Demystifying the Family Law Motion

In most circumstances a negotiated settlement is the most cost-effective and time efficient option for resolving a family law dispute, whether the settlement is arrived at via mediation, direct negotiations amongst counsel or other forms of non-Court resolution.

Unfortunately, negotiated settlement is not always possible for every family law file.

Circumstances where commencing family court litigation may be a more appropriate approach include, but aren’t limited to:

• where one party is withholding critical financial support to the other or their child/children;
• where there is an immediate threat to the safety of a party or child;
• where a spouse is disposing of assets or evidence;
• where a party is planning to remove a child from the jurisdiction/country, never to return;
• where a party is withholding pertinent financial information;
• where a party will not permit reasonable (or any) parenting time, or
• where a party refuses to reasonably participate in settlement discussions.

If it is necessary to commence litigation, it can take months, or even years, for a family law file to make its way from the commencement of the application to the trial stage. Important or pressing decisions about parenting, child support, spousal support, and property, must be made along the way. One of the most important tools a family law litigant has to address these immediate concerns, is the family law motion.

Motions and Trials – Similarities and Differences

Most people are familiar with what a trial looks like, as it is the most common court procedure portrayed in movies and television. The witness gets on the stand, gives their evidence to their lawyer, and then the witness is subjected to a rigorous cross-examination by the opposing lawyer. Arguments from each family law lawyer follow. The trial judge will then render a decision as to the issues in dispute.

Like a trial, the motions judge will decide the issue, after hearing arguments from the parties’ family law lawyers and applying the law to the evidence. However, a motion also differs from a trial in many important ways.

• Temporary Orders – The first way that family law motions are different from a trial  is that, in most instances, a judge only has authority to make a temporary order on a motion, meaning that the issue in question remains subject to a final order by a trial judge, or, more frequently, will be resolved by settlement. However, just because the order is temporary does not mean it is not important. Temporary orders for parenting time and decision-making, for example, can influence the final outcome of a parenting dispute as the temporary order establishes a status quo for post-separation parenting. Likewise, temporary orders for support are important as they establish the quantum of support the recipient will be receiving/the payor will be paying, pending final order by trial or settlement, which can be many months, or even years, after the temporary order is made.
• Introducing Evidence – The other important difference between a motion and a trial is the way that evidence is provided to the court. The most common way that evidence is provided on a motion is via affidavit, which is sworn evidence given in written format. There are page limits and limits to the number of exhibits that can be attached to an affidavit used on a motion. These requirements are governed by each region’s practice directions. Generally, there is no oral evidence.
• No Cross Examination – Unlike a trial, there is no opportunity for cross-examination in relation to the evidence presented by way of the sworn statement (affidavit). A family judge must decide a motion based on competing affidavit evidence of the spouses or third parties, which is challenging when there are issues of credibility.
• Time Limits – The final important difference between motions and trials I will discuss is time limits. Depending on the rules of a particular jurisdiction, motions are generally limited to one hour or less and are limited in scope to one or two issues. It is possible to schedule longer motions but some regions only run “long motions” during trial sittings, so obtaining a long motions date can take time. Conversely, trials can last anywhere from a couple of days to several weeks depending on the type, complexity, and number of issues to be determined.

Scheduling a Motion – Patience Required

Urgency – In Ontario, motions are governed by Rule 14 of the Family Law Rules, which prohibits Motions being heard before a case conference, except in cases of the utmost urgency. A conference is a stage in the Court process in which the parties seek to narrow and resolve issues with the help of a judge, before proceeding to an argued stage in the process. Pursuant to the leading case law on “urgency” for the purpose of a motion, urgency can include, but is not limited to, situations involving abduction, threats of harm, and dire financial circumstances.Most family law motions will not reach the high threshold of urgency and must first be conferenced at a case conference, before proceeding to a motion. Your family law lawyer will guide you as to whether, in your case, a motion might proceed successfully on an urgent basis.

Conferencing First – As noted above, save in rare circumstances, a case conference is a mandatory step that every family law case in Ontario must proceed through. In most family law cases, the case conference is the first time a family law judge looks at the case and provides feedback. While the case conference judge can make procedural orders, orders for disclosure, and give directions and recommendations to the spouses, generally speaking, no substantive orders, such as those for parenting time or payment of spousal support, can be made at the case conference, unless both spouses consent. Fortunately, many parties can resolve at least some of their differences with the guidance of a judge and their family law lawyers at the case conference stage. This is often more cost-effective than proceeding to a motion. If parties cannot come to an agreement after receiving judicial feedback and support from their family law lawyers at the case conference stage, either may bring a motion post-conference, so long as they comply with Rule 14 of the Family Law Rules, and the regional practice directions for their area.

How Soon Will My Motion Be Heard? – The timelines between a family law application being commenced and a matter proceeding to a case conference, as well as the timeline between the case conference and the availability of a family law motions date, varies from region to region across Ontario. In the current circumstances, generally speaking, a family law litigant would be looking at a minimum of 3 to 8 months from the time an application is commenced to the time a family law motion can be argued.

Costs

Motions are a major step in a family law proceeding and can generate significant legal costs for each party. The Court may, in particular circumstances, order that one party pay some (or infrequently all) of the legal costs of the other party. Rule 24 of the Family Law Rules governs cost consequences for family law litigation in Ontario. Costs are determined at each step of the family law proceeding and tied to the success of each party, and, less frequently, the conduct of each party. A spouse who is successful on a motion, may be entitled to an order that the other spouse pay some or all their costs for the motion. As cost consequences of an unsuccessful family law motion can be significant, each party must obtain sound advice from their family law lawyer as to the strength of their position on the motion, and their conduct in managing the case.

Closing Thoughts

Temporary orders made by a motions judge can easily set the tone for the entire court proceeding and result in significant cost consequences for one or both spouses. If you think a motion may be necessary in your family law case, or if you have been served with a motion that you must defend, it is important that you obtain advice from a skilled family law lawyer about this important step in your family law case. Contact Bair Family Law today at (705) 720-1090 for a consultation.