Urgent Motions

Urgent motions can involve criminal issues as well as child protection agencies besides custody and access. We are well versed in all aspects of family law. It is best to have a family lawyer represent you if you need to bring an urgent motion before the Court or if you need to defend against an urgent motion.

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The Ontario Courts are in favour of the status quo and the continuation of existing Parenting schedules because it is in the perspective of the Courts that the status quo should be maintained in the best interests of the child(ren). However, if there are safety concerns, like for example, if someone has been exposed to the Covid-19 virus, they will have to give up their scheduled time with their child(ren), in order to follow Public Health guidance measures, such as self-isolating for 14 days.

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Urgent Motions During Covid-19 Pandemic:

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Another issue that is coming up is that some people, because of their employment (for example, in the healthcare field), put themselves at greater risk of contracting the Covid-19 virus or other respiratory viruses like the Respiratory Syncytial Virus (RSV), and this could play a role in assessing the best interests of their child(ren). If there is a risk of passing on a detrimental respiratory virus to the child(ren), then it makes sense that there should be some modifications or restrictions on the Parenting schedule.

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If a parent recklessly exposes their child(ren) or their spouse to the Covid-19 virus, then that would be a very big issue and possibly be labelled as “abuse”. At the end of the day, the existing Court orders should be followed, and reasonable precautions should be taken in mitigating the risk of Covid-19. If an Urgent Motion must be done, the normal process is that the Lawyer would draft the materials and get them to the Triage Judge, who will then decide whether the Motion should proceed on an urgent basis or not. Please call us to discuss whether doing an Urgent Motion is right for you.

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There are a few additional requirements. The materials required for an Urgent Motion may need to be fairly concise and provide as much content and detail as possible to explain why the situation is urgent and requires urgent Court intervention. The standard of urgency is a lot higher during this time than it was before the pandemic. For example, in Smith v Siegar, the Child was enrolled in a school program in Utah. An Urgent Motion was brought for the return of the child from Utah. The Court looked at what was in the best interests of the child and granted the Motion.

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The best interests of the Child are the priority and the Courts are taking into consideration how the Covid-19 pandemic is affecting the normal factors that go into assessing what is in the best interests of the Child. However, just because your spouse is currently employed in the healthcare field, does not mean that this factor should be a barrier preventing them from seeing their child(ren). It is important to know what the Court perceives as reasonable precautions and abiding by those precautions.

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Urgent Issues Heard During Covid-19 Pandemic:

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Urgent issues that will be heard during the Covid-19 pandemic or request for Urgent relief where the safety of a child or parent is an issue, include a restraining order or exclusive possession of the home. In addition, some financial issues can also be the basis of an Urgent Motion, such as to get a Preservation Order, also known as an Non-Depletion Order, where one spouse is removing the family money and taking it somewhere beyond the reaches of the other partner. As well, medical decisions and when a parent (or both parents) wrongfully take the child, and keep the child, are also urgent issues that the Court will be hearing. Child Protection proceedings such as the initial hearing where the child has just been apprehended and brought to a place of safety, and any other Motions relating to the safety, protection and well-being of the child will also be heard.

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Courts want to deal with the resulting Covid-19 parenting issues that inevitably will come up on a case-by-case basis, so long as the matter meets the urgency criteria that is in place. Parents should try to negotiate the matter between themselves and between their Lawyers, and where these negotiations do not yield a reasonable solution between the parties, then an Urgent Motion may be required.

 

On the other hand, urgency due to financial distress is rarer, but it is a type of case that is currently being heard. In Thomas v Wohleber caselaw, the husband removed upwards of half a million dollars from the parties’ joint line of credit. The line of credit was secured against their matrimonial home, and therefore the husband was depleting the Family Assets. The wife brought a Motion requesting the funds be returned and a Non- Depletion Order, amongst other grounds of relief. In this case, the criteria that the Judge found was necessary for the matter to be found as urgent. The wife was by and large successful on this Motion

 

In comparison, another case was found to be not urgent, involving spousal and child support. In Thies v Thies caselaw, the parties separated after being married for 12 years. The Mom owned a small business, which was shut down since March 25, 2019., but she still has to pay ongoing business expenses, as well as the living expenses for herself and the children. The husband was in arrears. The judge found that the evidence did not amount to dire financial circumstances and that the Mom needed to provide more evidence, such as her previous income before the pandemic, her current total income, her current total expenses and the full extent and details of her financial resources. One thing she could have done was to provide an up-to-date financial statement showing all her expenses and income as well as her assets and debts to create more concrete evidence.

 

When you haven’t seen your kids in a significantly long time, Courts paradoxically will not consider that urgent because there has been no recent change in status quo (unless the kids were at risk of harm).

 

During the Covid-19 pandemic, an urgent concern could be dealt with immediately if it seriously affects the health, safety and financial well-being of the parties involved, and their children. The concern must not be speculative, but must be based on something concrete, and the concern must be clearly laid out in the evidence brought before the Court on an Urgent Motion.