What is a Motion? When can you bring a Motion? Who can bring a Motion? How do you bring a Motion?
By: Steven Benmor, B.Sc., LL.B., Family Lawyer
Jurisdiction: Ontario (Canada)
What is a Motion ?
A Motion is a court procedure that is used to obtain certain types of Orders from a Judge. You can bring a Motion to ask for an Order to resolve an issue on a temporary basis or to change an Order that has already been made. For example, a Motion may be brought for an Order determining support payments or visitation rights on a temporary basis until these issues are settled between the spouses or finally determined by a Judge at a trial.
When can you bring a Motion?
Under the Family Law Rules (Ontario), you can bring a Motion only after you attend a Case Conference. However, there are some exceptions to this general rule. A Motion can be brought before a Case Conference in situations of hardship or urgency (for example, if you need to apply for a restraining order because of immediate danger to the health and safety of you or your children), or if you need directions from a Judge (for example, you may need to ask for a Judge’s permission to file an Answer late if you have missed the deadline for filing).
If you bring a Motion before a Case Conference, the Judge will first decide whether your case fits within one of these exceptions. If the Judge decides that it does not, your Motion will only be heard after a Case Conference and you may be responsible for paying the other party’s costs.
Who can bring a Motion?
Anyone who is a party to a case or anyone (other than a child) who is affected by the case, can bring a Motion. The person who brings the Motion is the Moving party. The person who responds to the Motion is the Responding party.
How do you bring a Motion?
In order to bring a Motion, you must prepare, serve the other spouse with, and file in court, a Notice of Motion and sworn Affidavit. The Moving party must get a date for the Motion from the court office and include this date in the Notice of Motion so that the other party is notified of the hearing date. After the other party is served with the Notice of Motion and sworn Affidavit, a sworn Affidavit of Service must be filed in court to establish that the other party was served with the Notice of Motion and sworn Affidavit. In most cases, you must attend before a Judge to argue the Motion. If the Motion deals with financial issues such as support, then you must also prepare, serve and file a sworn Financial Statement. After all your documents are prepared, served and filed, the other party has the right to also serve and file a responding Affidavit.
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About the author: Steven Benmor practices Family Law in Toronto, Ontario, Canada. Visit Steven Benmor’s online Family Law Resource Center for concise answers to many more frequently asked Family law questions, feature articles on Family law topics, dozens of links to other Family law websites, and more at www.benmor.com. The information on this page is for discussion purposes only. It is by no means legal advice or even a statement of the law on this subject. Please do not rely on the accuracy or completeness of this information. Any question or concern elicited by the information on this page should be taken to a lawyer who will consider the facts of each case and the legal remedies available. |
