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EXPARTE ORDERS IN FAMILY LAW


Sometimes, I have family clients who want an urgent motion for relief without even notice to the opposing party. This is called an ex parte motion for relief. Normally family motions have to be brought on notice to the opposing site to ensure equity and to ensure principles of natural justice so that both parties are heard.


Generally when an Ex Parte motion is brought, a court will order that within 14 days of such a motion being heard, the matter needs to return to court with notice to the other side to determine if such an expert relief should continue.


What does ex parte mean? This means that even without listening to evidence from the other side, only based on evidence of the moving party, the Court can grant relief at least for a short term because the court is so persuaded by the evidence of the moving party.


This necessarily means that a moving party must be completely transparent and honest in its factual evidence without exaggerating and in coming to the court with clean hands . The moving party needs to tell the court pros and cons of the case rather than only giving its own evidence.


Ex Parte Motions are rarely given but sometimes frequently sought by litigants. For a variety of reasons, the moving party can think that it’s evidence is so important that the opposing party should not even know about it or sometimes a moving can ask for an ex parte motion to obtain relief from the court and convert that into a status quo thus advantaging its position versus the other party.


Moving parties must be very careful. In a recent case by Justice Chang, Amato v Hall, 2024 ONSC 2422 (CanLII), <https://canlii.ca/t/k48v4, the Judge reversed the ex parte motion relief order previously given. He made scathing remarks against the moving party as follows:


"As stated by Cameron J. in McGrath v B.G. Schickedanz Homes Inc. (2000), 11 C.P.C. (5th) 235 (Ont. S.C.), at paras. 34 and 36,


Ex parte motions are a very serious matter.  They can have a devastating effect on an absent responding party.  The Court relies upon the applicant for full and frank disclosure of all the relevant facts in the supporting affidavit material."


The Judge found that the ex parte order should be set aside.  The applicant made material omissions in the motion materials she put before Mills J. on February 22, 2024, which warrant the resulting order being set aside.


The most concerning material omission from the applicant’s February 20, 2024 affidavit was the fact that, despite her claim that the respondent poses a significant risk of harm to AH and NH, the applicant left both children in his sole care on each of the four days leading up to the February 22, 2024 motion hearing.  On three of those four occasions, the applicant left the children with the respondent so that she could go to the gym. 


The Judge said:


[31] Other than the self-serving statements in her affidavits, the applicant has adduced no evidence to satisfy me that the respondent poses a risk of harm to her, AH or NH.  The documentary evidence now before the court does not, as the applicant claims, corroborate the statements in her affidavits. 


Justice Chang found out about the misstatements and lack of corroboration because he heard the second motion at a later date when he reviewed evidence from the respondent. This is why he made the scathing remarks when he found evidence directly contradicting what the applicant had initially put forward to the court in obtaining the ex parte relief without notice to the respondent.


In other words, counsel have to be very careful in gleaning information from the client when putting forward such material to the court. At Shankar Law, you can trust us to be thorough and careful in all our actions.


We are to help with all your legal needs. Our staff are skilled, thorough and reliable. Let us help you with your Family, Criminal, Real Estate and Will matters. Now with 3 convenient locations in Owen Sound, Port Elgin and Wiarton.




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