Threshold for establishing the need for an urgent motion

A recent Ottawa case is a reminder that the threshold for establishing the need for an urgent motion prior to a case conference is a very high one. Absent urgency or an emergency, parties are expected to attend a case conference prior to bringing a motion. What qualifies as urgency is based on a two part test: (1) is there evidence that the parties attempted to resolve the issues, at least on a temporary basis, prior to bringing the motion for an expedited motion date?; and (2), is there a case conference date available in the near future? In other words, urgency might be established if there are no reasonably available case conference dates, and if efforts have been made to reach a short term resolution of the issues.

In Karar v. Ella, the mother brought an urgent motion one week prior to the date scheduled for a case conference. She was seeking increased security during the father’s supervised access with the children based on threats he made towards her and the children, including taking the children out of the country.

Although the mother’s affidavit submitted in support of the motion outlined options she would be satisfied with respect to increased security, her affidavit didn’t outline any efforts she had made to settle the issues with the father prior to the motion date. Moreover, the mother’s lawyer had sent recent letters to the father’s lawyer indicating that his client was prepared to comply with the temporary order on access that the parties had arrived at on consent two months earlier. Since the mother didn’t offer any explanation as to why she was initially prepared to continue with access “as is”, but then later came to the conclusion that it was unsafe, the motions judge decided that the situation was not “so extreme that the court must intervene immediately.”

In denying that the motion was urgent, the judge provided directions regarding the case conference that was scheduled to go ahead the following week.