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Old 10-12-2012, 02:19 PM
kidsRworthit kidsRworthit is offline
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Default Determination of urgency conditions for Family Law Motions

Quote:
Originally Posted by Tayken View Post
Rosen v. Rosen, 2005 CanLII 480 (ON SC)
Date: 2005-01-13
Docket: 20391/05
URL: CanLII - 2005 CanLII 480 (ON SC)
Citation: Rosen v. Rosen, 2005 CanLII 480 (ON SC),

Many people come to this site with "urgent" or "emergency" situations. The above case law is a great summary of what defines an "emergency" for which a motion can be brought forward before a case conference.

Many come that the situation in their home is so dire that they have to have exclusive possession and that it is an "emergency". More than likely, it is not and this is how the court may determine so:



More on the matter of "urgency" can be found here:

Hyde v. Szabo, 2007 CanLII 46168 (ON SC)
Date: 2007-11-01
Docket: 4740/05
URL: CanLII - 2007 CanLII 46168 (ON SC)
Citation: Hyde v. Szabo, 2007 CanLII 46168 (ON SC)



This case law should be considered by any litigant and their counsel before bringing an "urgent" matter to court before case conference.

In light of this case law, any barrister and solicitor who brings a motion on an urgent (emergency) basis before the court that does not meet this criteria in my personal opinion should have costs awarded against them. It should fall on the lawyer representing their client on the "urgent" request to insure that their client's evidence brought forward meets the criteria.

Furthermore, Legal Aid Ontario should be responsible for financing and funding litigants who bring "urgent" matters prior to case conference on an "emergency" basis. LOA lacks the governance structure to insure that public funds are not wasted on frivolous matters and should be accountable to both parties to the litigation for how public funds are used and possibly abused.

Good Luck!
Tayken
Determination of urgency conditions for Family Law Motions
<HR style="BACKGROUND-COLOR: #ffffff; COLOR: #ffffff" SIZE=1><!-- / icon and title --><!-- message -->Family Law Rule 14(4) provides that a motion can’t be served or heard before a case conference has been held unless it is a decision of hardship or urgency or in the interests of justice not to require a case conference. Note that an urgent motion is not necessarily synonymous with a motion without justice. Both should be infrequent but the test found Family Law Rule 14 (12) to justify proceeding without notice is very stringent.

Test met: immediate danger of the children’s removal from Ontario, immediate danger to the health and safety of the children, or irreparable harm, or solid evidence of urgency from the children’s perspective; abduction, threats of harm, dire financial circumstances, or financial hardship to the children documented by particulars of their unmet needs.

Test not met: mere fact of being in receipt of social assistance, mere fact of denial of access, anticipatory breach of parenting regime based on "fear" without foundation, issues of timing or convenience personal to, or caused by the moving party, mother's request to move children; alleged urgency is her need to meet her employer's notice requirement, mother's request for child support brought on the basis that father had stalled and delayed for 1.5 years already.
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