What Is a Motion?

Understanding Motions in Ontario Family Law

This blog will help answer some questions clients may have when meeting with one of our family law lawyers after scheduling a Motion or receiving motion materials from their former spouse.  The questions answered in this blog include:

1. What is a Motion?
2. What happens at a Motion?
3. How do you schedule a Motion?
4. What forms do you need to prepare for a Motion?
5. What is the due date for your Motion materials?
6. What is a Confirmation of Motion, and when is it due?
7. What do you write in a Notice of Motion?
8. What do you write in an Affidavit?

What Is a Motion in Family Court? What Happens at a Motion?

A Motion in a family law matter is an event in which a judge makes a temporary decision on a procedural or substantive issue.  In Ontario, the process for procedural motions differs from motions that address substantive issues.

Procedural Motions

The majority of procedural issues (consents, simplified disclosure requests, adding parties, extensions of time, etc.) may be addressed through a 14B Motion (sometimes referred to as a “basket” motion).  This, however, varies based on the region in which your matter is being heard.  For example, at the time of the drafting of this article, contested procedural motions cannot be heard by way of 14B Motion in Brampton. 

Substantive Motion

Most often, motions refer to a court appearance in which a judge has the jurisdiction/authority to make a temporary Order on a substantive issue, such as, but not limited to, decision-making responsibility, parenting schedule, child support, or spousal support.

The Difference Between “Regular” (or “Short”) Motions and a Long Motion

If the hearing of a Motion for temporary relief will take an hour or more, the parties are required to schedule a “long motion”.  Please note that the timelines for a long motion differ significantly from those for a regular motion, including service and filing deadlines.  For this reason, long motions are usually scheduled months in advance of the date of the hearing. 

When Are Motions Heard?

Pursuant to the Family Law Rules, no Motion may be heard before a Case Conference dealing with the substantive issues in the case has been completed.   In fact, the Rule 14(4) provides that no notice of motion or supporting evidence may be served prior to a Conference having being completed.

There are, however, exceptions to this Rule with the exceptions set out in Rule 14(4.2) and Rule 14(6).

Urgency, Hardship or “In the Interest of Justice”:

Rule 14(4.2) provides that a Motion may be heard prior to a Conference dealing with the substantive issues in the case if there is a situation of urgency or hardship or if a Case Conference is not required for some other reason in the interest of justice.

Other Exceptions

Rule 14(6) of the Family Law Rules sets out the other exceptions to the Rule that a Conference must be completed before a Motion.  These exceptions include:

1. to change a temporary order under subrule 25 (19) (fraud, mistake, lack of notice);
2. for a contempt order under rule 31 or an order striking out a document under subrule (22);
3. for summary judgment under rule 16;
4. made in accordance with subrule 1.3 (6);
5. to require the Director of the Family Responsibility Office to refrain from suspending a licence;
6. to limit or stay a support order, the enforcement of arrears under a support order, or an alternative payment order under the Family Responsibility and Support Arrears Enforcement Act, 1996;
7. in a child protection case;
8. made without notice, made on consent, that is unopposed or that is limited to procedural, uncomplicated or unopposed matters (Form 14B);
9. made in an appeal;
10. for an oral hearing under subrule 32.1 (10), 37 (8) or 37.1 (8); or
11. to set aside the registration of an interjurisdictional support order made outside Canada.

How To Set a Motion Date in Family Court

The date for a Motion can be scheduled at a Conference or by obtaining dates from the court.  When scheduling a date for a Motion it is essential to consider whether a Conference has been held and the deadlines for materials.  

What Forms Must Be Prepared for a Motion?

The materials required for a Motion depend on the issues being addressed at the Motion and the Practice Direction for the region in which your matter is being heard.  At a minimum, the moving party will be required to complete:

1. Notice of Motion (Form 14)
2. Affidavit (Form 14A); and
3. Draft Order (Form 25).

The Responding Party must, at a minimum, serve and file the following materials:

1. Affidavit (Form 14A); and
2. Draft Order.

While a Draft Order may not be required, serving and filing a Draft Order provides a Judge with your position in clear terms. 

Depending on the length of the Motion and the issues being addressed, you may also be required to serve and file:

1. a sworn Financial Statement (Form 13 or 13.1); and
2. a Factum.

Finally, following the service and filing of Motion materials, counsel are required to discuss the issues in an attempt to settle or narrow the issues being addressed at the Motion.  Following such discussion and by no later than 2:00 p.m., three business days before the Motion, parties are required to serve and send to the Court a Confirmation of Motion (Form 14F).  Please note that this deadline applies to motions of 59 minutes or less, as different deadlines apply to long motions.

What Is the Due Date for a Motion Materials?

The service and filing deadlines for Motion materials vary depending on whether you are the party bringing the motion (i.e. the “moving” party) or the responding party.  The deadlines also vary depending on whether the motion is scheduled for a regular motion date (i.e. motions of 59 minutes or less) or a long motion.  In addition, there may be an Agreement or Court Order setting out specific deadlines for the service and filing of materials.  The Family Law Rules provide that for short/regular motions (i.e. motions of 59 minutes or less), the deadlines for materials are as follows:

1. The party who scheduled the motion must serve and file their materials no later than six (6) business days prior to the Motion in accordance with the Family Law Rules;
2. The other party must serve and file their materials no later than four (4) business days prior to the Motion pursuant to the Family Law Rules; and
3. The Confirmation of Motion must be served and then sent to the trial coordinator by no later than 2:00 p.m. three (3) business days prior to the Conference.

Please note that the deadlines above refer to when the service must be effected.  For example, if serving materials by email, a party must serve the materials before 4:00 p.m. for service to count for that specific day.

What Is a Confirmation of Motion and When Is It Due?

A Confirmation of Conference (Form 14C) provides the Court with insight into the Motion.  It details:

1. The scheduled date and time of the motion;
2. Whether a case conference has been held on the substantive issues in the case;
3. Whether the motion is going ahead, has been resolved by way of terms on consent, is being adjourned on consent, or is going ahead for a contested adjournment;
4. The specific orders being sought at the motion;
5. The material the judge will be referred to during the motion;
6. Whether the parties have discussed the issue of costs; and
7. The time estimates for each party’s oral submissions.

As noted above, the Confirmation of Motion must be served and then sent to the trial coordinator by no later than 2:00 p.m. three (3) business days prior to the Conference.

What Do You Write in Your Motion Materials in Family Court?

When preparing motion materials it is important that you understand the law with respect to motions and the law on the substantive issues being addressed at the Motion. Without such knowledge, a party may be unable to adequately prepare their motion materials. 

In sharp contrast to a trial where a party is able to provide viva voce evidence (i.e. oral evidence/testimony), a motion judge must rely solely on the evidence in the motion materials of each party.  Rule 14(20) provides the following:

14(20) The following restrictions apply to evidence for use on a motion, unless the court orders otherwise:

1. The party making the motion shall serve all the evidence in support of the motion with the notice of motion.
2. The party responding to the motion shall then serve all the evidence in response.
3. The party making the motion may then serve evidence replying to any new matters raised by the evidence served by the party responding to the motion.
4. No other evidence may be used.

To that end, each party must understand the law when preparing their motion materials to ensure that their respective Affidavits include all necessary evidence for a Court to be in a position to make an Order in accordance with the relief sought.

FREQUENTLY ASKED QUESTIONS

Are All Motions Heard “On Notice”?

The majority of motions are heard on notice to the other party.  That is, in the significant majority of cases, motions are heard after the opposing party has been properly served with motion materials (i.e. Notice of Motion and Affidavit) and had the opportunity to prepare, serve and file responding materials. 

However, in extremely limited circumstances, a Motion may be brought without notice.  Rule 14(12) sets out the circumstances in which a Motion may be heard brought without notice.  It provides:

14(12) A motion may be made without notice if,

1. the nature or circumstances of the motion make notice unnecessary or not reasonably possible;
2. 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;
3. 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
4. service of a notice of motion would probably have serious consequences. 

Speak With a Family Lawyer Before Bringing or Responding to a Motion

If a Motion has been scheduled in your family law matter, contact us to schedule a consultation with one of our lawyers to:

1. understand the issues that you or your former spouse/partner are asking the Court to decide;
2. be aware of the documents that you must serve and file for a Motion;
3. understand what happens at a Motion; and
4. understand the steps after the completion of a Motion.