“Having courts open to the public in order to resolve their disputes is a bedrock requirement of a democratic society. However, courts and government, even in ordinary times, have had to enact rules that set out when and in what manner the public may have access to the courts. They do so in order to ensure that courts and litigants are not overwhelmed by disproportionate litigation, that lawsuits proceed in a just, proportionate and efficient fashion, and that the court’s resources are open to all.
The Family Law Rules (“FLR”) are guided by the primary objective of dealing with cases justly, both procedurally and substantively (r. 2(2)). They set out requirements for the orderly determination of family law cases. The FLR distinguish between the majority of matters that can be heard in the ordinary course from those exceptional ones that require immediate attention because of urgency and hardship.
Ordinarily, a party seeking to bring a family law motion must meet a number of preconditions:
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- The motion must be preceded by a family conference on the substantive issues in the case (r. 14(4). However under r. 14(4.1), the court can dispense with that condition if it finds that there is hardship or urgency.
- The parties must first attend a Mandatory Information Conference in cases dealing with net family property, the matrimonial home, support and a restraining order (r. 8.1 (1), (4), and (7)). However the court can obviate that requirement if it finds “… urgency or hardship or for some other reason in the interest of justice.” (r. 8.1(8)).
- The motion materials must be served on all other parties to the motion at least six days prior to the date that the motion is to be heard (r. 14(11)(a)). The parties to the motion must also confer or attempt to confer orally or in writing about the issues in dispute in the motion (r. 14(11)(c)). However under r. 14(12) a motion may be made without notice if:
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- a)the nature or circumstances of the motion make notice unnecessary or not reasonably possible;
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- (d) service of a notice of motion would probably have serious consequences.
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- If an order is made on a motion heard without notice, the matter must return before the court, and if possible, the same judge, within 14 days.
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The Oxford Canadian Dictionary defines the term “urgent” as:
1.demanding or requiring immediate action or attention; pressing (an urgent need for help). 2. expressing a need for prompt action or attention; insistent (an urgent call for help).
The test of urgency that allows a party to avoid a case conference before bringing a motion is set out in Rosen v Rosen, 2005 CanLII 480 (ON SC), [2005] O.J. No 62 (S.C.J.). There, Wildman J. adopted this description of urgency set out by Belch J. in Hood v. Hood, 2001 CanLII 28129 (ON SC), [2001] O.J. No. 2918 (S.C.J.):
… an urgent motion within a court proceeding contemplates issues such as abduction, threats of harm, dire financial circumstances and these can be addressed prior to a case conference.” [Emphasis added]
In Rosen, Wildman J. sets out the two key steps that must be taken to allow an urgent motion to be heard before a case conference. They are:
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- determining the availability of conference dates, and
- counsel/parties conferring in an attempt to arrive at a short term resolution before the matter comes to court.”
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