Rule 14(12) of the Family Law Rules allows a motion to be made without notice in enumerated circumstances:
14.(12) A motion may be made without notice if,
- (a) the nature or circumstances of the motion make notice unnecessary or not reasonably possible;
- (b) there is an immediate danger of a child’s removal from Ontario, and the delay involved in serving a notice of motion would probably have serious consequences;
- (c) there is an immediate danger to the health or safety of a child or of the party making the motion, and the delay involved in serving a notice of motion would probably have serious consequences; or
- (d) service of a notice of motion would probably have serious consequences
Ayala v. Giron – Basics of Ex-Parte Motions
In Ayala v. Giron, the court reviewed the jurisprudence on ex-parte Orders. It summarized some of the general principles applicable to such Orders in paragraphs 89-95 as follows:
- Courts should issue ex-parte custody Orders in family law cases only in exceptional circumstances. The reason is that such Orders can give the successful applicant a “leg up” in the proceedings. Usually the “leg-up” comes from establishing a premature status quo in his or her favour;
- The moving party in the ex-parte motion is responsible for providing full and frank disclosure of all material facts. The lawyer representing the moving party shares this responsibility. The lawyer should ensure that the situation warrants an application for an ex-parte Order;
- A lawyer preparing materials for an ex-parte Order must ensure that the circumstances justify the bringing of an ex-parte motion;
- The applicant’s failure to disclose a salient fact is a sufficient ground for setting aside an ex-parte Order;
- Where there is any doubt as to whether an ex-parte motion is justified, it is better to serve the material on short notice. It will ensure that the parties are present on the return of the motion. It will allow the court to make an appropriate Order pending any adjournment.
The Case of M. v. J.M.
The Court of Appeal for Ontario is unequivocal in its support for a very stringent application of Rule 14(12). In its relatively recent decision of M. v. J.M., (2016 ONCA 644), the Court of Appeal states:
- [26] Rule 14(12)(c) of the Family Law Rules, O. Reg. 114/99,allows a motion to be brought without notice if “there is an immediate danger to the health or safety of a child or of the party making the motion, and the delay involved in serving a notice of motion would probably have serious consequences.” If an ex parte Order is made, under rule 14(14) that Order must contain a requirement that the matter come back to court, if possible before the same judge, within 14 days or on a date chosen by the court. And under rule 14(15), an Order made without notice must be served immediately on all parties affected, together with all documents used on the motion, unless the court Orders otherwise.
M. v. J.M. – Other Statements of Court
- [27] These rules are consistent with the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, for other civil matters. An ex parte Order is intended to be used only in exigent situations where the delay required to serve the motion would probably have serious consequences, or where the giving of notice by the service itself would probably have serious consequences. A judge hearing an ex parte motion who is not satisfied of the probability of those consequences will decide that the motion cannot proceed ex parte and Order that notice be given.
- [28] Where a motion is brought without notice, the person bringing the motion must make full and fair disclosure of all material facts (rule 39(6) of the Rules of Civil Procedure), including facts that may not be helpful to that party’s position. An ex parte Order that is obtained without full and fair disclosure, even if the lack of full disclosure was unintended, is subject to being set aside. See for example, Rinaldi v. Rinaldi, 2013 ONSC 7368.
- [29] Notice and the opportunity to be heard are basic tenets of our justice system. Ex parte Orders are therefore made only in very limited circumstances. The requirement for full and frank disclosure is essential to allow a court to fairly make a temporary Order that will affect the rights of another person in an emergency situation where the court has not heard both sides of the story.
- [30] That requirement is well-known to lawyers. It applies equally to self-represented parties.
Exceptional Circumstances
Strict compliance with the Family Law Rules is imperative to avoid the appearance of unfair advantage to one party. Courts discourage ex-parte motions. This is apparent from the following excerpt taken from Ansah v. Ansah. There, the court set out the principles courts apply when reviewing an ex-parte request:
- “An ex-parte injunction in matrimonial proceedings should be granted only in an emergency where the interests of justice of the protection of the applicant or a child clearly demanded the court’s intervention and should therefore be granted extremely rarely, particularly as an urgent application for an injunction could be heard inter partes on two days’ notice being given to the other side. […]”.
Many of the principles that the court enunciated in this passage, are reflected in Rules 14(12) to (15) of the Family Law Rules.
Full And Frank Disclosure
A person who seeks ex-parte relief has an obligation to make full and frank disclosure of all material facts. Even where some of those facts may not be helpful to the applicant’s position, they must disclose them. Therefore, the court will set aside an Order if the requesting party had omitted the information.
The Case of Tomanec v. Tomanec
In Tomanec v. Tomanec, 1990 CarswellOnt 311, Vogelsang Prov. J. made the following comments about the duty of full disclosure on a motion without notice (at 377):
- I am compelled to make some general observations about the increase in attempts to use ex-parte procedure in interim custody motions. Unfortunately, some Orders are being granted on the basis of material which is flimsy and even deceptive. […] In addition, motions for relief without notice to the opposing party may seem especially attractive in interim custody matters because of the tactical benefit which accrues to a successful moving party. That being said, strict compliance with the Rules is of the essence because of the spectre of potential unfair advantage. It is improper not to set out clearly before a motions judge that, as here, the ordinary residence of children is not where the interim custody Order is being sought.
The contents of Rule 14(12) create a presumption that, absent very limited prescribed circumstances, all motions are to be made on notice to the affected parties: Somers v. Feldman-Kiss.
An ex-parte motion is an extraordinary step in a proceeding. In the absence of a responding party, the court strives to review what it presumes to be a reasonable, balanced summary of all relevant facts that could affect the motion’s outcome. If the court is deprived of the opportunity to assess and appreciate all known material facts due to a moving party’s failure to provide full and fair disclosure, that step in the process is “simply tainted” and the ex-parte Order may be set aside.
Notice Unnecessary or Not Reasonably Possible and Notice Would have Serious Consequences The Case of Somers v. Feldman-Kiss
Evidence showing that notice is unnecessary or not reasonably possible must be provided.
Somers v. Feldman-Kiss – Background
In Somers v. Feldman-Kiss, the parties executed Minutes of Settlement in August 2017. They resolved all issues between them, including spousal support and equalization. These Minutes were incorporated into a consent court Order. In September 2017, the wife became self-represented in the proceeding. She retained a lawyer to prepare an ex-parte motion seeking an Order : (a) declaring her to be a special party; and (b) appointing a proposed litigation guardian. The presiding judge appointed the litigation guardian. He refused the request to seal the supporting medical opinions and the litigation guardian’s supporting affidavit from the public record. The Order and supporting motion materials, together with a new motion seeking an Order declaring the Minutes of Settlement null and void, were then served on the husband, who brought a motion seeking to set aside the ex-parte Order.
The court granted the husband’s motion. None of the grounds enumerated under r.(12) were present here (at para. 29). There was no immediate danger to any child or to the wife, which would render service of the notice of motion to have serious consequences. The circumstances in which the wife and the litigation guardian found themselves did not make notice unnecessary or not reasonably possible. There was no urgency whatsoever to the motion. The wife did not have to vacate the matrimonial home until the end of November. She had plenty of time for the husband to be provided with notice. When asked why the motion was brought on an ex-parte basis, the wife’s lawyer advised that “they needed the Order sought.”
Somers v. Feldman-Kiss – Takeaway
In the court’s view, “this was exactly the type of situation which Rule 14(12) is designed to guard against. Namely, one party taking unfair advantage of the process by proceeding without notice to gain the upper hand on a party not present” (at para. 30). On that basis alone, the ex-parte Order was to be set aside. The court went on to address the faulty and incomplete evidence relied upon at the ex-parte motion. The court also noted that requesting a sealing of the motion materials was “a very strange request, and certainly inconsistent with the mandatory full and fair disclosure requirement on ex-parte motions” (at para. 33).
Case of H.(M.L.) v. A.(W.G.)
In H.(M.L.) v. A.(W.G.), the court dismissed a request. An Applicant made a request to dispense with adoption notice to the biological parents, who resided in Lebanon. There was no evidence of difficulty with service and no evidence that the parents had moved. All the law required was that the parents be given notice.
Risk of Abduction The Case of Singh v. Singh, [2000] O.J. No. 4202
Subrule 14(12)(b) of the Family Law Rules addresses circumstances where there is an immediate risk of child abduction. The moving party must show that the delay involved in serving a notice of motion would have serious consequences. Subrules 14(12)(b) and (c) require circumstances of urgency.
In Singh v. Singh, a father had obtained a temporary custody Order. He also obtained a temporary non-removal Order and a temporary restraining Order without notice, by claiming the mother would remove the child from Canada. In setting aside the custody Order, Wolder J. held that “there was no urgency” as required by subrule 14(12). The respondent was available at all times and, therefore, the motion could have been brought on short notice instead.
Danger to Child or the Moving Party The Case of A. Z. v C. Z
Subrule 14(12)(c) of the Family Law Rules deals with an immediate risk to the health and safety of the child or the applicant. Similar to Rule 14(12)(b), it requires that the applicant must show that the delay involved in serving a notice of motion would probably have serious consequences. This addresses circumstances such as harassment, domestic violence, and child abuse.
A. Z. v C. Z – Discsussion
A. Z. v C. Z., 2015 ONSC 3540 (CanLII), the father removed the child from Cambridge, Ontario, ostensibly to visit his ailing mother in Kawartha Lakes. He then refused to return the child on the basis that the child was fearful of the mother. The mother obtained an ex-parte Order. The order declared that Waterloo was the proper jurisdiction in which to determine custody and access issues. It granted her sole custody with access to father at her discretion. The Order also included a police enforcement clause. When the father refused to comply with the Order, the child was apprehended by police and returned to Cambridge.
Conclusion
All in all, sometime parties want to file a motion without notice. Sometimes they want to do it for the purposes of gaining a litigation advantage. However, a party who has filed the motion may be penalized if they filed such motion for invalid reasons. It is crucial to have a proper legal advice before filing an ex-parte motion.
Family lawyers at Progressive Legal Solutions will help!
