Even though judges cannot make an order on every issue that arises at a conference, they can help you settle issues to avoid having to attend a motion.
A motion is necessary when you want to obtain a court order that a judge is not able to make at a conference. For example, you may need an interim order for custody and access or child support.
When you bring a motion, you have to prepare an affidavit and go before a judge to formally argue your case. The judge makes a decision, and the unsuccessful party often has to pay some or all of the winning party’s legal expenses (known as “costs”).
There is a significant cost involved in attending a motion, and you bear the risk that you may be required to pay some of your ex-partner’s legal expenses if you are not successful.
For information about the procedure when bringing an urgent motion, we encourage you to work with your women’s legal advocate and to refer to CLEO’s urgent notice flowchart.
In some situations, you may need an order from the court immediately, for example: Your ex-partner has the children and tells you he is taking them out of the country, or you have an immediate and serious concern for your safety or the safety of your children.
If this is the case, you may be able to get what is called an ex parte order from the court. You do this by bringing an emergency motion without notice, sometimes called an ex parte motion. Unlike every other process in family court, when you bring an emergency motion without notice, your ex-partner will not be served with your documents before the motion is considered by a judge.
A judge will review the material and decide whether to grant the order you have requested. You do not go into the courtroom and do not speak directly to the judge. For this reason, the quality of your written material is crucial and must contain all of the relevant information.
Successful emergency motions are rare. If you have a lawyer, your lawyer will advise you about whether or not there is enough evidence to support an emergency motion. If you don’t have a lawyer, you should discuss your concerns with your women’s legal advocate first and then with the family court duty counsel, who will be able to tell you whether or not you are likely to be successful.
Remember, 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. Emergency 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).
For information about the procedure when bringing an emergency motion without notice, we encourage you to work with your women’s legal advocate and to refer to the urgent notice information in the flowchart website created by CLEO.