Often, one parent wants to move an urgent motion before a case conference, usually on the issue of custody and access. Sometimes, it could be other areas as well.
Recently, in the case of L.A.S. v. G.F., 2019 ONCJ, 308, the Honorable Justice Zisman had the opportunity to go into this issue in detail. It is such an interesting case that I am writing about it here. It lays down principles of when a motion may be brought to Court on an urgent basis. In this case, the mother had initially brought the motion on an ex-parte basis (i.e., without issuing notice to the opposing party).
An ex-parte motion is of such emergency that the Court will only go by one party’s affidavit prior to issuing a decision.
The Judge noted:
I find that this motion should never have been commenced as an urgent motion and certainly not without notice to the father.
[27] The leading case with respect to urgency and the interpretation of subrule 14 (4.2) of the Family Law Rules (FLR) is the case of Rosen v Rosen[1]that has been cited and followed by many courts. Justice Ramona A. Wildman confirmed that an urgent motion within a court proceeding contemplated issues such as abduction, threats of harm or dire financial circumstances.
[28] Justice Wildman also set out the procedure to be followed in requesting an urgent motion prior to a case conference as follows:
1. An inquiry should be made when a case conference date is available to deal with the matter and
2. If there is a particularly pressing issue, the trial co-ordinator should be made aware of this, as sometimes earlier case conference dates are available.
[29] I would also add:
1. A motion under subrule 14(10) [procedural, uncomplicated or unopposed matters] of the FLR, by a Form 14B, can be used to advise the court of the pressing need for an early case conference date and
2. Prior to bringing a motion, there should be some settlement discussion to try to obtain a resolution of pressing matters prior to the case conference
[30] In this court in particular, counsel should be aware that early case conference dates can be easily obtained by submitting a form 14B. That was not even attempted in this matter.
[31] The entire principle of case management is to avoid this type of escalating affidavit warfare that has intensified the existing conflict and mistrust between the parents in this case.
[32] I would also point out that if this case had been commenced by the proper process, the court would have actively case managed the proceedings at a very early stage.
[33] Sub-rule 2(5) FLR describes the court’s duty to promote the primary objective by active management of cases. This includes:
a. at an early stage, identifying the issues, and separating and disposing of those that do not need full investigation and trial;
b. encouraging and facilitating use of alternatives to the court process;
c. helping the parties to settle all or part of the case;
d. setting timetables or otherwise controlling the progress of the case;
e. considering whether the likely benefits of taking a step justify the cost;
f. dealing with as many aspects of the case as possible on the same occasion; and
g. if appropriate, dealing with the case without parties and their lawyers needing to come to court, on the basis of written documents or by holding a telephone or video conference.
[34] If an early case conference had been held, the court could have suggested a reasonable parenting plan (without the parties filing extensive affidavits), directed the parents to attend the Parent Information Program, recommended mediation to help the parties craft a parenting plan and suggested services to assist the parents in learning better ways to communicate with each other and to avoid ongoing conflict.
[35] In considering how to now deal with to this motion, the court could have simply dismissed the motion as not meeting the criteria of urgency. However, to do so would result in an inordinate waste of the parties’ financial resources and a waste of court resources.
Discussion and decision by Her Honor:
Discussion
[79] The court is required to make any decision with respect to custody and access in accordance with the best interests of a child.
[80] The criteria for a determination that involves the best interests of a child is set out in Section 24 (2) of the Children's Law Reform Act.
[81] I have considered and applied those provisions in this decision.
[82] As this is a temporary motion the court is also required to consider the principles with respect to temporary orders.
[83] A temporary order is meant to provide a reasonably acceptable solution on an expeditious basis for a problem that will be later fully canvassed at subsequent conferences and if not, the issues will be resolved at a trial.[2]
[84] The status quo should be maintained until trial unless there is material evidence that the child’s best interests requires an immediate change.[3]
[85] Children should have maximum contact with both parents if it is consistent with the child’s best interests.[4]
[86] I have also considered that at this stage of the proceedings temporary orders are based on limited evidence without the benefit of cross-examinations and such orders are meant to come to a reasonable acceptable solution to a difficult problem pending trial.
[87] I have also considered that a temporary order can have and frequently does have long term implications.
[88] In this case, there is some dispute about which parent was the primary parent. At this stage, although it appears that the mother had the child in her care more than the father, the father was significantly involved in also caring for the child.
[89] Counsel for the mother emphasizes the serious criminal charges the father is facing. However, the father is presumed to be innocent until proven guilty. I also note the timing of those charges was only after the mother commenced these proceedings and after the court had ordered shared parenting.
[90] The police had been involved with the parents on at least 4 prior occasions and the mother never mentioned any such concerns. However, I am aware and have considered that many victims of domestic violence do not report abuse while residing with their partner.
[91] In this case, the alleged serious assault and forcible confinement and uttering death threats are alleged to have occurred from July 1 to 31, 2017. The mother deposed that she separated from the father in April or May 2018 and does not report any abuse.
[92] Further, the mother alleged that the maternal grandmother was aware of the incident and tried to intervene. However, the maternal grandmother and her 14 year old daughter lived with the father until September 2017 and maternal grandmother then left her daughter to live there until June 2018. There is no explanation to why the maternal grandmother would have continued to live in the father’s home, left her 14 year old daughter there or would not have reported or encouraged the mother to report such abuse.
[93] The mother’s explanation that the police told her she could not report domestic violence that occurred in the past was disputed in the police report.
[94] I have concerns that the mother has exaggerated or falsified her concerns about the father’s criminality. If as she alleges the father is a drug dealer and belongs to a gang, she then does not explain why she continued to live with him, continued to return with their child to spend significant amounts of time with him and moved in full-time in January 2019.
[95] I have concerns about the mother’s lack of stability as outlined in her own history of moving in and out of her grandparents’ home.
[96] I have concerns about the mother’s version of the events of February 13th and her irrational and erratic behaviour that was not focused on the best interests of her daughter.
[97] Since the shared parenting schedule has been in place, neither parent has alleged any issues regarding the care the other parent is providing for the child.
[98] Although the records of the Children's Aid Society of Toronto have not yet been received, there is no evidence that the society has expressed any concerns about the care either parent is providing for their daughter.
[99] I find that at this time, the best interests of the child are to continue in a shared parenting regime.
Lessons from this court decision:
An analysis of the above case tells us that it is very important not to get carried away in seeking an urgent motion relief when it may not actually be urgent. Unless absolutely an emergency, the applicant MUST serve the respondent – notice is critical.
Since at the motion stage, very often, the Judge decides based on the sworn affidavit, the relief to be awarded. Ex-parte motions are therefore rare as they should be. If the applicant lies on the motion affidavit, great injustice could occur against the respondent.
Even in a case where notice has been given, the above analysis helps us to understand the circumstances where the Court may award relief depending on the urgency of the motion relief sought. The key point that I can emphasize from the above decision is the need to keep communication open between parties as far as possible. Where it is absolutely not possible or where there is abuse, then, certainly an urgent motion may arise, including the need to have a restraining order.
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