- Under the Divorce Act, the court considers only the child's best interests and gives primary consideration to the child's physical, emotional and psychological safety, security and well-being.
- A motion without notice is allowed only in limited situations, such as immediate danger that a child will be removed from Ontario or immediate danger to someone's health or safety.
- If the judge makes an order without notice, expect to return to court within 14 days so the other party can respond.
- If a child may be in danger or at risk of being taken out of the country, call the police right away.
People often search for an emergency custody order when they are frightened: a child has not been returned, the other parent is threatening to leave the country, or there are safety concerns at the other home. The word custody is still common in conversation, but the court now talks about parenting time, decision-making responsibility and contact.
This article explains in general terms what the court treats as urgent, how an urgent request without telling the other parent works, and what usually follows. Every situation is different, so if a child is at risk, get legal advice quickly.
If a child is in immediate danger, call the police first
A court order is not the first step when a child may be in danger or at risk of being taken out of the country. Ontario.ca says to call the police right away.
Once the immediate risk is dealt with, a lawyer can help you decide whether an urgent court request is the right next step. Keep notes of what happened, with dates, and keep any messages or documents that show it.
What the court looks at
Even in an urgent case, the test is the child's best interests. Under the Divorce Act, the court gives primary consideration to the child's physical, emotional and psychological safety, security and well-being. The court must also consider any family violence and its impact, and any civil or criminal proceeding, order, condition or measure relevant to the child's safety.
A parenting order can also include terms aimed at safety concerns. For example, it can require that parenting time or exchanges be supervised, and it can authorize or prohibit relocation of the child. Which terms a judge would consider fit depends entirely on the facts.
What qualifies as urgent enough to proceed without notice
Normally the other party is told about a motion and gets a chance to respond. A motion without notice is the exception. The Ontario guide allows it in specific situations:
- Notice is unnecessary or not reasonably possible.
- There is immediate danger that a child will be removed from Ontario.
- There is immediate danger to someone's or a child's health or safety.
- Notice would probably have serious consequences.
You must ask for permission to proceed without notice in the motion form, and you must prepare a draft Form 14D order. Whether your situation fits one of these grounds depends on the facts, so it is worth confirming with a lawyer.
How the process works and what happens next
For an urgent motion without notice, you do not serve the other party beforehand. You file on or before the motion date, then serve everything, along with any order, as soon as possible afterwards. An emergency or urgent motion may not need a case conference first.
An order made this way is not the end of the case. Expect to return to court within 14 days so the other party can respond. There is also a risk: if the judge finds the motion was not necessary, you may be ordered to pay the other party's costs.
| Type of motion | Notice to other party | Key timing |
|---|---|---|
| Urgent, without notice | None beforehand; serve afterward | Return to court within 14 days |
| Ordinary, on notice | Forms 14 and 14A served | Serve not later than six days before, file no later than four days before |
Forms and urgent-motion practice differ between the Ontario Court of Justice and the Superior Court, and urgent-motion practice also varies by Superior Court region. Check the local practice direction or ask a lawyer.
If there is no case yet, and what to do next
If no parenting case has been started, the forms to start one include Form 8 (Application) and Form 35.1 (Affidavit). A parent completes Part A only. A lawyer can tell you how an urgent request fits with starting the case in your court.
- Call the police if a child is in immediate danger or may be taken out of the country.
- Write down what happened, with dates, times and names.
- Save messages, emails, photos and any police or agency records.
- Gather any existing order or separation agreement.
- Speak to a family lawyer quickly about whether your situation meets the test for proceeding without notice.
- If you have experienced domestic violence, ask about Family Court Support Workers, who help victims of domestic violence.
If cost is a concern, the Law Society Referral Service can connect you with a family lawyer for an initial consultation of up to 30 minutes, and limited-scope services and Legal Aid Ontario may also help.
Frequently asked questions
Does Ontario still use the term custody?
In everyday speech, yes, but the Divorce Act speaks of parenting orders and contact orders. It also allows parenting time to be allocated by a schedule. When you search for an emergency custody order, you are generally looking for an urgent parenting order.
Can a judge make an order without telling the other parent?
Only in limited situations, such as immediate danger that a child will be removed from Ontario or immediate danger to someone's or a child's health or safety. Even then, you should expect to return to court within 14 days so the other party can respond.
What if the judge decides it was not an emergency?
If the judge finds the motion was not necessary, you may be ordered to pay the other party's costs. That is one reason to get advice before filing.
Do I need a case conference before an urgent motion?
An emergency or urgent motion may not need a case conference first. Practice can vary by court and region, so confirm what applies locally.
Sources
- Divorce Act (Justice Laws) — Justice Laws (federal)
- Ontario.ca – Parenting time, decision-making responsibility and contact — ontario.ca
- Ontario.ca – Guide to Procedures in Family Court: Steps to bringing a motion — ontario.ca
- Ontario Court of Justice – Motions — ontariocourts.ca
- Ontario.ca – Family justice services — ontario.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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