Without Notice Motions in Ontario Parenting Cases

Family court normally works on fairness: the other parent is told about your request and gets a chance to respond. But sometimes waiting would put a child or a parent at risk. A parent may fear that the child is about to be taken out of the province, or that telling the other side first would make things dangerous.

This article explains when Ontario family courts allow a motion without notice, how the process generally works, and what to expect afterwards. These motions are the exception, not the rule, so speak with a lawyer about whether your situation fits.

What a motion without notice is

A motion is a request asking the court to make a temporary or procedural order. A motion without notice is one where you ask the judge to decide before the other party is told or served. Ontario's guidance says you ask permission in your motion form, which is Form 14 or 14B, and file a draft Form 14D, and you do not serve the other party.

Because the other parent has no chance to speak, judges treat these requests carefully. For married or formerly married spouses, the Divorce Act lets a court make parenting orders, including interim orders, and an order can set schedules, conditions and supervision. A without-notice request asks for urgent relief before the other side is heard.

When courts allow it

Under rule 14(12) of the Family Law Rules, a motion without notice is allowed where notice is unnecessary or not reasonably possible, or there is an immediate danger that a child will be removed from Ontario or to someone's health or safety and delay would probably have serious consequences.

Whether your situation fits these grounds depends on the facts, so it is worth confirming with a lawyer. This is the reason people with safety concerns, such as family violence, often need to explain clearly what has happened. The Divorce Act defines family violence broadly, including coercive and controlling behaviour and harassment such as stalking.

Evidence and what to put in your affidavit

A motion usually depends on a sworn affidavit. The Superior Court practice direction allows one primary affidavit per party, with at most 12 pages of narrative for short or regular motions and 20 pages for long motions. Exhibits should not exceed 10 pages and must be limited to necessary and relevant evidence.

The same direction says not to include voluminous texts, emails or social media postings, and to attach only relevant excerpts. If you are unsure which messages matter, a lawyer can help you choose. It also helps to keep the originals of any messages and note their dates.

• A clear, dated timeline of the events that make the matter urgent.
• Why waiting, or telling the other parent first, would be harmful.
• Only the relevant excerpts of messages or emails.
• Any existing order or agreement, and travel or passport details if removal is the worry.
• What exact order you are asking for.

What happens after the judge decides

After a without-notice order, you usually must return to court within 14 days so the other party can respond. The judge then decides whether the order stays, changes or ends. The order is therefore often a short-term measure to protect the situation until both sides can be heard.

There is a risk side. Costs may be ordered against a party if the motion was not necessary. That is another reason to be sure the situation fits the grounds, and to get legal advice first if you can.

The practice direction also states that urgent motions brought without notice do not need to be confirmed, meaning no Form 14C confirmation is required, and that urgent motions are generally heard virtually unless the court orders otherwise.

What to do next

If a child has been abducted by a family member, Ontario's guidance is to call 911 or local police. If you fear a child will be removed from Ontario, tell a lawyer right away, and consider whether a passport safety list is relevant, since Passport Canada describes adding a child's name to one if you fear an application without your consent.

• Write down exactly why the matter cannot wait.
• Collect any existing order or agreement, because enforcing parenting time and decision-making needs one in place.
• Prepare short, relevant exhibits rather than your whole message history.
• Plan to return to court within about two weeks, with your evidence ready for the other side's response.
• Ask a lawyer to confirm the current forms and rules before filing.

Frequently asked questions