Under normal circumstances, in a family law case, a family law litigant can bring a court motion to get a temporary order for access, support, or property issues. However, with the onset of the Covid-19 crisis, the availability of court relief has been circumscribed. On March 15, 2020, the Ontario Superior Court sent out a notice to the legal profession indicating that only urgent family motions will be heard by the court. As such, if you need relief from the Court during the Covid-19 crisis, you will have to convince a court that your motion for temporary relief is urgent.
The first step with an urgent motion during the Covid crisis is to get direction from a triage judge who will determine if the matter is urgent. The Court wants this step to be taken by way of an email. If the matter is urgent, the triage judge will give an endorsement setting out when the motion will be heard and how procedural issues related to Covid-19 will be dealt with, including service deadlines, date of appearance, filing details etc.
Your email requesting a hearing should include the notice of motion and some excerpts of your supporting materials that show the motion is urgent and must be heard. The materials must be under 10mb in size. You should include any relevant prior orders. Keep in mind that the Court wants the material to be concise. You should also convince the Court that all materials for the motion will be available, promptly.
You do not need to file physical files. Further, you do not need to file everything. You should only file what will be necessary. If you have jurisprudence to submit to the court, you should only file electronic caselaw, and make sure that it is hyperlinked.
If you have a new proceeding, you will need to file a Family Law Application, Affidavit 35.1 and Financial Statement along with your Urgent Notice of Motion, Affidavit in support of motion and draft order. All materials will continue to be monitored by the trial coordinator, who will ensure the materials are properly filed.
What qualifies as urgent? In short, the matter must be serious and very time-sensitive.
The court has given the following non-exhaustive list of matters that may be deemed urgent:
a) urgent relief relating to the safety of child
b) a restraining order
c) exclusive possession of a matrimonial home
d) restrictions on contact with a child,
e) essential medical decisions,
f) wrongful removal or retention of a child
g) dire financial circumstances requiring a non-depletion order
If you get an urgent motion, you should dress formally for any video appearance. However, lawyers are not required to gown for Superior Court video motions.
You should familiarize yourself with any video software that the court will use for any videoconference.
At the hearing, you are likely to have very strict time limits.
If you get an order on an urgent motion during Covid 19, you should only get the order issued if it is absolutely necessary. You should raise the issue with the court regarding the issuance of the Order. You will want written permission before asking for issuance.
Please bear in mind that the Covid 19 situation is changing daily, so please check the following website for regular updates: https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/.
If you reside in the Guelph / Kitchener area and have questions about urgent motions, please contact Purves-Smith Law for a consultation.
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