Tips & Tricks- emergency motions

Clients will tell me that the police have advised them to bring an emergency motion for certain types of relief- including exclusive possession of the matrimonial home, or for custody. The fact is that family court is not set up to hear urgent, or emergency, motions except in very limited circumstances. Where someone is threatening to abduct a minor child or take them out of the jurisdiction, you are likely entitled to an emergency hearing. But without the threat of harm to a child, you may not be in a position to request an urgent motion in the context of interim custody or access.

Although the court has regular motion dates every week for procedural matters (and you only need to schedule a procedural motion the day of the hearing), procedural motions are often unopposed and are for routine, uncomplicated matters like disclosure, getting orders for substituted service, or getting off the record. In other words, while procedural motions can be heard on short notice, substantive motions which require extensive materials to be filed and reviewed by the court as well as the opposing party usually cannot be.

In the normal sequence of events, you’ve got to complete a case conference before you can bring a motion for any type of substantive relief. Given that a case conference might be scheduled several months from the date when you filed your original Application, and then a motion date scheduled several months from the completion of the case conference, you can understand why family court litigants look for ways to bypass the normal process.

When a matter is a true emergency, you can bring a request for a motion to be heard ahead of the case conference. You would attend at a motion in front of a judge to argue whether the matter at issue qualifies as a genuine emergency or not. If permission is granted, then you are free to bring your motion forward prior to the case conference. However, even if the requirement for a case conference is dispensed with, it can still be a challenge to secure a quick motion date, depending upon the availability of court time.

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