Emergency Custody Orders in Ontario: When Court Hears You Urgently

When you fear for a child's safety, or worry the other parent may take your child away, waiting weeks for a court date can feel impossible. People often search for an emergency custody order. In Ontario, the law now speaks of decision-making responsibility and parenting time, though older orders and agreements still use the words custody and access.

This article explains how the court treats urgent situations, what a motion without notice is, and what tools exist if a child is being withheld or removed. Every case turns on its facts, so treat this as a general guide and speak with a lawyer about your situation.

Is there really an emergency custody order?

When people search for an emergency custody order, they usually mean an urgent motion: a request asking a judge to deal with a problem quickly, before the case moves through its normal steps. The Family Law Rules allow a motion to be heard early where the court finds a situation of urgency or hardship. What the court can order in your situation depends on the facts, so it is worth confirming with a lawyer.

The court's main concern in any parenting case is the child's physical, emotional and psychological safety, security and well-being. How that concern bears on whether your situation is treated as urgent depends on the facts, so it is worth confirming with a lawyer.

How the court decides what is urgent

Under rule 14(4) of the Family Law Rules, no motion may normally be heard before a case conference on the substantive issues. Rule 14(4.2) creates an exception where the court finds a situation of urgency or hardship, or that a case conference is not required for some other reason in the interest of justice.

What counts as urgent can also depend on the practice direction for the Superior Court location where your case is heard, and those directions differ from place to place. Check the current practice direction for your court on the Ontario Courts website, or ask a lawyer.

• Examples people raise include fear of harm to the child or to a parent, and a risk the child will be removed from Ontario.
• Whether your situation will be treated as urgent depends on the facts and the court, so it is worth confirming with a lawyer.
• A judge will want clear facts, not general worry, so be ready to describe what happened and when.

Motions without notice

Ordinarily the other parent is told about a motion. Rule 14(12) allows a motion without notice in several cases: when notice is unnecessary or not reasonably possible, when there is an immediate danger of a child's removal from Ontario, when there is an immediate danger to the health or safety of a child or the party, or when serving notice would probably have serious consequences.

In the removal and danger cases, the delay caused by serving notice must also probably have serious consequences. Courts treat these motions seriously because the other parent has not been heard, so expect to be asked for full and honest details.

If a child is withheld, at risk of removal or taken

Ontario's guidance says to call the police right away if you think your child is in danger or at risk of being taken out of the country. A court application is not a substitute for that call.

• Child withheld: where a court is satisfied a child is being unlawfully withheld, it may authorize the applicant to apprehend the child, and may direct the police to locate, apprehend and deliver the child to the person named in the order. That order expires within six months unless a longer period is necessary.
• Passports: where someone is barred by court order or separation agreement from removing a child from Ontario, the court may make protective orders, including ordering delivery of the person's passport, the child's passport and other travel documents.
• Criminal law: a parent who takes, conceals or detains a child under 14 with intent to deprive the other parent of possession can be guilty of an offence whether or not a parenting order exists, with a maximum penalty of 10 years on indictment. Charges need the consent of the Attorney General or counsel instructed by them.
• Protecting a child: no one is guilty of the abduction offences if the taking was necessary to protect the child from danger of imminent harm, or if the person was escaping imminent harm.

If an order is broken, the court may make any order it considers necessary for a just result, such as costs or a contempt order. A person found in contempt may be imprisoned or fined.

What to do next

If anyone is in immediate danger, contact the police first. Once things are safe, speak to a family lawyer quickly about whether an urgent motion fits your facts and what the court location you are in expects.

• Write down dates, events and messages that show the risk, in order.
• Gather any existing court orders or separation agreements.
• Collect passports and travel documents details for you and the child.
• Note any earlier family or criminal proceedings, since an application must include details of them.
• Check the practice direction for your court location.
• Book advice from a family lawyer as soon as you can.

Frequently asked questions