Litigation: The Family Law Process - Motions
In the family law process, motions are used when a temporary decision is required before a final decision is reached in the matter.
Welcome back to part 8 of our Family Law Process series. These posts will go through the family law process from start to finish, and will identify what you can expect to occur at each step. Please note that it is possible that not all of the steps will occur in your family law matter.
5. Serving and filing court documents
6. Mandatory Information Program
7. Conferences
8. Motions
9. Trials
Motions
In the family law process, motions are used when a temporary decision is required before a final decision is reached in the matter (usually this involves going to trial). The court process is lengthy and decisions can take months, and therefore motions may be used when necessary. An individual bringing the motion is known as the moving party, and the opposing party is known as the responding party. There are 3 types of motions:
1) Procedural, uncomplicated, or unopposed motions
2) Motion for temporary orders
3) Motion without notice (ex-parte motion)
Evidence in a motion is provided to the court via written format, and the forms that are to be completed are spoken about below. The court will only consider the information in the materials provided, and hence, it is important that you include all relevant information in your materials for the judge to consider.
Procedural Motions
A procedural, uncomplicated or unopposed motion, as it may be called, is where the party is asking the court for an order in making a procedural matter. This type of motion may also be used when both parties agree on the issue and are asking the court to transfer the agreement into a court order. For instance, the schedule for parenting time, or asking the court for permission to file a document when the deadline has passed. When bringing this type of motion, the following forms must be completed:
1) Form 14B Motion Form;
2) Form 14A Affidavit;
3) Updated Cumulative Table of Contents;
4) Support Deduction Order and Support Deduction Order Information Form if asking for child or spousal support; and
5) Form 25 Order and written order/minutes of settlement if bringing a motion on consent.
Motion for Temporary Order
Temporary court orders made by a judge will remain in place until the court orders a different temporary order, or makes a final order as the case proceeds. When bringing this type of motion, usually the following forms must be completed:
1) Form 14B Motion Form;
2) Form 14A Affidavit;
3) Updated Cumulative Table of Contents;
4) Form 13 or 13.1 Financial Statement or 14A Affidavit if the motion related to child support, spousal support or property; and
5) Support Deduction Order and Support Deduction Order Information Form if asking for child or spousal support.
Timing
A procedural motion may be heard at any time, whereas a motion for a temporary order cannot be. A motion for a temporary order can only be heard once the parties have attended at least one case conference discussing their issues. Rule 14 in the Family Law Rules states that a party cannot bring a motion for temporary orders unless they have attended a case conference. That said, motions can be brought to court before a case conference has been conducted if there is a risk of urgency and/or hardship. For instance, if you or the child’s safety is at immediate risk, or a support order is required to provide basic living conditions.
After the forms have been completed, they must be served to the responding party at least 6 days before the date of the motion. The motion forms as well as the Form 6B Affidavit of Service must be filed with court at least 4 business days before the date of the motion. A Form 14C Confirmation of Motion must be served and filed with the court as well no later than 3 business days before the date of the motion.
Motion Without Notice (Ex-Parte Motion)
As mentioned above, there are very few occasions where a motion can be brought to court without telling the responding party. The responding party is unaware that you are asking the court to make an order and will not have the opportunity to tell the court their side of the matter. A motion without notice may be used in the following circumstances:
1) Notice is not reasonably possible- for instance, the opposing party cannot be found.
2) You or your child is in immediate danger- for instance, the opposing party may try to remove the child from the home.
3) There is an immediate danger to the health and safety of the child.
4) Serving the notice would have serious consequences.
Just as with the other motions, you will be required to complete the same forms, but will also need to complete Form 14D Order on Motion Without Notice as well as ask for the court’s permission to bring your motion without notice.
Costs
If a judge determines that the motion was not necessary, the court may order you to pay the opposing party’s legal fees in relation to the motion.
To note, the above should not be taken as legal advice, and if you have any questions or concerns about your case please speak to a lawyer. To find out how we can help you with your matter, please visit our website at https://www.grantleelaw.ca/ or call us at 905-315-6837 to book your consultation now.
