In situations of extreme urgency, a woman may be able to bring an ex parte motion. In this process, her partner is not served with the documents and the judge makes a decision the same day as the woman files her Notice of Motion, Affidavit and other documents (for example, a Form 13 Financial Statement and/or a Form 35.1 Affidavit in Support of Claim for Custody or Access) based only on the written evidence the woman has provided.
Unlike motions generally, which we discuss in another FAQ, and which are a routine part of the family court process, successful ex parte motions are extremely rare. Because the judge makes an order very quickly based on evidence provided by only one party, without seeing either party in person, s/he wants to be very sure there is an extremely urgent situation that cannot be dealt with in any other way.
Circumstances for an ex parte motion
In the normal course of events in court, a judge does not make an order that affects someone unless that person has had sufficient notice and a chance to tell their story to the court.
Ex parte motions are one of the few exceptions to this rule. The emergency must be compelling before a judge will overlook the general principle of notice and audience (the right to be heard).
The following are examples of circumstances where an ex parte motion may be appropriate:
- Situations involving safety
- Situations involving children
- Situations involving property
- Situations of support (hardship)
Why ex parte motions fail
Many ex parte motions fail. Some of the most common reasons are:
- The judge believes that the person bringing the ex parte motion is already safe. This can pose a particular challenge to women living in a shelter who bring an ex parte motion for a restraining order because judges often think that residency in a shelter means a woman is safe. Women face similar challenges if their partner has been charged and a bail condition prohibiting him from having contact with her is already in place.
- The judge believes that the crisis has passed, at least temporarily. For example, perhaps the abuser has left the area or the woman has not brought her ex parte motion quickly enough so the judge is not convinced there is an emergency.
- The moving party has an alternative that will address the emergency.
- The moving party failed to properly communicate the emergency to the court.
- The circumstances that exist do not meet the threshold test of “emergency”.
The woman’s affidavit in support of her ex parte motion must be accurate, detailed and concise. The court will be looking for “red flags”, those circumstances in this case which meet the test of an emergency or hardship.
Where a claim is being made for a restraining order the presence of one or several of the following “red flags” will alert the court to circumstances that meet the test of an emergency:
- a history of violence against a spouse, especially if frequency and severity are increasing
- a history of violence against others
- a history of violation of prior restraining orders or other court orders
- threats of violence, homicide, suicide or abduction of child(ren)
- monitoring of mail, telephone calls etc; surveillance of spouse/child(ren)
- stalking behaviour
- alcohol or drug dependency
- depression / history of mental illness
- withholding of children, and/or
- victim expressing fear of repetition of violence
Where a claim is made to prohibit the children from being removed from the jurisdiction, and there is a risk of child abduction, any of the following “red flags” can alert the court to the urgency of the motion:
- prior abductions
- ties to a foreign jurisdiction (ie. ownership of property or other family living in another region, province or country)
- a lack of ties to this jurisdiction (i.e. no ownership of property or no family here)
- planning activities consistent with leaving the area
- passports in the hands of the abuser
- wealth or poverty (i.e. the ability to live elsewhere or no reason to stay here)
- transferable employment or no employment in this area
- the opinion that the other spouse has little value to child
- the belief that the child would be better off dead than with the other parent
- the false belief that the child is being neglected
- disagreement or noncompliance with court orders
- a high level of anger and anxiety
- a child who is very young and vulnerable
A recent event
It is usually the most recent event that gives rise to the emergency. Otherwise, the question arises as to why the applicant did not file a motion when the emergency first occurred. If there has been some delay between the matter becoming an emergency, and the applicant filing the motion, the applicant should explain this delay in detail.
It is often a good idea to present information about the most recent event – the one that has created the emergency – first, then provide the remaining evidence in chronological order so the judge can understand the history and sequence of events in the relationship.
Whatever the specifics of the ex parte motion, it is always important for the woman to indicate that she has a very high level of fear for her safety and/or the safety of the children.
An ex parte motion can be brought at any time during a family court case once the Application has been issued and filed.
The order made by the judge will be for a very short period of time, during which time the abuser has the opportunity to file responding documents. The woman and her partner then appear in front of the judge, who decides whether the existing order should be turned into an interim order, revised in some way or terminated.
Good evidence is key to a successful ex parte motion.
It is also a good idea to encourage women to meet with duty counsel before they prepare their documents as well as once they have drafted their documents. Duty counsel know the attitudes the judges in their jurisdiction have about ex parte motions, and women should take their comments seriously. They can also provide very helpful feedback on the court documents.
When you are assisting a woman with an ex parte motion, take the opportunity to review her safety plan. Abusers react to any kind of court activity and any change – actual or possible – to current arrangements with the children or finances, so women may need to put additional safety measures in place.