Legal “Truisims” Exposed?: The Emergency ex-parte Motion in Family Law
Welcome to my first edition of Legal “Truisms” Exposed?.
This posting is exploring the obligations of an Applicant when filing an “emergency” ex-parte motion in Family Court. Although the case law for which I review and rely upon originates in Ontario this in my personal opinion is a common expectation that could hold true in any Canadian court jurisdiction in Family Law.
“Truism” Defined
The Honourable Mr. Justice Pazartz first identified the use of the term “truism” and I attribute the use of this term in case law where an Office of the Children’s Lawyer (OCL) social worker “acknowledged a couple “truisms” well known among lawyers, judges, social workers – and frequently litigants themselves.”
Two “truisms” were identified in this case law by Justice Pazaratz:
1. The first is that “status quo” is important. Perhaps the first piece of legal advice separated parents get is that temporary arrangements often come to be self-perpetuating. That’s why parties work so hard to stake out their turf; create patterns; and obtain favourable temporary (or even temporary-temporary) orders.
2. The second truism relates to the simplistic correlation between “joint custody” and “conflict”. Although obviously a gross oversimplification, many parents come to perceive that if someone wants joint custody they have to be able to get along with their estranged partner. The obvious corollary: if you can’t get along; if you can’t communicate; if there’s lots of conflict, then joint custody is unlikely to be imposed.
I hypothesize that both truisms carry equal weight when considering the conduct of a moving party when bringing forward an “emergency” ex-parte motion before the court. Often, an “emergency” ex-parte motion is brought forward for the sole purpose of establishing a favourable “status quo” for the moving party (“truism” #1). This conduct is often done to create “conflict” before the court and to damage the opportunity to establish “joint custody” by the responding party (“truism” #2).
The results of most orders from an “emergency” ex-parte motion generally including a restraining order against the responding party and/or a mutual restraining order against both parties which effectively ends “communications” between the two parties as “parents”.
Interestingly, Justice Pazaratz effectively puts assessors and the courts on notice that they are expected to, obligated to, and to address and seriously sanction this kind of strategic behaviour intended to create an false status quo and identifies that is often tantamount to child abuse explicitly stating:
Applying These “Truisms” to Ex-parte Orders
The isolating factors of an emergency ex-parte motion and the impact on children due to the potential elimination of a parent and effectively ending parental communications should seriously be considered by any lawyer and their client prior to bringing forward this kind of motion. The impact can have a long and lasting impact on parental communications in the future. If brought improperly and only as a legal tactic (“truism”) may in fact be “child abuse” if we consider Justice Pazaratz’s position.
When a moving party brings forward an “emergency” ex-parte motion they are doing this in absent of the other party’s rights under the Charter to be present to defend themselves. A justice is asked to make an order solely on the “evidence” presented by the litigant bringing forward the request for relief. Rarely in Canadian justice is this allowable but, a pattern has emerged in which this is occurring all too often before our family courts and in 2011 the Honourable Justice Victor Mitrow addressed this growing trend in Family Law.
Case On Point?
J.A. v. O.G., 2011 ONSC 3302 (CanLII)
Date: 2011-06-14
Docket: F1455/08
URL: CanLII - 2011 ONSC 3302 (CanLII)
... continued ...
Welcome to my first edition of Legal “Truisms” Exposed?.
This posting is exploring the obligations of an Applicant when filing an “emergency” ex-parte motion in Family Court. Although the case law for which I review and rely upon originates in Ontario this in my personal opinion is a common expectation that could hold true in any Canadian court jurisdiction in Family Law.
“Truism” Defined
The Honourable Mr. Justice Pazartz first identified the use of the term “truism” and I attribute the use of this term in case law where an Office of the Children’s Lawyer (OCL) social worker “acknowledged a couple “truisms” well known among lawyers, judges, social workers – and frequently litigants themselves.”
Two “truisms” were identified in this case law by Justice Pazaratz:
1. The first is that “status quo” is important. Perhaps the first piece of legal advice separated parents get is that temporary arrangements often come to be self-perpetuating. That’s why parties work so hard to stake out their turf; create patterns; and obtain favourable temporary (or even temporary-temporary) orders.
2. The second truism relates to the simplistic correlation between “joint custody” and “conflict”. Although obviously a gross oversimplification, many parents come to perceive that if someone wants joint custody they have to be able to get along with their estranged partner. The obvious corollary: if you can’t get along; if you can’t communicate; if there’s lots of conflict, then joint custody is unlikely to be imposed.
I hypothesize that both truisms carry equal weight when considering the conduct of a moving party when bringing forward an “emergency” ex-parte motion before the court. Often, an “emergency” ex-parte motion is brought forward for the sole purpose of establishing a favourable “status quo” for the moving party (“truism” #1). This conduct is often done to create “conflict” before the court and to damage the opportunity to establish “joint custody” by the responding party (“truism” #2).
The results of most orders from an “emergency” ex-parte motion generally including a restraining order against the responding party and/or a mutual restraining order against both parties which effectively ends “communications” between the two parties as “parents”.
Interestingly, Justice Pazaratz effectively puts assessors and the courts on notice that they are expected to, obligated to, and to address and seriously sanction this kind of strategic behaviour intended to create an false status quo and identifies that is often tantamount to child abuse explicitly stating:
Creating a favourable status quo through falsehood and misrepresentation is not just a matter of litigation strategy: It is often tantamount to child abuse. It goes to the heart of “best interests” considerations; Parental judgment; The ability to sacrifice self-interest for the sake of the child; Awareness of the child’s need to have maximum contact with both parents.
If past behaviour is a predictor of the future, assessors and courts have an obligation to address – and seriously sanction – common and predictable strategic behaviours intended to create an inappropriate status quo.
If past behaviour is a predictor of the future, assessors and courts have an obligation to address – and seriously sanction – common and predictable strategic behaviours intended to create an inappropriate status quo.
Applying These “Truisms” to Ex-parte Orders
The isolating factors of an emergency ex-parte motion and the impact on children due to the potential elimination of a parent and effectively ending parental communications should seriously be considered by any lawyer and their client prior to bringing forward this kind of motion. The impact can have a long and lasting impact on parental communications in the future. If brought improperly and only as a legal tactic (“truism”) may in fact be “child abuse” if we consider Justice Pazaratz’s position.
When a moving party brings forward an “emergency” ex-parte motion they are doing this in absent of the other party’s rights under the Charter to be present to defend themselves. A justice is asked to make an order solely on the “evidence” presented by the litigant bringing forward the request for relief. Rarely in Canadian justice is this allowable but, a pattern has emerged in which this is occurring all too often before our family courts and in 2011 the Honourable Justice Victor Mitrow addressed this growing trend in Family Law.
Case On Point?
J.A. v. O.G., 2011 ONSC 3302 (CanLII)
Date: 2011-06-14
Docket: F1455/08
URL: CanLII - 2011 ONSC 3302 (CanLII)
... continued ...
Comment