and makes a decision.

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 on leaving the country with your children and not bring them back, and serving your partner could result in serious consequences.

To bring an urgent motion without notice, you must give detailed, specific information of your fears and show why you think something serious could happen if the motion is delayed because you have to serve your partner. You also have to give evidence that shows why you can't wait until after a case conference to bring your motion.

The judge makes a decision on your motion based only on your documents and evidence. If your motion is successful, your order will apply for a short period of time. Usually, another court date is set within 14 days so that your partner can respond at that time with their side of the story.

If you're making the motion, you're called the moving party. Your partner is called the responding party.

Here is what each party has to do:

Moving party

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 and show why you think something serious could happen if the motion is delayed because you have to serve your partner. 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 are relying on. A factum is usually a good idea and is sometimes required in the Court of Justice.
  • Updated table of contents, that lists the documents you're adding to the continuing record.

If your partner doesn't know where you live and you fear for your safety, you don't have to put your home address on your court documents when you fill them out. You can put any address where you can pick them up from. For example, you can put a friend or a family member's address.

You must file your completed documents at the courthouse. The court clerk gives them to a judge.

When the judge reviews your motion, they decide based only on the information and evidence in your documents. You usually don't have to go into a courtroom or talk to the judge. So, it's very important to include all of the evidence you have in your affidavit.

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.

You must serve your partner with both the temporary order and your motion documents, as soon as possible after the judge makes a decision. You serve your partner by regular service or special service. Serve your documents below explains how to do this.

If you fear for your safety, you can ask the court clerk to arrange for your documents to be served on your partner.

See Count time below to understand how to calculate days or time correctly. This is important because court staff may not accept your documents if you haven't followed the rules.

You need to go back to the courthouse once your partner has been served, to file your motion documents, including Form 6B: Affidavit of Service, in the continuing record. Update your continuing record below explains how to add documents in your court file.

If you need an interpreter or any special arrangement because of a disability, see Ask for a special arrangement below.

Responding party

If your partner started the motion and has an emergency order from the court, you have the chance to answer it by filling out:

  • Form 14A: Affidavit, where you tell the court why you agree or don't agree with the orders your partner got and 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:

Make copies of your completed documents for you and your partner.

You must serve your partner with a copy of your documents at least 2 days before the date of the motion. You serve your partner by regular service or special service. Serve your documents below explains how to do this.

See Count time below to understand how to calculate days or time correctly. This is important because court staff may not accept your documents if you haven't followed the rules.

You need to go back to the courthouse once your partner has been served, to file your motion documents, including Form 6B: Affidavit of Service, in the Continuing Record. Update your continuing record below explains how to add documents in your court file.

If you need an interpreter or any special arrangement because of a disability, see Ask for a special arrangement below.

Both parties

You and your partner have to tell the court that you will be at your hearing. Confirm your court date below explains how to do this.

At the next hearing, the judge will have all the documents you and your partner filed. The judge may have questions for you to help them make a decision. So you need to be prepared to speak in the courtroom.

There are usually no witnesses on a motion. You can only refer to the evidence in your affidavit or other documents you served and filed with the court. So, it's very important to include all of the evidence you have in your affidavit.

At the end of the motion, the judge decides whether the emergency order should continue or not. The temporary order can last for a few weeks or months while you and your partner continue to try to resolve your issues. The judge may make a decision right away. Or, they may "reserve" their decision and make it at 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 order until:

  • The judge makes a different decision.
  • You and your partner agree on how to resolve your issues.

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 or some of your partner's costs.

Ask for a special arrangement

If you or any of your witnesses need an interpreter or any special arrangement because of a disability, you can ask for this at any stage in the court process.

You can speak with any staff member at court about what you need or you can contact the Accessibility Coordinator at the court where your case, motion, or trial is being held. More information on accessibility at Ontario’s courts is available on the Ministry of the Attorney General’s website.

Confirm your court date

You must confirm your court date by 2 p.m., at least 2 days before your scheduled hearing. To do this, you must fill out and file Form 14C: Confirmation. This form tells the court that you’ll be at your hearing, what specific issues will be discussed at it, and what documents the judge should read. You can file the form in person at the courthouse or by fax.

Your partner also has to fill and file this form to confirm they will be at the hearing.

If you do not file your confirmation form in time, the hearing will not be held and you will have to get a new date.

Count time

Rule 3: Time tells you how to count time or days.

You must follow court rules that say the day by which you have to:

  • serve your partner, or other people or agencies, with your documents
  • file your documents with the court
  • confirm your court dates

When you serve your documents, counting starts on the day after the “effective” service day. The effective service day depends on how you served the documents. If you served them:

  • personally - service is effective the same day
  • by mail - service is effective 5 days after the documents are mailed
  • by courier - service is effective the day after the courier picks it up
  • by fax - service is effective the day it is faxed as long as it is faxed before 4 p.m. on a day when the court is open
  • at your partner’s home with anyone who seems to be an adult and then mailed to that address - service is effective 5 days after the documents are mailed

For example, suppose your partner has to get your documents at least 7 days before the date of your motion. If you serve them personally on Monday, the first day you count is Tuesday and the 7th day is the following Monday.

If the last day is a holiday, the time period ends on the next day that is not a holiday.

But if you have less than 7 days to serve or file your documents or to confirm your court date, then Saturdays, Sundays, and holidays when court offices are closed are not counted.

Counting time or days is important because court staff won’t accept your documents if you have not followed the rules.

Serve your documents

Rule 6: Service of documents tells you how to serve your partner and any other people or agencies you have to serve.

Documents can be served in 2 ways – by special service or by regular service. The Family Law Rules tell you which way you have to serve your documents at each step in the court process.

You can usually serve your partner yourself, or get a family member or friend who is at least 18 years old or a professional process server to do it for you.

Special service

To serve your documents by special service means you, a family member or friend who is at least 18 years old or a professional process server must do one of the following:

  • give a copy to your partner directly, but you can't be the one to do this
  • leave a copy with your partner’s lawyer
  • mail a copy to your partner, but your partner must send back a special form to confirm they received the document
  • leave a copy in an envelope addressed to your partner at your partner’s home with any adult living with your partner, and then mail a copy of the documents to that address within one day

Special service is usually used for documents that start the case or documents that could lead to the person being served going to jail.

Regular Service

To serve your documents by regular service means you, a family member or friend who is at least 18 years old or a professional process server, must do one of the following:

  • mail a copy to your partner or their lawyer
  • courier a copy to your partner or their lawyer
  • fax a copy to your partner or their lawyer
  • serve a copy by special service

The following documents can only be served by special service:

  • an Application
  • a motion to change
  • a summons to witness
  • a notice of contempt motion
  • a notice of motion or notice of default hearing where the person to be served faces a possibility of jail

6B: Affidavit of Service

After your documents are served, you, or whoever served the documents, must fill out Form 6B: Affidavit of Service. This can be done at the court counter, with the help of the court clerk.

Form 6B asks for:

  • the name of the person who served the documents
  • the name of the person or agency that was served
  • when the documents were served (day, month, and year)
  • where the documents were served (house number, apartment number, street name, city, and province)
  • what documents were served (Application, Answer, Reply, notice of motion)
  • how the documents were served (personally, at place of residence, by regular mail, courier, or fax)

This form must be sworn or affirmed. This means the person signing it is promising that the information in it is true. It is against the law to not tell the truth when swearing or affirming an affidavit.

Form 6B proves that your partner got a copy of your documents and knows that they have to respond to them.

More information on serving documents can be found in the Ministry of Attorney General’s A Guide to Family Procedures, Part 6: Serving Documents.

Safety issues

If you fear for your safety or the safety of any friend or family member when serving documents, you can ask the court staff to arrange for your documents to be served.

Update your continuing record

Rule 9: Continuing Record tells you what a continuing record is and what documents you put into it

The continuing record has every document you and your partner want the court to look at. It is kept in the court file at the courthouse.

The continuing record has 2 parts:

1. The endorsement volume has all the endorsements and court orders a judge makes in your case.

2. The documents volume has all the documents filed in your case by you and your partner. This includes Applications, Answers, Replies, affidavits of service, financial statements, motions, affidavits, and trial management conference briefs. It does not include the case conference brief or the settlement conference brief.

If you are the applicant, you start the continuing record and keep adding your documents to it. If you don’t have a lawyer, court staff can help you start it and help you add your documents to it

If you are the respondent you add your documents to the continuing record your partner started. If you don’t have a lawyer, court staff can help you add your documents to it.

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.

Make sure you keep a copy of every document you and your partner fill out. This allows you to keep track of your case yourself. You won’t have to go to the court to ask the court clerk to get your court file if you need to check something.

More information on the continuing record can be found in the Ministry of Attorney General’s A Guide to Family Procedures, Part 5: Filing Documents.