“As discussed previously, the respondent’s motion was brought ex parte. The Court of Appeal for Ontario, in a family law case, has made clear that an ex parte motion is to be used only in exigent circumstances, that the party bringing the motion must make full and fair disclosure of all material facts, including facts that may not be helpful to that party, that an ex parte order obtained without full and fair disclosure may be set aside even if the lack of full disclosure was unintended, and that the foregoing principles, well known to lawyers, apply equally to self-represented parties: see M.(A.) v. M.(J.), 2016 ONCA 644, at paras. 26-30, reproduced below:
ANALYSIS
Issue 1: Did the appeal judge err by upholding the trial judge’s finding that the father obtained an unlawful status quo on the ex parte motion?
(1) Ex Parte Orders
26 Rule 14(12)(c) of the Family Law Rules, O. Reg. 114/99, allows a motion to be brought without notice if “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.” If an ex parte order is made, under rule 14(14) that order must contain a requirement that the matter come back to court, if possible before the same judge, within 14 days or on a date chosen by the court. And under rule 14(15), an order made without notice must be served immediately on all parties affected, together with all documents used on the motion, unless the court orders otherwise.
27 These rules are consistent with the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, for other civil matters. An ex parte order is intended to be used only in exigent situations where the delay required to serve the motion would probably have serious consequences, or where the giving of notice by the service itself would probably have serious consequences. A judge hearing an ex parte motion who is not satisfied of the probability of those consequences will decide that the motion cannot proceed ex parte and order that notice be given.
28 Where a motion is brought without notice, the person bringing the motion must make full and fair disclosure of all material facts (rule 39(6) of the Rules of Civil Procedure), including facts that may not be helpful to that party’s position. An ex parte order that is obtained without full and fair disclosure, even if the lack of full disclosure was unintended, is subject to being set aside. See for example, Rinaldi v. Rinaldi, 2013 ONSC 7368 (Ont. S.C.J.).
29 Notice and the opportunity to be heard are basic tenets of our justice system. Ex parte orders are therefore made only in very limited circumstances. The requirement for full and frank disclosure is essential to allow a court to fairly make a temporary order that will affect the rights of another person in an emergency situation where the court has not heard both sides of the story.
30 That requirement is well-known to lawyers. It applies equally to self-represented parties.
The foregoing discussion in M.(A.) v. M.(J.), supra, also focusses on r. 14(12) of the Family Law Rules, O. Reg. 114/99, which deals with circumstances in which an ex parte motion may be brought. That rule makes clear that an ex parte motion is generally restricted to situations where there is immediate danger of a child’s removal from Ontario, or immediate danger to the health or safety of a child or the party making the motion and where, in those circumstances, any delay in serving the motion would probably have serious consequences. The respondent’s decision to proceed ex parte did not come within any of the circumstances itemized in r. 14(12).”