“The leading case with regards to the test to establish “urgency” under rule 14 (4.2) of the Family Law Rules and, thus, to be permitted to have a motion heard before case conference is Rosen v. Rosen 2005 CarswellOnt 68. In that case, Justice Wildman provided the following guidance:
2 Generally motions are now discouraged as the opening step in a family law file. The philosophy of the Family Rules is to encourage parties to sit down in a case conference prior to a motion, to see if some or all of the issues can be resolved, either directly or with input from the presiding judge. There is a deliberate attempt to try to avoid the damage that flows from the “nasty affidavit war” that accompanies the filing of a motion. This approach has been tremendously successful. The vast majority of cases are resolved at a case conference without the need for a formal motion.
3 In some instances, the parties cannot wait for a case conference. Rule 14 (4.2) provides that a court may hear a motion prior to a case conference if there is urgency or hardship or that a case conference is not required for some other reason in the interest of justice.
4 Mr. Singer says there is very little reported case law on the issue of what constitutes “urgency”. He refers me to the Webster Dictionary definition of “urgent”, which is “Pressing; necessitating or calling for immediate action; earnestly insistent; importunate.”
5 He has also directed me to the decision of Belch J in Hood v. Hood, 2001 CanLII 28129 (ON SC), [2001] O.J. No. 2918 (S.C.J. – Family Court) in which this definition was considered. Justice Belch refused to hear the motion in that case before a case conference. He commented, “It is my decision that 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.”
6 I agree with Justice Belch. However, given the apparent lack of direction in the case law about what constitutes urgency, I will add my comments about how I approach a request to proceed with an “urgent” motion prior to a case conference.
7 The first step should be an inquiry as to when case conference dates are available to deal with the matter. If there is a particularly pressing issue, the trial coordinator should be made aware of this, as there may be times that could be made available for cases of urgency to avoid a motion. In this particular case, I was surprised to hear from Mr. Singer that he had made NO inquiry about available case conference dates prior to bringing his motion. He says he assumed from a case conference date that was assigned in another matter that there would be a wait of 3 to 4 weeks. He was surprised to learn from me that there are dates available in this court on January 14 (two days from now); January 17 and 21 (Monday and Friday of next week) and January 24 (the following week). There are also several dates available after January 24.
8 The availability of case conference dates is important in assessing urgency. Obviously, if a date was not available for several months, a situation that would not otherwise seem urgent might become more critical.
9 The next step prior to bringing a motion should be to engage in settlement discussions to try to obtain a resolution of the pressing matters until the case conference date. The focus is on achieving a short-term agreement to get the parties through to the case conference date without a motion, rather than necessarily achieving a final resolution on all issues in the case. While the court will not want to hear about the content of offers that have been exchanged, due to the confidentiality provisions of Rule 18(8) it is important to know whether the parties have made some attempt to negotiate and, if not, why not.
10 For example, if an urgent motion is being considered because an applicant is in dire need of support, it is helpful in assessing urgency for the court to know whether support has been requested from the other side and, if so, whether proposals have been made. Generally, counsel will advise the court of their positions as part of their opening statements on the issue of urgency. I have seen situations where a moving party “urgently” requests, for example, $2000/month support to see him or her through to the first case conference date. In assessing whether this motion is urgent or not, it will make a difference to know whether the other side is completely refusing to pay any funds or is prepared to pay enough money to address immediate needs but not necessarily the amount requested by the moving party. If the payor’s opening position to the court is that he or she will pay, for example, $1500/month rather than the requested $2000 until the case conference, the urgency becomes less compelling. A similar analysis could be applied to “urgent” motions for custody, access, etc. It is generally difficult to establish that a motion is urgently needed, absent any attempt to resolve the issues by negotiation prior to bringing the motion.
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12 Absent canvassing case conference dates and showing attempts to resolve matters until the available case conference date, it is difficult to understand how urgency can be established.