A motion is a litigation tool that helps you manage the court process by allowing you to potentially get a result before a trial. The type of order you seek from a court on a motion is generally one that temporarily deals with a major issue. It may be the real issue that brought you to court in the first place.
If you succeed in your motion, the decision will usually have temporary effect. It is possible, however, that even though the motion may be in advance of a trial, the decision that you want the judge to make could permanently decide the issue. For example, in a vaccination dispute where one parent wants to vaccinate the child(ren) and the other wants to wait, if the pro-vaccination parent is given the decision making power and uses it, this would permanently deal with the matter because they can't un-vaccinate the child afterward.
Motions are a major aspect of court action that require much preparation on the part of the client and the family law lawyer to increase the likelihood of success. Motions are expensive, financially, and timewise. This article will give you an introduction to the points in the process when a motion can be brought to court and what you can expect from a motion hearing.
Generally After a Case Conference
If a matter is urgent or there is hardship experience by a party, a motion can be brought immediately after an application is filed and even before a case conference.
An example of a situation that a court would consider “urgent” include a parent who has not seen their child in a long time due to the vindictiveness or anger of the other parent who has primary care of the child and has been blocking the other parent from visiting his or her child.
Another example of urgency may be when parents disagree about medical care for their child and want a court to grant them sole decision making for that health matter.
An example of a matter that a court would consider to be “hardship” to a party may include the sale of the matrimonial or family home because one party can no longer afford to pay bills and risks his or her credit rating and insolvency or bankruptcy.
The bar is high to meet the tests of urgency or hardship because you would be asking a court to decide a major issue before a trial and all the procedural steps in the law of evidence that form part of a trial. One of such procedural steps is making full disclosure between the parties.
There are other exceptional situations in which a motion before a case conference would be permitted, and your lawyer can help you understand whether your situation fits into one of those exceptions. You should expect a court to be reluctant to hear a motion before a case conference.
Without Notice?
Usually when bringing your motion to court, you will have to give notice to the other party by serving them with the motion documents. In exceptional situations, though, the Family Law Rules allow for a motion to be brought without giving notice to the other party.
The types of situations in which a motion can be brought and heard without notifying the other party are (1) when the circumstances make notice unnecessary, (2) there is immediate danger of a child being removed from Ontario and serving a notice would have serious consequences for the child, (3) there is immediate danger to the health or safety of a child or the party bringing the motion, or (4) where serving a notice would have other grave consequences.
If you want to bring a motion without notice, you should know that the bar is set high for making full disclosure of the situation, even if certain details are not flattering to you. Failing to be frank with the court would be grounds to cancel your request or cancel an order.
If you succeed in getting an order on a motion without notice, you’ll have to send a copy of the order to the other party immediately afterward. You can expect to have to appear again in court as soon as 14 days afterward to give the judge an update.
What Can I Expect At My Motion Hearing, including Fees?
Some motions are held by video conference and others are in person. You should speak with your lawyer or, if unrepresented, with the court to confirm which applies in your case. The party bringing the motion will be asked to present their argument first. The responding party will go second. The judge may ask questions.
For a regular motion (lasting a maximum of 1 hour) the documents your lawyer will have to write up will be a notice of motion and an affidavit. An affidavit is a document that contains information thought to be true by the person swearing to the truthfulness of the document.
There may also be additional documents required, depending on what you are asking for, such as a sworn financial statement. Your lawyer and staff will work with you to gather all the necessary information and facts to include in these important documents and file them with the court and serve them on the other party.
For a long or lengthy motion (lasting over 1 hour) the court requires the documents I mentioned above plus a statement of the law and how it applies to your situation called a "factum." The factum takes research and more time to prepare.
Plus, because the motion is expected to be longer than an hour, there will be more of the lawyer's time, and your time, required at the hearing. So, the reality is that long motions will cost significantly more in legal fees than regular motions. On the low end, a motion may cost an estimated $5,000 plus tax, and on the high end it may cost an estimated $20,000 plus tax.
Takeaway
A motion is like a slice of a trial. It decides a major issue in your matter and should be approached with care. One reason is the potential cost to you. A motion for a temporary order is generally left for after the case conference, which is after each party has made full disclosure of their economic position.
There are many aspects of your matter to consider before moving ahead with a motion, and I can use a strategy that is sensitive to your objectives and gives you the best chance of success.
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