Since the inception of the Family Law Rules, motions prior to a Case Conference are the exception to the rule. The philosophy of the Family Law Rules was to move towards a less adversarial approach to family law. Specifically, the first step in a proceeding is a Case Conference where the parties can attempt to explore the chances of settlement, identify issues that are in dispute, explore ways of resolving disputes, and organizing the case for the next step, which is usually a Settlement Conference or a motion. There was a deliberate attempt to avoid the damage that flows from “the nasty affidavit war” that accompanies the filing of a motion.
In order for a party to proceed with his or her motion prior to a Case Conference, it is necessary to meet the test under sub rule 14(4.2), which provides that a Court may hear a motion prior to a Case Conference if there is urgency or hardship, or that a Case Conference is not required for some other reason in the interests of justice.
The leading case with respect to the interpretation of sub rule 14(4.2) is Rosen v. Rosen. In that decision the judge confirmed that an urgent motion within a court proceeding contemplated issues such as abduction, threats of harm or dire financial circumstances. The judge also set out the procedure to be followed in requesting an urgent motion prior to a Case Conference. First, an inquiry should be made when a Case Conference date is available to deal with the matter. If there is a particularly pressing issue, the trial coordinator should be made aware of this, as sometimes earlier Case Conference dates are available. A motion under subrule 14(6)(e.2) [procedural, uncomplicated or unopposed matters] of the Family Law Rules, via a Form 14B motion, can be used to advise the court of the pressing need for an early Case Conference date. Second, prior to bringing a motion, there should be some settlement discussion to try to obtain a resolution of pressing matters prior to the Case Conference. However, even absent attempts to obtain an early Case Conference date or attempts to resolve the matter prior to a Case Conference, there are cases where the facts require a motion to be heard prior to the Case Conference.
By Charles Baker