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Family Law Rules – Rule 14: Motions for Temporary Orders

Angela Princewill

November 14, 2015

RULE 14:  MOTIONS FOR TEMPORARY ORDERS

WHEN TO MAKE MOTION

14. (1) A person who wants any of the following may make a motion:

1. A temporary order for a claim made in an application.

2. Directions on how to carry on the case.

3. A change in a temporary order.  O. Reg. 114/99, r. 14 (1); O. Reg. 544/99, s. 6; O. Reg. 89/04, s. 6 (2).

WHO MAY MAKE MOTION

(2) A motion may be made by a party to the case or by a person with an interest in the case.  O. Reg. 114/99, r. 14 (2).

PARTIES TO MOTION

(3) A person who is affected by a motion is also a party, for purposes of the motion only, but this does not apply to a child affected by a motion relating to custody, access, child protection, adoption or child support.  O. Reg. 114/99, r. 14 (3).

NO MOTION BEFORE CASE CONFERENCE ON SUBSTANTIVE ISSUES COMPLETED

(4) No notice of motion or supporting evidence may be served and no motion may be heard before a conference dealing with the substantive issues in the case has been completed.  O. Reg. 89/04, s. 6 (3); O. Reg. 383/11, s. 3 (1).

(4.1) Revoked:  O. Reg. 89/04, s. 6 (3).

URGENCY, HARDSHIP ETC.

(4.2) Subrule (4) does not apply if the court is of the opinion that there is a situation of urgency or hardship or that a case conference is not required for some other reason in the interest of justice.  O. Reg. 202/01, s. 4 (1); O. Reg. 89/04, s. 6 (4).

(5) Revoked:  O. Reg. 89/04, s. 6 (5).

OTHER MOTIONS

(6) Subrule (4) does not apply to a motion,

(a) to change a temporary order under subrule 25 (19) (fraud, mistake, lack of notice);

(b) for a contempt order under rule 31 or an order striking out a document under subrule (22);

(c) for summary judgment under rule 16;

(d) to require the Director of the Family Responsibility Office to refrain from suspending a licence;

(e) to limit or stay a support order, the enforcement of arrears under a support order, or an alternative payment order under theFamily Responsibility and Support Arrears Enforcement Act, 1996;

(e.1) in a child protection case;

(e.2) made without notice, made on consent, that is unopposed or that is limited to procedural, uncomplicated or unopposed matters (Form 14B);

(e.3) made in an appeal;

(f) for an oral hearing under subrule 32.1 (10), 37 (8) or 37.1 (8); or

(g) to set aside the registration of an interjurisdictional support order made outside Canada. O. Reg. 114/99, r. 14 (6); O. Reg. 56/03, s. 2; O. Reg. 91/03, s. 4; O. Reg. 89/04, s. 6 (6); O. Reg. 151/08, s. 3; O Reg. 388/12, s. 6 (1); O. Reg. 322/13, s. 8 (1).

MOTION INVOLVING COMPLICATED MATTERS

(7) The judge who hears a motion involving complicated matters may,

(a) order that the motion or any part of it be heard as a trial; and

(b) give any directions that are necessary.  O. Reg. 114/99, r. 14 (7).

MOTION BY TELEPHONE OR VIDEO CONFERENCE

(8) A party who wants a motion to be heard by telephone or video conference shall,

(a) obtain an appointment from the clerk for the hearing of the motion;

(b) make the necessary arrangements;

(c) serve a notice of the appointment and arrangements on all other parties, and file it; and

(d) participate in the motion as the notice specifies.  O. Reg. 114/99, r. 14 (8).

DOCUMENTS FOR A MOTION

(9) A motion, whether made with or without notice,

(a) requires a notice of motion (Form 14) and an affidavit (Form 14A); and

(b) may be supported by additional evidence.  O. Reg. 114/99, r. 14 (9).

PROCEDURAL, UNCOMPLICATED OR UNOPPOSED MATTERS — MOTION FORM

(10) If a motion is limited to procedural, uncomplicated or unopposed matters, the party making the motion may use a motion form (Form 14B) instead of a notice of motion and affidavit.  O. Reg. 114/99, r. 14 (10).

RESPONSE TO MOTION FORM

(10.1) If a party uses a motion form (Form 14B) and no person served with the motion form serves and files a response within four days after being served, the motion shall be dealt with by the court as an unopposed motion.  O. Reg. 383/11, s. 3 (2).

WHERE NO REPLY PERMITTED

(10.2) A party who uses a motion form (Form 14B) and who is served with a response to it may not serve or file a reply.  O. Reg. 383/11, s. 3 (2).

MOTION WITH NOTICE

(11) A party making a motion with notice shall,

(a) serve the documents mentioned in subrule (9) or (10) on all other parties, not later than four days before the motion date;

(b) file the documents as soon as possible after service, but not later than two days before the motion date; and

(c) file a confirmation (Form 14C) not later than 2 p.m. two days before the motion date.  O. Reg. 114/99, r. 14 (11); O. Reg. 202/01, s. 4 (2).

NO LATE DOCUMENTS

(11.1) No documents for use on the motion may be served or filed after 2 p.m. two days before the motion date.  O. Reg. 202/01. s. 4 (3).

MOTION WITHOUT NOTICE

(12) A motion may be made without notice if,

(a) the nature or circumstances of the motion make notice unnecessary or not reasonably possible;

(b) there is an immediate danger of a child’s removal from Ontario, and the delay involved in serving a notice of motion would probably have serious consequences;

(c) 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; or

(d) service of a notice of motion would probably have serious consequences.  O. Reg. 114/99, r. 14 (12).

FILING FOR MOTION WITHOUT NOTICE

(13) The documents for use on a motion without notice shall be filed on or before the motion date, unless the court orders otherwise.  O. Reg. 114/99, r. 14 (13).

ORDER MADE ON MOTION WITHOUT NOTICE

(14) An order made on motion without notice (Form 14D) shall require the matter to come back to the court and, if possible, to the same judge, within 14 days or on a date chosen by the court.  O. Reg. 114/99, r. 14 (14).

SERVICE OF ORDER MADE WITHOUT NOTICE

(15) An order made on motion without notice shall be served immediately on all parties affected, together with all documents used on the motion, unless the court orders otherwise.  O. Reg. 114/99, r. 14 (15).

WITHDRAWING A MOTION

(16) A party making a motion may withdraw it in the same way as an application or answer is withdrawn under rule 12.  O. Reg. 114/99, r. 14 (16).

EVIDENCE ON A MOTION

(17) Evidence on a motion may be given by any one or more of the following methods:

1. An affidavit or other admissible evidence in writing.

2. A transcript of the questions and answers on a questioning under rule 20.

3. With the court’s permission, oral evidence.  O. Reg. 114/99, r. 14 (17).

AFFIDAVIT BASED ON PERSONAL KNOWLEDGE

(18) An affidavit for use on a motion shall, as much as possible, contain only information within the personal knowledge of the person signing the affidavit.  O. Reg. 114/99, r. 14 (18).

AFFIDAVIT BASED ON OTHER INFORMATION

(19) The affidavit may also contain information that the person learned from someone else, but only if,

(a) the source of the information is identified by name and the affidavit states that the person signing it believes the information is true; and

(b) in addition, if the motion is a contempt motion under rule 31, the information is not likely to be disputed.  O. Reg. 114/99, r. 14 (19).

RESTRICTIONS ON EVIDENCE

(20) The following restrictions apply to evidence for use on a motion, unless the court orders otherwise:

1. The party making the motion shall serve all the evidence in support of the motion with the notice of motion.

2. The party responding to the motion shall then serve all the evidence in response.

3. The party making the motion may then serve evidence replying to any new matters raised by the evidence served by the party responding to the motion.

4. No other evidence may be used.  O. Reg. 114/99, r. 14 (20).

NO MOTIONS WITHOUT COURT’S PERMISSION

(21) If a party tries to delay the case or add to its costs or in any other way to abuse the court’s process by making numerous motions without merit, the court may order the party not to make any other motions in the case without the court’s permission.  O. Reg. 114/99, r. 14 (21).

(22), (23) Revoked: O. Reg. 322/13, s. 8 (2).

MOTION RELATING TO FAMILY ARBITRATION

(24) A party who wishes to make a claim under the Arbitration Act, 1991 or the Family Law Act relating to a family arbitration, family arbitration agreement or family arbitration award that must or may be commenced by way of a motion may do so under this rule, even if the order being sought is a final order and, for the purpose, this rule applies with the following and any other necessary changes:

1. In addition to the documents referred to in subrule (9) or (10), the motion also requires,

i. copies of the certificates of independent legal advice required by the Family Law Act for the parties,

ii. a copy of the family arbitration agreement, and

iii. if an award has been made, the original award or a certified copy.

2. The documents referred to in subparagraphs 1 i, ii and iii shall be served and filed in accordance with subrule (11).

3. In the case of a motion to enforce a family arbitration award under section 59.8 of the Family Law Act, subrules (12) to (15) do not apply. O Reg. 388/12, s. 6 (2); O. Reg. 142/14, s. 7.

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