What must happen before a motion can be brought?

Under the Family Law Rules, before a motion can be brought, there must be a case conference (unless both spouses agree on the issue). This is because a motion can only be brought forward regarding something already brought up in a case conference. However, there is an exception to this if there is an emergency/urgent situation. 

Before we discuss the exception, you may be wondering, what is a case conference? 

After your first appearance (unless your case does not require a first appearance), you will have a case conference. Essentially, you and the other party, your lawyers, and the judge will meet to discuss issues regarding the case, discuss information, and overall just give the judge a better understanding of the case and each parties respective positions. It is also where different ways and methods of resolving issues can be discussed. A case conference can be held multiple times, not just once. 

Family Law sub rule 14(4) states that no notice of a motion, or supporting evidence, can be served and no motion can be heard before there is a conference that deals with the substantive issues in the case and has been completed.

It is Family Law sub rule 14(4.2) that deals with the emergency exception, stating that sub rule 14(4) does not apply if the court believes that there is an emergent situation or situation of hardship, or that a case conference is not required for another reason in the interest of justice.

Regarding the exception to the requirement of a case conference before a motion. you will need to prove urgency or hardship. Some examples include your child’s safety being at risk, your safety being at risk, not having safe living conditions, etc. We will discuss the process of putting an urgent/emergent motion forward more in detail later.

As a note, motions also require evidence to be brought forward, which would be in a motion record that contains:

1. An affidavit that discusses the facts in terms of the motion
2. An exhibit that includes documents regarding the affidavit
3. A notice of motion

What is the difference between a temporary or an interim order?

When it comes to court, the process can take quite a while, so it is likely that you may have some decisions you want to have made, even if only temporarily, while waiting. A temporary or interim order can help with this. An interim order, under the Family Law Rules, falls under the temporary order umbrella. 

Temporary order: In place until another temporary order is made regarding the same issue, or until a final order is made

Interim order: Lasts between the date of the order and the date of the trial

How do you bring an urgent motion to get a temporary order?

If you want to get an urgent motion to get a temporary order, it would be before the case conference, and, as we discussed earlier, this means that there would have to be an emergency situation, you are facing hardship, etc. 

Without notice:

You might be able to get ex parte from the court, which is an order without notice. The other party (your spouse), would not know about this order until the judge considers it. Furthermore, the judge only hears from one party rather than both. Keep in mind though that an order can be dismissed if it is found that you are dishonest, so make sure to give all the facts, and give them truthfully. An ex parte is often utilized for child custody issues 

With notice:

However, you can also bring forward an urgent motion with notice. If you are going this route, you will need to serve the other party with a Notion of Motion (Form 14), including an affidavit copy; also, so they can attend the hearing you need to notify them no more than 6 days before the motion date. 

When bringing forward an urgent motion, you can do it at any time during the case, even before the case begins. 

As with everything, it is up to the judge’s discretion whether or not to grant you a temporary order. You must bring forward specific evidence pertaining to your request.  

How do you bring a non urgent motion for a temporary order?

To bring a non-urgent motion forward to get a temporary order, you can request for the court to put in a court order; if all parties agree, you do not even need to appear before the judge for this. 

Now, there are two types of non-urgent motions:

     1.  Without consent

This is when your spouse does not agree with the motion. This has to be done after the case conference, unless it is an urgent motion, which we have already discussed.

     2.  With consent

This is the motion when your spouse agrees with it. A non-urgent motion with consent can even be brought forward before the case conference with no issue because you and your spouse agree. 

How do you convert a minutes of settlement or consent order into a temporary order?

First, what is a minutes of settlement? Sometimes, things are agreed on outside of court which is great, but, like everything, has a due process to make it official. Minutes of settlement are usually a product of negotiation and/or mediation. It is a written record of an agreement between you and your spouse. If court action has not begun yet, you would prepare a separation agreement, not a minutes of settlement. Minutes of settlement are what you prepare when court action has already been taken; they must be shown to all parties for signatures, and be endorsed by the judge. 

After creating a minutes of settlement and having it approved, you can make a request to the court for a consent order; then, the terms of the minutes of settlement are able to be converted into a formal court order (by consent). You will need to fill out the following forms for this to happen:

1. Have stamped envelopes addressed to you and the other party, your spouse, if you would like for the order to be mailed to you (other options are picking it up yourself, having it faxed, etc)
2. Form 14B: Motion Form
   1. List the orders that you are requesting for the court to make
   2. Attach the minutes of settlement showing the orders that you and your partner have agreed to
3. Form 25: Order – List the orders that you would like the judge to sign