Urgent motions in family law

Motions are typically used in family law for temporary orders. However, Rule 14 of the Family Law Rules clarifies that motions cannot be brought before a case conference (i.e. the first court proceeding designed to narrow or resolve the issues on consent). This becomes problematic when there is urgency in the case. Therefore, Rule 14 also provides a mechanism to have a motion heard before a case conference if the court is of the opinion there is urgency. When will a court decide that a motion is urgent?

There is a formal procedure to successfully bring an urgent motion. The leading case on this procedure is Rosen v Rosen, [2005] WDFL 897, 136 ACWS (3d) 327. A more recent, D. Jr. v. T., 2022 ONSC 1441, outlines that procedure:

The Rosen test for urgency involves a two-step inquiry and is generally related to situations involving abduction, threats of harm and dire financial circumstances. This list is not exhaustive. The first step requires an inquiry when a case conference date is available. Absence of a proximate date may elevate a situation to urgent. The second step before bringing a motion obligates the parties to engage in a good faith dialogue to ascertain whether some temporary, reasonable compromise can be achieved pending the conference. Context is important. In Rosen, Wildman J. contrasted the situation where support was desperately needed, but refused, with a less compelling situation where the amount of support offered was within a reasonable range of the request.

Generally, urgency will depend on how soon a case conference can be scheduled and whether the moving party sought to negotiate before going to court. But cases since Rosen, such as Kobow v Kobow, 2007 ONCJ 514, have clarified:

11 …[E]ven absent attempts to obtain an early case conference date or attempts to resolve the matter prior to a case conference, there are cases where the facts require a motion to be heard prior to the case conference.

The proper procedure should be followed. However, Kobow demonstrates that the failure to follow the proper procedure will not always be fatal for urgent motions.

Whether the facts constitute “urgency” will be determined on a case-by-case basis. The case of D. Jr. v. T, explains that these are generally cases where there is “…abduction, threats of harm and dire financial circumstances.” But as iterated, this is a non-exhaustive list.

In Gifford v Gifford, 2016 ONSC 7254, the parties separated, and the mother left the matrimonial home with the child without telling the father where she was going or where the child would be. In effect, the father had no parenting time. The father brought an urgent motion for parenting time before a case conference. The evidence demonstrated that the mother may have done this to secure a better custody decision in court. Considering there was already a great deal of conflict between the parties, the court found that this case was urgent because of the potential for it to increase further conflict:

12 In this case, while I do not find that Trevor was "abducted", I find that it was appropriate for Mr. Gifford to bring an urgent motion before a Case Conference. In Hurd v. Hurd, [2006] O.J. No. 1840 (Ont. S.C.J.), the Court found that where a parent is denying any contact whatsoever in what could quickly escalate to a high conflict case, an interim Order for custody could precede the holding of a Case Conference. The combination of leaving the residence with the child, providing no address, and then not complying with access terms negotiated between counsel, in my view makes this matter urgent within the meaning of Rule 14(4.2). Ms. Gifford’s conduct could easily have increased the already "hot" temperature of this matter. Both parties are encouraged to take a step back and to think long and hard about what this separation could become if they do not change the present course. Now is the time for sober reflection, not after they have each spent a small fortune on litigation.

Obvious takeaways? Normally, parties who wish to bring an urgent motion must first check for the next available case conference date. Parties must also try to negotiate prior to. Whether a situation is urgent will depend on the facts, but the court has stated that “...abduction, threats of harm and dire financial circumstances” will generally be considered urgent.