What is a Motion in Divorce Proceedings

Family court processes and decisions take time and often families will need a temporary order on certain matters that should not wait. For example, a temporary order on where your children should live until a final decision is made.

Family motions provide an answer until a final decision is made by a judge. A motion can be filed by any party in a family proceeding. The person filing a motion is referred to as the moving party and the other party, the responding party.

There are two types of family motions:

1. A procedural, uncomplicated, or unopposed motion; or

· Asking the court for permission to submit a file after the deadline

· Requests you and your former spouse agree on

2. A motion for a temporary order

· An order for temporary child or spousal support

· An order on how much time each parent will spend with the child

Knowing when and how to file a motion along with what to expect is essential in a divorce proceeding.

When can I bring a Motion?

Unless the matter is urgent, you cannot bring a motion until after an initial case conference where substantive issues have been discussed. Examples of urgent motions involve a child’s safety at immediate risk or where an order is necessary to provide basic living conditions to a child. If a judge finds that there is no urgency or hardship, they will refuse to hear your motion and may order you to pay costs.

What are the different kinds of Motion?

A motion with notice is the most common kind of motion. This means that you will serve your materials to your former partner who will have the opportunity to respond before your motion is heard before a judge.

In limited circumstances, a motion without notice (ex-parte) to your ex-partner can be requested. Motions without notice are limited to circumstances where,

· Notice is either unnecessary or not reasonably possible (e.g. where you have exhausted all efforts but cannot locate your ex-partner);

· There is an immediate danger of your child’s removal from Ontario and the delay in serving a notice of motion, or alerting the other party to your motion, would probably have serious consequences; or

· Serving a notice of motion would likely have serious consequences

The court will decide whether or not to hear your motion without notice based on your materials and an additional affidavit explaining why you could not provide notice to your ex-partner. This affidavit is required.

How do I file a Motion?

You must schedule a date for your motion to be heard at the courthouse. The moving party must serve all motion materials on their ex-partner (unless ex-parte) and then file these materials with the court.

To request a motion for a temporary order, the moving party must file a number of documents including Form 14 – Notice of Motion, Form 14A – Affidavit, and Form 13 – Financial Statement, to name a few. The forms to request a motion for a procedural, uncomplicated or unopposed matter require different forms. A motion without notice requires additional forms including Form 14D – Order made on motion without notice. For assistance with submitting the appropriate documents for each type of motion, call our office at 905-366-0202.

Once the moving party has served and filed their motion materials, the responding party must serve their responding materials within a specific time frame. Both parties will then need to confirm the motion with the court by filing a Form 14C – Confirmation of Motion.

What to expect at the hearing of your Motion?

If you are asking the court to make an order that you and your ex-partner agree on, this is referred to as a consent motion. Judges will often attend to consent motions or unopposed motions first.

Regular motions typically take one hour or less. A judge will first hear from the submissions of the mover than the responding party. The judge will either make a decision immediately or reserve their decision for a later time. If a judge needs more time to review the evidence, the judge is likely to reserve their decision and inform the parties at a later time.

We understand that the forms, process and minimum timelines can be difficult to keep track of. Whether you are a moving party or the responding party, our Family Lawyers are here to help you. Do not hesitate to call our office to book a free consultation or contact us here.