Under Rule 14(4) of the Family Law Rules, the parties must complete a Case Conference addressing substantive issues first. Only after the case conference, they can schedule a motion. However, a judge may hear an urgent motion as an exception under Rule 14(4.2). You need to show that there is urgency, hardship, or another compelling reason in the interest of justice.
Family Law Rules does not define “urgency” or “hardship”. Nonetheless, a review of the case law under the Family Law Rules indicates that the courts take a strict view of what constitutes “urgency” or “hardship.”
Rosen v. Rosen – The Leading Case
The leading case on the determination of whether or not to a motion is urgent is Rosen v. Rosen. Wildman, J. held that, in approaching a request to hear an urgent motion prior to a Case Conference, the court should consider the following factors:
- The availability of case conference dates. The trial coordinator should be made aware of any particularly pressing issues, because there may be earlier case conference dates that could be made available in Order to avoid a motion.
- Whether the parties have engaged in settlement discussions to try to obtain a short-term agreement on pressing matters prior to the case conference. While the court will not hear the content of offers exchanged, it is important to know whether there has been some attempt to negotiate and if not, why not.
You will have difficulties establishing urgency absent canvassing Case Conference dates. Also, you will struggle to establish urgency without showing attempts to resolve issues until the next available Case Conference date.
Conclusion
As such, one must be careful if they want to allege urgency in the circumstances to speed up the process. Judges are mindful of those attempts. They will not allow a motion to proceed prior to a case conference absent true urgency.
Having said the above, things have changed since the commencement of the pandemic. Courts are now backlogged. It results in months of waiting see a judge at a regular case conference. Some regions have developed additional tools to the parties to speed up their cases. Courts recognize that current delays within the justice system affect one of the fundamental rights in Canada, which is access to justice.
Therefore, it is imperative to have a lawyer who is appraised as to the local practices and procedures to ensure you can see a judge as soon as possible.
Our divorce lawyers at Progressive Legal Solutions will help with urgent motions and more.