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Court holds that an Urgent and Emergency Motion in Family Court must always include an Affidavit in support

 

The Unified Family Court in Kitchener of the Ontario Superior Court of Justice recently held that an emergency and urgent motion during COVID-19 required an affidavit in support of the motion, service on the Applicant father, and grounds identifying why the matter before the court was of urgency.

 

Madam Justice L. Madsen held in Bruni v. Daunheimer-Bruni, 2020 ONSC 2017 that an urgent and emergency ex parte motion in writing could not be heard because counsel for the Respondent mother failed to file any affidavit in support of the motion setting out how any of the issues raised in the motion could be considered to be urgent. The Respondent mother was the moving party of the motion and was seeking, inter alia, permission to travel with the children without the consent of the Applicant father during COVID-19 emergency orders. The court held that there was no grounds of urgency since there was no affidavit in support of the motion, a federal travel advisory recommending against all international travel, and all Ontarians were being urged to stay at home and not to travel. If the Respondent mother wished to pursue her Motion to Change, she was required to have her documents issued and served accordingly in accordance with the Family Law Rules. The court stated that the matter would then be held in its ordinary course, which would require service on the Applicant father.

 

Our Take Away

 

What we learn from this case is that it is always important to retain experienced family law counsel to ensure that you have all of the required evidence before the court. All motions including those of an urgent and emergency nature require an affidavit in support of the motion containing all of your grounds for the motion and evidence by way of exhibits. If you fail to provide this information to the court, your motion will not be successful and will be adjourned or dismissed.

 

If you are dealing with a complication arising from a situation of mobility and COVID-19 as it applies to your family law and parenting matter, we invite you to contact an experienced lawyer at our firm for more information about how we may be of assistance.

 

Aubrey Sherman is the managing partner at Sherman Law LLP in Kitchener, Ontario. His practice focuses on family law, estate planning, and estate administration. The team at Sherman Law LLP in Waterloo Region has over 40 years of experience providing clients with creative and innovative solutions. If you wish to discuss your family law or estate planning matter in further detail, please contact our office to arrange for a consultation. We can be reached by phone at 519-884-0034 or by email.

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