What are “motions” and how can I help a woman bring one?
Women who have experienced abuse often need orders more quickly than the regular family court process provides them. Motions are a way for people to ask the court for short-term orders on any of the issues that have been raised in the Application or Answer. These orders are usually called interim or temporary and run for a specific period of time. They are intended to help families manage such issues as custody, access and support until the court can make a final decision.
For example, a woman who has left her abusive partner and has applied for custody may want a temporary order in place that clarifies the arrangement that will be made for the children until she gets a final order.
An important cautionary note
If you are supporting a woman who is thinking about applying for an interim custody and access order, talk to her about the importance of not accepting an interim order unless she is prepared to live with it as a final order. Judges give serious consideration to stability and maintaining the status quo when they make decisions about custody and access, so a temporary arrangement (e.g. an interim order), if it has been in place for several months or more and seems to be working, will be given considerable weight when the judge is deciding on a final custody and access order.
Starting a motion
The person who starts the motion is called the moving party and the other person is called the responding party. They are also still called either Applicant or Respondent, depending on who started the application. In other words, if a woman has started her family court case and now her partner is bringing a motion, she is both the Applicant and the responding party.
A motion cannot be started until the first case conference has been held.
If the woman is the one starting the motion, she has to complete a Form 14: Notice of Motion and Form 14A: Affidavit. Depending on what issue(s) her motion is about, she may also have to complete other forms, including a Financial Statement (Form 13) and an Affidavit in Support of Claim for Custody or Access (Form 35.1).
The Affidavit is the document in which she tells the court her story: what she wants in her interim order and why she should get it. For example, if the woman is seeking an interim order for sole custody, she needs to give the court some reasons for this. If she has concerns about her partner’s parenting, she needs to tell the court. Where there has been abuse, she needs to be able to share the details of this with the court. She will provide some of this information in her Form 14A and more of it in the Form 35.1, which asks detailed questions about the family, history of parenting and abuse.
If she thinks he might abduct the children, she needs to provide details about why she has this concern. For instance, perhaps he has threatened to do this in the past or he has the children’s passports or his family lives in another country.
She needs to tell the court why it is in the children’s best interests that she have sole custody at least on an interim basis. Perhaps she has been the primary caregiver in the past and she thinks it is best for the children that this status quo be maintained. Perhaps her partner’s abusive treatment of her means she does not think they could make decisions together effectively.
She should also set out briefly her plans for parenting in the future, including whatever kind of access between the children and their father she is prepared to support.
The next steps
Once her documents are complete, she has them issued by the court. At this point, the court clerk will fill in the date on which the motion will be heard.
She then must serve her partner with these documents at least four days before the date set for the motion. She can serve him by regular service, which means she can send him the documents by mail, courier or fax or by special service, which means she or someone else delivers the documents directly to her partner. Consider safety when serving an abusive partner.
Once the documents have been served, she files them and an Affidavit of Service, which explains how the documents were served, with the court. Two days before the motion is to be heard, she files a confirmation with the court (Form 14C) that says she is ready to proceed with her motion.
Her partner can prepare responding documents, which he must serve on her and file with the court. If he needs additional time, he can come to court on the date of the motion and ask for an adjournment.
What the judge will do
Before the date set for the motion, the judge will have reviewed the documents filed by both the woman and her partner. The motion hearing takes place in the courtroom. If the people have lawyers, they will be present and will do most of the talking.
The judge generally summarizes what s/he believes to be the key issues and arguments. S/he may ask either of the lawyers or the people directly to clarify anything that is unclear. Often, the judge will make a decision based on the written evidence already submitted (with any clarifications provided in the courtroom) without witnesses being called.
The judge can make an order at the time of the hearing. If s/he needs time to think about the evidence, the order will be issued some days later.
The order will be for a limited period of time and will usually include a date on which the people must return to court.
As noted above, because judges consider status quo arrangements to be extremely important when they make final decisions, it is very important that women not consent to interim orders unless they reflect the final outcome they would like to see. An interim order for an equal time sharing arrangement for the children that is in place for many months or even a couple of years can create a status quo that it is very difficult to persuade a judge to change, especially if no new concerns or evidence have arisen.
When you are assisting a woman with a 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.