About this time last year Jodi Armstrong, another family law lawyer at Barriston Law, wrote a blog entitled “What to Expect at a Case Conference”. Recent discussions with clients suggested to me that it might be helpful to follow Jodi’s lead to provide a series of blogs explaining in some detail what parties should expect at the different type of family court dates. In this blog I will focus on Motions.
A motion is a court appearance where one side asks the court to make a temporary order on a substantive issue, such as an order for temporary spousal support. Once a temporary order is granted, it is meant to last between the date the order is made and some future court date, such as a Trial, another Motion date, or ideally a final settlement.
A number of court documents must be prepared and served in advance of a motion. The documents usually consist of a Notice of Motion, an Affidavit setting out the facts supporting the Motion and Exhibits (documents referred to in the Affidavit). In addition, a Factum or Brief of Authorities may need to be filed. A Factum is a written statement that summarizes the facts and law being relied upon by a party in support of his or her position before the court. A Brief of Authorities is an indexed booklet of the most relevant legislation and case law in support of a party’s position.
The party bringing the motion is called the “Moving Party”. The party defending the motion is called the “Responding Party”. However, a Responding Party may bring a cross-motion against the Moving Party, returnable at the same motion, requesting the court to make orders they seek.
In Ontario Rule 4 of the Family Law Rules prevents motions from being served or heard before a case conference dealing with the substantive issue to be address by the motion, except in rare circumstances where the court is of the opinion that there is a situation of urgency or hardship. It should be pointed out that the Court’s definition of urgency or hardship is often quite different from a party’s personal definition. There are many Family Law matters that will feel very urgent to the family members involved, but do not in fact meet the legal threshold to be considered urgent. Recently Motions Judges have been requiring parties to contact the Trial Coordinator to determine if there are any conference dates available right-away before attempting to bring a motion based on urgency or hardship prior to a conference date.
The reason for the rule requiring a conference before a motion is that in the Family Law context motions often exacerbate animosity between parties. The goals for a motion differ from those for a conference. Conferences are structured to increase the likelihood of the parties settling matters between themselves, with some guidance from the court. For many reasons this is the preferred result. Whereas, the goal of a motion is to have a judge review the evidence and law, and for him or her to make the decision.
Some family courts in Ontario have open motion lists and others schedule their motion dates. An open motion list means that a party need only serve and file their materials in accordance with the Family Law Rules to have their matter heard on a motion date chosen on the Notice of Motion. Whereas if a court schedules their motions the trial coordinator will need to be contacted before choosing the motion date. There are pros and cons to both systems.
Regardless of whether the motion date is on an open list or a scheduled list it is likely that several parties’ matters will be scheduled for the same date and the same time. Often judges will ‘vet the list’ at the start of the day to determine the priority of the matters to be heard. This simply means that all parties on the motion list that day are asked to attend in the courtroom and the judge will ask for basic details regarding each matter and for time estimates for the motion. The judge will then determine what order to hear the motions. It is important to be punctual on a motions days to ensure your matter does not lose priority, or worse end up struck from the list that day.
While punctuality is required, be ready for a long day. Depending on the number of other matters on the list that day, the priority of your matter, and other factors, it is possible that you will be at the courthouse the entire day waiting to be heard. Bring a book and some snacks with you for the day (note you cannot eat, drink, chew gum, etc. in the courtroom itself). It is unfortunately a ‘hurry up and wait’ system at many Ontario courthouses.
The issue of ‘costs’ is often more relevant at a motion than at a conference. At the end of a motion, after the judge has made his or her decision, he or she has the power to order one party to pay all or part of the legal costs of the other party. Generally, the losing party will have to pay costs to the successful party. The quantum of costs ordered will be determined by the judge’s assessment of the reasonableness of each party’s position or behaviour and whether or not there had been offers to settle.
If a self-represented party is considering whether to bring a motion he or she should get a copy of the Ontario Family Law Rules and follow the Rules. They can be found on-line. Motion Judges generally follow the Rules more strictly than Case Conference Judges. Also, there are more severe consequences for not following the Rules at a motion, as Motion Judges are more likely to make cost awards than Conference Judges.
Motions are expensive because of the preparation required and risks involved. Motions really should only be brought when necessary to move a matter forward or provide required relief to which the other party will not agree. However, if you do need to bring a motion, on the day of your motion, after all the preparation is complete, and you are sitting in a courtroom hallway waiting to be heard – try to relax. It will not be helpful to you to be too anxious or angry, or a myriad of other difficult emotions. If possible have a support person with you or available by phone, not to interfere with your legal instructions, but to simply provide emotional support. By this time you have decided that the decision in your matter is best made by a Family Court Judge who will listen to both sides and apply the law. While your situation may feel uniquely horrible, complicated, or maybe even ridiculous, know the Judge is very likely to have seen cases at least somewhat like yours before. If you have children, know that Family Court Judges are always considering their best interests.