Court Procedure: Urgent and Emergency Motions

How soon can I get a judge to make a decision?

In a typical family law case, you must follow the established court procedure before you can bring a motion asking a judge to determine an issue. This means you must first:

  1. Prepare and serve your application;
  2. Wait for a response;
  3. Attend the Mandatory Information Program;
  4. In some cases, attend an administrative step known as a first appearance;
  5.  Attend a case conference.

At the case conference, the parties have a chance to discuss the issues in the case and the possibility of resolution before proceeding to trial. Under the Family Law Rules, you can not bring a motion for temporary relief until after you have attended the case conference, but there are some narrow exceptions in the case of urgency or hardship.  

Urgent Motions With Notice

Sometimes there are situations where the delay in hearing a matter through the normal course would result in harm. Such cases may involve threats of child abduction (not merely mobility issues) or dire financial circumstances that must be addressed prior to a case conference. It is important to note that denying access by itself is not necessarily a case of urgency. Similarly, issues relating to property are not urgent unless they deal with depletion of assets. Urgent motions are made with notice to the other party, but are heard in an expedited fashion.

Urgent Motions Without Notice (Emergency or “Ex Parte” Motions)

If there is a real risk of physical harm to a party or a child an urgent motion without notice may be appropriate. Urgent motions are only used in exceptional cases; they are not allowed as a matter of course since the right to participate and provide a full answer and defence is the cornerstone of our legal system. As such, there must be a real risk of abduction, or a threat of harm to a party of a child.

These motions are brought ‘without notice’ as there may be serious consequences if the opposing party is given a ‘heads up’ that they will be going to court. For instance, they may use the time between receiving notice of a court application to deplete assets or leave the country with a child.

If you are bringing an emergency notice without motion, the onus will be on you to demonstrate why it is necessary.

A Few Notes on Procedure

In both cases, the first step is to ask a judge for permission to bring an urgent Motion.  Before you argue the Motion, a judge must grant you leave.  Once the judge is satisfied there are grounds to bring an urgent Motion, either they will hear the Motion that day, or it will be scheduled for a future date.  In Ottawa, requests for leave are typically heard on Tuesday and Thursday mornings.

In Ottawa, a court proceeding must be started before you request leave to bring an urgent Motion.  The Application must be issued at least one day before you request leave.