Ontario Family Court Urgent Motions: When Can You Get One?

If you fear that a child may be taken out of Ontario, or that you or a child are in danger, waiting for the normal court schedule may not feel possible. Ontario's family court rules allow for urgent motions in certain situations.

This article explains when a court may hear a motion early, when it may be heard without telling the other person first, and what happens next. If anyone is in immediate danger, call the police first.

The usual rule and the urgency exception

A motion is a request to the court for an order, and a motion to change is the step used to change a final order, a support agreement filed under s. 35 of the Family Law Act, or a family arbitration award. Generally, no motion may be heard before a case conference on the substantive issues has been held. That rule does not apply if 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.

Urgency is decided by the court on the facts. Practice directions can add requirements for urgent motions that differ by region, so check with the court office where your case is filed.

When a motion can be heard without notice

Normally the other party is told about a motion and can respond. A motion without notice is allowed only in limited cases. The rules allow it if one of the following applies:

• notice is unnecessary or not reasonably possible;
• there is an immediate danger of a child's removal from Ontario, or to the health or safety of a child or the moving party, and the delay of serving notice would probably have serious consequences; or
• serving notice would probably have serious consequences.

These grounds are narrow. Your evidence should show clearly why telling the other person first would cause harm.

What happens after an order without notice

An order made without notice must require the matter to come back to court, to the same judge if possible, within 14 days or on a date the court chooses. The order must be served immediately on all affected parties.

There is a risk if the court decides notice was needed. In that case, the party who moved may have to pay the other side's costs. That is why it is worth getting advice before asking for an order without notice.

Related protections for safety and for a child who is withheld

Where a child is unlawfully withheld, the court may direct a police service to locate, apprehend and deliver the child to the person named in the order.

A restraining order is another option. Under the Family Law Act, the court may make an interim or final restraining order if the applicant has reasonable grounds to fear for their own safety or for the safety of any child in their lawful custody. It can be made against a spouse or former spouse, or a person who is cohabiting or has cohabited with the applicant for any period of time. If you were never married to or lived with the other person, in a parenting case the Children's Law Reform Act s. 35 lets the court make a restraining order against any person on the same fear-based test.

To apply, start a case with Form 8 (Application (General)); for an urgent temporary order, use Form 14 (Notice of Motion) and Form 14A (Affidavit). Disobeying a restraining order is a criminal offence, so call the police if it is breached.

What to do next

Where notice is given, motion forms must be served at least 6 business days before the motion date and filed, with Form 6B, at least 4 business days before. Form 14C (Confirmation of Motion) must be filed by 2:00 p.m. three business days before, or the motion will be cancelled. Urgent cases may be handled differently, so ask the court office.

• If anyone is in immediate danger, call the police.
• Write down the specific facts that make the situation urgent, with dates and any messages or records.
• Ask the court office how urgent motions are scheduled where you are.
• Consider Family Court Support Worker help if you are a victim of domestic violence, including safety planning and getting to and from court safely.
• Get legal advice before moving without notice. Judges and court staff cannot give legal advice.

If you cannot afford a lawyer, duty counsel at family courthouses may give 20 minutes of free advice, whether or not you are eligible for legal aid. The Urgent/Emergency Family Law Referral line gives free telephone advice to people without a lawyer.

Frequently asked questions