How do I go about starting an urgent motion?

[EspoirN]

Thank you for the links and the explanation. I waited 14 months for good valid reasons, waiting for his disclosure and building my own evidence.

So when I called the court and asked for the date, I was told they only give dates for regular motions. For an urgent motion I have to come in the morning on Tuesday or Thursday when they hear procedural motions and then get permission to get an expedited date, this is in Ottawa. does this sound correct? And for procedural motions when does the respondent need to be served? - Also 6 days before the motion? This is where I’m lost in this process and would appreciate some insight.

[Tayken]

To clarify there are two types of motions:

1. Urgent with notice.

https://familycourt.cleo.on.ca/en/ap...-motion-notice

2. Urgent without notice (ex-parte).

https://familycourt.cleo.on.ca/en/ap...without-notice

Often people refer to #2 the Urgent motion ex-party as an "emergency motion".

Basically what you are seeking is #1. But, you will have a hard time as it appears you have waited 14 months to act on your file which as brought on this urgent motion. You are responsible to move your matter forward. Even as a self-rep. As a self-rep, you are expected to know the law and process as well as a lawyer. This is why 99% of people should not self rep.

[Stillbreathing]

What I did when I was self rep and needed an urgent motion for a financial matter, is I went to the court, spoke to the ladies at the trial co-ordinators office and they gave me a court date. Then I served my ex and his lawyer.

[EspoirN]

This is what I don’t understand, how does one apply for an urgent motion then? Emergency motion is experte from what I understand (please correct me if I’m wrong here), but urgent motion is one where I do serve the Respondent. So then, how do I get an urgent date for the urgent motion and when should I serve documents on the Respondent ? I would appreciate if you could explain what are the steps in the process. Thank you.

[Stillbreathing]

If you apply for an emergency motion and it is not a matter of life or death for your children you will have a strip torn off you by a judge. Do not apply for an emergency motion unless it is actually an emergency! In my case it was an emergency, therefor the judge agreed to hear my pleadings without my ex having the Benefit of responding. The judge made an immediate order right then and there to ensure the immediate safety of the children. The reason the judge ordered me to come back the following week and to serve my ex was in the name of fairness and to get both sides of the story. This is because sometimes a parent will lie and make up stuff in order to get sole custody and deny their ex visitation rights. Had he not ordered me back in a week’s time and my ex to be served, that would have been a gross miscarriage of justice. The judge did not know my ex or myself from a hole in the ground. He made a decision and an order to protect our children based 100% on my affidavit material. It was reasonable to expect my ex to be notified and given the opportunity to respond the following week.

Unless your children are in immediate danger I would advise against an emergency motion and just file an urgent motion instead.

[EspoirN]

Ok, thank you so much, this helps. The concept of these emergency vs urgent motions is a bit confusing. So I should serve the Respondent the complete paperwork for my urgent motion, go to the courthouse with what I served, and go to an emergency motion that same day only to book a date for an urgent motion for six days later (whatever is the next available date for urgent motion), the judge might then book the urgent motion for 6 days later, giving the Respondent the six days to reply. Or, the judge might reject my urgent motion (at the emergency motion sitting), in which case I should still be able to get a date for a regular motion. Does this sound correct?

[Stillbreathing]

That sounds right. I had gone to court and made an emergency motion without notice to my ex. The judge heard my motion that day, gave me temporary full custody and my ex no contact with the children until the following week when he had been served and we both appeared before the judge. This second appearance was an urgent motion as opposed to an emergency motion. After hearing more detailed evidence at the urgent motion the judge still wanted my ex to have no contact with the children.
An emergency motion is when there is imminent danger and can be heard immediately without notifying the other party. An urgent motion is urgent but not an emergency, therefore the other party needs to be notified and has a small amount of time to respond.

[EspoirN]

It is just heartbreaking that on the one hand the courts put the best interests of the child first, yet they let divorces drag on for 10 years. Does anyone consider what impact that has on the child? On the parents, especially the parent who really does have the best interests of the child at heart?

I have one other question regarding an urgent motion. I was under the impression that for an urgent motion there is no time stipulated when the Respondent is to be served, that all I have to do is show proof that he was served, so I would file the documents on the morning of, and sign up for the urgent motion on that same day. However, now, on the website stepstojustice.ca, I read that even for an urgent motion, the applicant has to serve on the respondent the documents 6 days prior to the motion being heard... Is that so? So that would mean that if I serve my motion documents on the Respondent today, I can only go to court to have my motion heard 6 business days from today? I

[Stillbreathing]

No my matter is not yet resolved. We are going into our 9th year of litigation. This year in 2019 we finally resolved custody ( permanent supervised access). We have not resolved any other issues despite the fact my lawyer and I have sent multiple severable offers to settle. All of which he ignored. He has not sent one single offer to settle on any issue during all these years. My ex has a catastrophic brain injury and received a large settlement. His lawyer has been milking him for every penny. I’m hoping that 2020 is the year we finally settle everything. We shall see.

[EspoirN]

Thank you so much for your detailed answer. Thankfully I have already gathered proof of his apartment abroad which he denied was in his name solely. So I now have proof and whatever he does, it will be after we separated, so he is out of luck. The house is solely in my name, title, mortgage and 46k owed in credit line, all acquired during marriage, which is disproportionate debt, as he does not have any credit cards even, because he never wanted to have one in his name, was afraid of debt. So I think I know where I will be going with this. Is your matter resolved now?

[Stillbreathing]

The court does have remedies available to punish those who disobey court orders. There are several realities about family court you need to keep in mind.

1) contempt findings are rarely made even if the party does meet all 3 criteria to be found in contempt. Family judges do not like to make this finding for fear of increasing the acrimony between the parties ( especially if children are involved). Even a finding of contempt does not mean you will see a dime.

2) the wheels of justice are rusty and make snails look like race cars. It can take years ( or as in my case nearly a decade) to get to trial! Even after trial you then need to get enforcement of the order. Yes FRO has enforcement tricks up there sleeve but they too work much slower than a snails pace. They won’t even consider doing anything until your ex is at least 6 months or thousands of dollars in arrears. If he gets paid cash under the table there is not much they can do. They can take his drivers license and passport but again, this will take years before they do. If your ex is like mine he can put his millions in his sibling’s name and put the title of his house in their names too which will cause you to have to go back to court and ask a judge to make the siblings parties to your divorce.

3) if you are on the verge of insolvency you have to find a solution on your own. It may take you years or decades to get the money you are owed if you get it at all

4) as far as equalization payments go, unless the proceeds from the sale of the matrimonial home are in trust and cover the amount you are owed, you’re out of luck and you’re on your own to collect. In other words you will have to place a lean against his home or have a sheriff seize his assets ( if they are still in his name)


5) jail time is a rarely used option and even if used will not get you the money owed

6) because the wheels of justice move so incredibly slow, Justice can not always be had. This painfully slow movement of time is heaven for somebody like your ex. It gives them time to move all their assets offshore, put their assets in a family trust with them as the sole beneficiary but their siblings named as trustees therefor putting their assets out of FRO’s reach, putting their homes or vehicles or business in another person’s name, etc. Meanwhile, if you go bankrupt or in my case the kids and I live for a period of time out of our car, the court does not care!!!

Do not for one minute confuse reality with family court justice. The two are not related.

[EspoirN]

Thank you for the more optimistic response. Won’t the respondent be in contempt of court if they don’t follow the court order and pay? There is a credibility issue with the Respondent, I won’t go I to details here, but he was trying to conceal assets and has worked but not disclosed it. So I have no doubt that the judge will impute some income, the question is though ´how much’.
However, I am disillusioned that the court would do nothing to ensure that the order is enforced. Some people say that if the responsibility office is involved then wages can be garnished and drivers license and passport can be taken away from them, is that not so? And, if he owes a lot in arrears then it could be subtracted from the assets when equalization of assets is done, no??

[Stillbreathing]

Urgent motions in court are generally reserved for emergency situations involving the safety of the children... and yes you can bring an urgent motion about the children yourself as a self rep and be successful. I did.


Judges are far less likely to entertain an urgent motion if it involves finances even if it involves children. I brought an urgent motion by myself re:finances and although the judge released 5000.00 to me from money held in trust from the sale of the matrimonial home, that was not enough. That was 4 years ago. 5000.00 does not last 4 years for food, shelter and clothing .

To the above poster. The reality is that even if you get an order for child support, arrears, that your ex has to pay some of your bills, etc... enforcement and actually getting your money is a whole different ball game. If your ex refuses to pay it may take years to get your money if you get it at all. Best to cut your losses and do what is in your control to do. This may mean selling your home and renting or moving in with family. This is the unfortunate reality of family court.

[EspoirN]

I can’t afford it. I’m almost insolvent, and I don’t qualify for legal aid. Where is the access to justice?

[Tayken]

You need a lawyer. You won't be able to bring an urgent motion without one. As well, you could get slammed with costs. The complexity of bringing an urgent motion is very complex.