If you want the court to make a temporary order about some of the issues in your case, you can bring a motion. A motion is a where a party asks a judge to decide specific issues before a trial.
For example, you may need a temporary order that says where your children will live and what school they will go to.
A motion without consent means one of you doesn't agree with the temporary orders the other is asking for.
There are Family Law Rules that tell you what is needed at every step in a court case. Rule 14: Motions for temporary orders tells you what you need to do to bring a motion.
This family law court process flowchart explains each step in a family law court case. If you're making the motion, you're called the moving party. Your partner is called the responding party.
Usually you can bring a motion only after a case conference.
You can talk to a lawyer who can help you with your motion. If you can't afford to hire a lawyer for your whole case, some lawyers provide "unbundled" or "limited scope" services. This means you pay them to help you with part of your case.
If you can't afford to hire a lawyer at all, you may be able to find legal help in other places.
There are some motions that you can bring before a case conference. These are:
If you're bringing the motion, you need to fill out:
- Form 14: Notice of Motion, where you list the orders you want the court to make; or a Form 14B: Notice of Motion if you're asking for a procedural order such as more time to file your documents.
- Form 14A: Affidavit, where you tell the court why you're asking for those orders and include your evidence. Your evidence must be sworn or affirmed. This means you promise that the information in the document is true. It is against the law to not tell the truth when swearing or affirming an affidavit.
You may also need to fill out:
- Form 35.1: Affidavit in Support of a Claim for Custody and Access, if you're asking for custody or access and if you haven't already filed this form with the court. You have to answer some personal questions about your family situation and tell the court about your suggested parenting plan.
- Form 13: Financial Statement or Form 13.1: Financial Statement, if you're asking for child support, spousal support, or to divide property. You have to give information about your finances such as your income, living expenses, and assets and debts.
- Form 13A: Certificate of Financial Disclosure, where you list all the documents that prove what you said in your financial statement.
- Support Deduction Order, if you're asking for support.
- Support Deduction Order Information Form, if you're asking for support.
- A factum, which is a statement of the law you are relying on. A factum is usually a good idea and is sometimes required in the Superior Court of Justice.
- Updated table of contents, that lists the documents you're adding to your continuing record.
You need to call the court or go to the courthouse to ask the court clerk for a date when the judge will hear your motion. You write this date on your Form 14: Notice of Motion.
There is also a guide on how to serve documents.
Rule 3: Time tells you how to count time or days. Counting time or days is important because court staff won't accept your documents if you have not followed the rules.
For example, because you have 4 days to serve your partner, then Saturdays, Sundays, and holidays when court offices are closed are not counted.
But, if you have more than 7 days to serve or file your documents or to confirm your court date, then Saturdays, Sundays, and holidays when court offices are closed are counted.
Whoever serves the documents on your partner must fill out Form 6B: Affidavit of Service. In it, they say when, where, and how they served your partner. The form proves that your partner got a copy of your documents and knows that they have to respond to them.
File your documents
You need to go back to the courthouse once your partner has been served, to file your documents and Form 6B: Affidavit of Service in your continuing record. You do this at the court counter, with the help of the court clerk.
There is a guide on how to file documents.
The continuing record is your court file that has all the important documents in your case. When you add a document to the continuing record, you also have to update the table of contents by listing each document you're filing.
Your partner must serve you with a copy of their documents at least 2 days before the date of your motion.
They have to give you their Form 14A: Affidavit, where they tell the court why they agree or don't agree with the orders you're asking for and their evidence.
They may also give you:
- Form 14: Notice of Motion, where they list the orders they want the court to make if they want something other than to have your motion dismissed; or a Form 14B: Notice of Motion if they're asking for a procedural order such as more time to file their documents.
- Form 35.1: Affidavit in Support of a Claim for Custody and Access, if you or your partner are asking for custody or access and if they haven't already filed this form with the court. They have to answer some personal questions about the family situation and tell the court about their suggested parenting plan.
- Form 13: Financial Statement or Form 13.1: Financial Statement, if you or your partner are asking for child support, spousal support, or to divide property. They have to give information about their finances such as their income, living expenses, and assets and debts.
- Form 13A: Certificate of Financial Disclosure, where they list all the documents that prove what they said in their financial statement.
- Support Deduction Order, if you or your partner are asking for support.
- Support Deduction Order Information Form, if you or your partner are asking for support.
- A factum, which is a statement of the law they are relying on. A factum is sometimes required in the Superior Court of Justice.
- Updated table of contents, that lists the documents they are adding to the continuing record.
Your partner must serve you with a copy of their documents at least 2 days before the date of the motion.
You should read these documents carefully. Make sure you understand what your partner is asking for.
If your partner asks for new things that are not in your court forms, you don't have to respond to them. If you don't, it means you don't agree with what your partner has said.
But, if you want to reply to their new claims with your facts and evidence, you fill out Form 14A: Affidavit. If you reply, you must serve and file your reply 2 days before your motion.
You and your partner must tell the court that you will be at your hearing and that you're ready to go ahead.
You each do this by filling out a Form 14C: Confirmation. Write down the amount of time you think you'll need, the specific issues that will be discussed, and the documents the judge should read.
You can fax the form or take it to the courthouse in person.
Do this no later than 2:00 p.m. at least two days before your hearing date. If you miss this deadline, the hearing may not be held and you will have to get a new date.
When you go to your court date, the judge will have all the documents you and your partner filed.
The judge may have questions for you to help them make a decision. So you need to be prepared to speak in the courtroom. You should stand up when speaking to a judge. Remove your hat and don't chew gum when you're in court. And, turn off your cellphone.
There are usually no witnesses on a motion. You can only refer to the evidence in your affidavit or other documents you filed with the court. So it's very important to include all the evidence you have in your affidavit.
At the end of the motion, the judge can make a temporary order that lasts for a few weeks or months while you and your partner continue to try to resolve your issues. The judge may make a decision right away. Or, they may "reserve" their decision and make it at later time.
If the judge reserves their decision, it means they need more time to review the evidence and think about the orders you're asking for. You may need to come back to court for the decision or you may be told about the decision in writing.
Your case continues through the family court process after a motion. You must follow any temporary orders until:
- The judge makes a different decision.
- You and your partner agree on how to resolve your issues.
The judge may order cost consequences. This means the party who gets the orders they're asking for may get part of their legal fees paid for by the other party.
The judge may ask you for reasons why your partner should pay for some of your costs, or why you should not have to pay for some of your partner's costs.