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Tayken · #1 10-07-2012, 08:42 AM

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:

Quote:

[5] He has also directed me to the decision of Belch J in Hood v. Hood, [2001] O.J. No. 2918 (S.C.J. – Family Court) in which this definition was considered. Justice Belch refused to hear the motion in that case before a case conference. He commented, “It is my decision that an urgent motion within a court proceeding contemplates issues such as abduction, threats of harm, dire financial circumstances and these can be addressed prior to a case conference.”

[6] I agree with Justice Belch. However, given the apparent lack of direction in the caselaw about what constitutes urgency, I will add my comments about how I approach a request to proceed with an “urgent” motion prior to a case conference.

[7] The first step should be an inquiry as to when case conference dates are available to deal with the matter. If there is a particularly pressing issue, the trial coordinator should be made aware of this, as there may be times that could be made available for cases of urgency to avoid a motion. In this particular case, I was surprised to hear from Mr. Singer that he had made NO inquiry about available case conference dates prior to bringing his motion. He says he assumed from a case conference date that was assigned in another matter that there would be a wait of 3 to 4 weeks[1]. He was surprised to learn from me that there are dates available in this court on January 14 (two days from now); January 17 and 21 (Monday and Friday of next week) and January 24 (the following week). There are also several dates available after January 24.

[8] The availability of case conference dates is important in assessing urgency. Obviously, if a date was not available for several months, a situation that would not otherwise seem urgent might become more critical.

[9] The next step prior to bringing a motion should be to engage in settlement discussions to try to obtain a resolution of the pressing matters until the case conference date. The focus is on achieving a short-term agreement to get the parties through to the case conference date without a motion, rather than necessarily achieving a final resolution on all issues in the case. While the court will not want to hear about the content of offers that have been exchanged, due to the confidentiality provisions of Rule 18(8) it is important to know whether the parties have made some attempt to negotiate and, if not, why not.

[10] For example, if an urgent motion is being considered because an applicant is in dire need of support, it is helpful in assessing urgency for the court to know whether support has been requested from the other side and, if so, whether proposals have been made. Generally, counsel will advise the court of their positions as part of their opening statements on the issue of urgency. I have seen situations where a moving party “urgently” requests, for example, $2000/month support to see him or her through to the first case conference date. In assessing whether this motion is urgent or not, it will make a difference to know whether the other side is completely refusing to pay any funds or is prepared to pay enough money to address immediate needs but not necessarily the amount requested by the moving party. If the payor’s opening position to the court is that he or she will pay, for example, $1500/month rather than the requested $2000 until the case conference, the urgency becomes less compelling. A similar analysis could be applied to “urgent” motions for custody, access, etc. It is generally difficult to establish that a motion is urgently needed, absent any attempt to resolve the issues by negotiation prior to bringing the motion[2].

...

[30] All this material is objectionable. The husband’s affidavits are unnecessarily inflammatory. His one-sided version of facts, his failure to acknowledge any responsibility for the climate in which the children are living and, particularly, for Jessica’s state last Friday night, cause me to question his motives and his approach to this litigation. I urge him and his counsel to reconsider how they are proceeding and come to the case conference with several proposals for resolution that might allow the parties to create some semblance of peace for their children once a physical separation is achieved.

...

[33] This motion was not urgent and should not have been brought. Costs are to be determined at the conclusion of each step (Rule 24(10). Ms. Rosen is entitled to her costs of arguing this contested adjournment on close to a full recovery basis, given the unreasonable conduct of Mr. Rosen in commencing this motion without trying to book a quick case conference day first. For oral reasons given, order to go that Mr. Rosen pay Ms. Rosen her costs of today, fixed at $2500 plus GST and payable within 10 days.

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)

Quote:

[23] In considering the merits of Mr. Hyde bringing the urgent October 25 motion prior to a case conference, it is acknowledged that the Family Law Rules stipulate in Rule 14(4) that motions may only be brought after a case conference is held unless there is a situation of urgency or hardship. Further, it is accepted that decisions of our courts have held that permitting a motion to be brought before a case conference should certainly be the exception. At least two Justices of this court have commented upon the standard that must be met and the presence of urgency that is required. In Hood v. Hood, [2001] O.J. No. 2918 (S.C.J. Family Court), Belch J. commented that “an urgent motion within a court proceeding contemplates issues such as abduction, threats of harm, dire financial circumstances” and that these may be addressed prior to a case conference. In Rosen v. Rosen, [2005] O. J. No. 62 (S.C.J. Family Court) Wildman J. observed that whether urgency is present may in part depend on the existence of other circumstances, such as whether a case conference date was available on any sort of timely basis that would be responsive to the demands of the particular case. Both decisions make clear that it is not on a mere trifle that a motion should be permitted to be brought before a case conference, but rather only in the face of circumstances that show that a real standard of urgency can be met. Such circumstances might include, for example, real risk of material depletion or alienation of assets, real risk of harm to children if matters of custody are not resolved on an urgent basis or if a matrimonial home is not awarded exclusively to one spouse and the children, or real risk of material hardship being experienced by a custodial parent and children in the face of a non-custodial parents failure to provide support.

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

murphyslaw · #2 10-07-2012, 09:31 AM

Lawyers oversee the actions of other lawyers.What could possibly go wrong?

From what I have heard and overheard ,its a tactic to gain the upper hand without having the burden of proof.The "emergency" brings things into the "what if" arena.What if these allegations are true?What if the mother/father is a satan worshipper and will sacrifice on the full moon and that's tomorrow......

Here's a "whatif"....what if the lawyer had to pay out of their own pocket for bringing forward a frivolous motion?.I had the pleasure of reading one of these and it was so ludicrous and so full of lies and sheer fabrication it was almost funny.Most of what was said could have been dis proven by a google search!Now ...if this wasn't money for nothing ..would the lawyer have gone through with it?

Tayken · #3 10-07-2012, 09:38 AM

Quote:

Originally Posted by murphyslaw

Lawyers oversee the actions of other lawyers.What could possibly go wrong?

From what I have heard and overheard ,its a tactic to gain the upper hand without having the burden of proof.The "emergency" brings things into the "what if" arena.What if these allegations are true?What if the mother/father is a satan worshipper and will sacrifice on the full moon and that's tomorrow......

Here's a "whatif"....what if the lawyer had to pay out of their own pocket for bringing forward a frivolous motion?.I had the pleasure of reading one of these and it was so ludicrous and so full of lies and sheer fabrication it was almost funny.Most of what was said could have been dis proven by a google search!Now ...if this wasn't money for nothing ..would the lawyer have gone through with it?

When you add Legal Aid Ontario into the mix you get:

"Allegations of nothing and your motions for free."

Now look at them yo-yo's that's the way you do it
You file an emergency in the SCJ
That ain't workin' that's the way you do it
Allegations that mean nothin' and Legal Aid for free

Now that ain't workin' that's the way you do it
Lemme tell ya them lawyers ain't dumb
Maybe get a cost award against your client
Maybe get a the judge to order a false status quo

We gotta call the police, Children's aid and all their friends as witnesses
We gotta move on this motion
We gotta move on an em-er-gen-cyyyyyyyyyy, ex-parte that is!

I want my...
I want my...
I want my Legal Aid...
I want my...
I want my...
I want my Legal Aid... for free that is...

murphyslaw · #4 10-07-2012, 10:16 AM

Lmao!!!!:d

wretchedotis · #5 10-07-2012, 03:29 PM

Excellent post!

Quote:

Originally Posted by Tayken

When you add Legal Aid Ontario into the mix you get:

"Allegations of nothing and your motions for free."

Now look at them yo-yo's that's the way you do it
You file an emergency in the SCJ
That ain't workin' that's the way you do it
Allegations that mean nothin' and Legal Aid for free

Now that ain't workin' that's the way you do it
Lemme tell ya them lawyers ain't dumb
Maybe get a cost award against your client
Maybe get a the judge to order a false status quo

We gotta call the police, Children's aid and all their friends as witnesses
We gotta move on this motion
We gotta move on an em-er-gen-cyyyyyyyyyy, ex-parte that is!

I want my...
I want my...
I want my Legal Aid...
I want my...
I want my...
I want my Legal Aid... for free that is...

Dire Straits! Great tune!

kidsRworthit · #6 10-12-2012, 02:19 PM

Quote:

Originally Posted by Tayken

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>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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Tayken · #7 10-12-2012, 03:50 PM

Quote:

Originally Posted by bthom

Determination of urgency conditions for Family Law Motions
<HR style="BACKGROUND-COLOR: #ffffff; COLOR: #ffffff" SIZE=1>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.
ffice

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>

Could you please cite the source of the information provided? (Web-link to the content quoted.)

kidsRworthit · #8 10-12-2012, 04:34 PM

Quote:

Originally Posted by bthom

Determination of urgency conditions for Family Law Motions

<HR style="BACKGROUND-COLOR: #ffffff; COLOR: #ffffff" SIZE=1>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.
ffice

ffice" /><O

></O

>

Quote:

Originally Posted by Tayken

Could you please cite the source of the information provided? (Web-link to the content quoted.)

Justice MacKinnon, Family Law Motions Seeking a Determination of Urgency (directive), [date not referenced]

sa_snoopin · #9 10-20-2012, 08:26 AM

Can you bring a motion after a settlement conference in which the judge refused to rule and only submitted a endorsement to settle issues?
Can that endorsement be converted to an order and how would I do that?
The respondent has refused to get a lawyer, refused to settle, and now is refusing to pay taxes on a property that
The applicant had to flea to due to abuse. No children involved, 30 year marriage. The home is jointly owned but applicant cannot afford and is not able to sell due to respondents refusal.

wife#2 · #10 10-20-2012, 10:47 AM

Thanks for this post about emergency motions. It is interesting to me because my husband has been to 2 in the past 2 years, neither of which met this criteria (as far as we can tell). I would love your opinion on the situation, as well as to help anyone in a similar situation. I find often in this system you can do all the research you want, consult with lawyers, but in the end, complete opposite. As far as we can tell from being in court repeatedly for the past 2 years, it all depends on the judge you get, which is why this system is completely broken!
In Aug 2011 my hubby's ex moved. Desite my hubby sending emails requesting that they discuss her move and the child (boy, now 10) school for the following year, the ex refuses to tell us where she is moving. The child is crying (no lie) all summer to us, confused what is happening. Litterly asking us where mom is taking him. So, one day after she moves (Aug 17) and 2 weeks before school, she emails hubby to say where she moved (30 min away) from both current school and us (we bought house 2 blocks from son's school). She tells him which school she wants him to attend in new neighbourhood and tells him to 'co-operate'. Access at this time is approx 45% hubby, 55% ex (temporary agreement, court signed). So of course hubby refuses this. Child has been in same school since kindergarden, 2 blocks from us. Ex calls immediate 'emergency' motion. 3 days before school, court. For once in 2 years, we win!!! Child stays in school near us and judge changes schedule to 50/50. Also orders OCL at our request. Costs are still to be determined in this matter.

Flash forward one year. OCL does their report over the fall/winter. Unfortunately, OCL recommends child primary residence be with mother and change schools to her location (I can write a 10 page agruement over this, but will try to stay on topic). Will just say that the only reason OCL gives is that hubby works shifts, and this can be confusing to child (BS, and we think extremely discrimatory against shift workers, but thats another topic for another time!) So OCL report is out in Feb. Our lawyer (who we use for advise, not court, can't afford anymore!) tells us they will have to have a case conference on this matter. So we wait. Ex and her lawyer know hubby is against new school or change to access. Aug 2012, ex calls 'emergency' motion to change school and access based on OCL report. No case conference, no nothing. We consult 2 lawyers and do a ton research, all seem to say status quo is never changed on an emergency motion. Needs to go to trial, need to have case conference, etc. This is pointed out in our affidavit, as well as that there is no harm at all to child to stay in this school until a proper trial, case conference, whatever.
End of story goes, ex wins, change of access from 50/50 to 30/70. Change schools. And worst even yet, awards her costs at $3000. Were we wrong to not just agree with OCL report? What happened here? Thanks all.

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