©2010 Luke’s Place Support & Resource Centre for Women & Children

This manual provides general information on legal and related matters and should not be relied upon as legal advice. The manual is a summary of certain aspects of the law and legal procedures for general information purposes only and is accurate as of August, 2010. A woman should retain a lawyer to provide her with legal advice in the context of her particular circumstances.

Luke’s Place Support and Resource Centre for Women and Children is a not-for-profit organization operating with no core funding. We use the sale of our resources and trainings as income to support our ongoing programming. However, we are happy to share the use of our copyrighted materials with other not-for-profit organizations working on the issue of violence against women, as our resources permit. If you have purchased this manual, please feel free to make limited use of it within your agency. We ask that you credit Luke’s Place in the event you reproduce sections of the manual for distribution purposes. Use of the manual beyond this without the advance, express consent of Luke’s Place is not permitted under any circumstances. Please contact us for further information or to discuss your needs.

www.lukesplace.ca

We gratefully acknowledge the enormous contributions of Family Law Lawyer Clayton Spencer and Luke’s Place Legal Support Worker Tanya Conlin for updating of the toolkit, and thank Pamela Cross, Legal Director of Luke’s Place and Melissa Belliveau, Family Law Lawyer for their insightful review and feedback.

Table of Contents

Page

Introduction 1

Waiver 2

Emergency Numbers and Safety Plan 3-5

Safety at Family Court 6

Applying for An Emergency Motion (Adapted From After She Leaves) 7-9

Form 14 Motion “Without Notice” 10-11

Commentary Re: Form 14 Motion “Without Notice” 12-13

Form 14A Affidavit 14-15

Commentary Re: Form 14A Affidavit 16-20

Form 8 Application (General) 21-26

Commentary Re: Form 8 Application (General) 27-28

Form 35.1 Affidavit in Support of Claim for Custody and Access 29-38

Commentary Re: Form 35.1 Support of Claim for Custody and Access 39

Form 14A Affidavit for Follow – Up Court Appearance 40-41

Commentary Re: Form 14A for Follow – Up & Other Comments 42-43

Simplified Steps in an Emergency Motion – Unrepresented Clients 44

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A properly executed Emergency Motion can be a critical step towards ensuring the safety of women who have experienced abuse and their child(ren). This toolkit was drafted because many women who have experienced violence find themselves ill-prepared for this process. They often lack information and support. As women often apply to the Family Court at a time of crisis, it is not unusual for many to be overwhelmed by the number of forms and the amount of information required. This package and the accompanying training are intended for support workers who work through the family law system with women who have experienced abuse. Through this training you will: learn how to identify when or if an Emergency Motion is appropriate, become familiar with the required forms and how to fill them out, know what information is required to support the Emergency Motion, and understand the steps in this process and how to prepare women for it.

This package should not be used without first participating in the accompanying training. This package is not intended to be given directly to a woman who has experienced abuse. This toolkit provides information on legal and related matters, but it is not a substitute for legal advice. Anyone wishing to file an Emergency Motion should first obtain legal advice in the context of her particular circumstances. Free legal advice can be obtained at Family Law Information Centres throughout Ontario, as well as with a Family Violence Consultation Certificate from Legal Aid Ontario, which allows a woman to receive a free consultation (with a lawyer who accepts these certificates) to a maximum of two hours. Prior to beginning work on an Emergency Motion with a woman, the support worker should ensure that she receives the safety plan and emergency numbers provided in this package. She should also sign a waiver, such as the one contained in this package, and/or another such waiver as deemed appropriate by your agency. It is usually not appropriate for women who have experienced abuse to complete these forms in the waiting room at a Family Law Information Centre (FLIC). The quality of the information required for these forms is critical. These forms should be written in a quiet, safe place, with a minimal amount of distraction. Should a woman wish to obtain legal advice prior to beginning these forms, she can go to FLIC for advice, leave to complete her forms, and then return to FLIC for further assistance.

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I, _____________________, have been advised of, and understand the following;

Service Waiver

Release of Liability

In consideration for utilizing the services of Luke’s Place, I release Luke’s Place, its staff, Board of Directors, students and volunteers of all claims past, present and future.

Initial _____

Signature: _____________________ Witness: ___________________ Date: ________________________ Date: _____________________

That Luke’s Place offers support and information regarding the Family Law process, which does

not constitute legal advice or take the place of legal counsel. That prior to commencing or when proceeding with a legal matter, I should obtain legal advice

from a Family Law lawyer. I acknowledge that I should consult a lawyer prior to completing these forms. These

documents are not a substitute for legal advice. Where immigration status is an issue, I should seek legal advice from an Immigration lawyer.

These forms do not address issues unique to certain cultures or religions. I should seek

additional advice if required to address these issues. Completion of these forms does not guarantee that I will be granted the order that I am

seeking. I should obtain appropriate safety planning advice before proceeding with this motion. I

acknowledge that I have been given the “Emergency Numbers and Safety Plan” section of this package.

If my safety is at risk, I should contact local Police Services at 911 for emergencies.

This document is not intended for copy or distribution, in whole or in part by unauthorized

parties. Initial _____

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The safety of your clients and the safety of their children through the separation process is very important. Please take a moment to review this section.

Police 911 The Assaulted Women’s Help Line 1-866-863-0511 Fem’aide 1-877-336-2433

Shelternet www.shelternet.ca

The Emergency Escape Plan focuses on the things women can do in advance to be better prepared in case they have to leave an abusive situation very quickly.

In creating a safety plan it is important to remember that:

Although she cannot control her (ex) partner’s violence, it may be possible to increase her safety and the safety of her children.

A safety plan is needed whenever the possibility of abuse is identified.

This safety plan information should be specifically designed for actions that your client can take.

This safety plan information should also include actions she can take to increase her children’s safety.

It is important to become familiar with and to review and/or revise a safety plan regularly. Abusive situations and risk factors can change quickly.

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The following is a list of items you can review with your clients. They should be encouraged to try to set aside these items in a safe place (at a friend’s or family member’s home, with her lawyer, in a safety deposit box, etc.). It is helpful to take a photocopy of the following items and store them in a safe place, away from the originals:

passports, birth certificates, immigration papers, for all family members school and vaccination records medications, prescriptions, medical records for all family members social services identification work permits divorce papers, custody documentation, court orders, restraining orders, marriage certificate lease/rental agreement, house deed, mortgage payment book bank books insurance papers investment statements address/telephone book picture of spouse/partner health cards for yourself and family members income tax returns and notices of assessments from Canada Revenue Agency all cards you normally use e.g. Visa, phone, Social Insurance, ATM (In your wallet) car/house/office keys cheque book, bank books/statements driver’s license, registration, insurance emergency money (in cash) hidden away

If your client is living with her abusive partner:

Get her Emergency Escape Plan in order, and review it with her as often as possible. Help your client to create a telephone list with the numbers of local police, nearest shelter,

assaulted women’s help line, crisis help line, family members, counsellors, and the children’s friends.

Make sure that the client has made arrangements with friends or family so that she can stay with them if necessary.

Help your client to try to predict the next likely violent episode, and make plans for the children to be sent to friends, family etc. (Try to anticipate his "cycle".)

Advise your client to teach the children to let her know when someone is at the door, before they answer the door.

Counsel your client to teach the children how to use the telephone (and any cellular phone) to contact the police and the fire department.

Advise your client to create a code word with the children and/or friends so they know when to call for help.

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Counsel your client to establish a Safety Plan for each child. Advise your client to teach each child how to make a collect call to them, and to a special friend, if the client’s partner takes the child.

If your client is not living with her abusive partner:

Advise your client to change the locks on her doors and windows. She can install a peephole in the door. Also, she can change the locks on her garage and mailbox.

She can teach her children to tell her if someone is at the door and not to answer the door themselves.

Make sure that the client keeps her restraining order near her at all times. Make sure that the school, daycare, and police have a copy of all court orders, including

restraining orders, custody and access orders, as well as a picture of the abusive partner. If possible, try to predict the next likely violent incident and advise your client about being

prepared. If your client has call display on her phone, advise her to be careful about who can get

access to the stored numbers (example, last number dialed, etc.). Suggest to your client that she have her telephone number unpublished, as it is harder to

track than when it is unlisted. Advise her to block her number when calling out. (*67 to block; *57 to make a record of an incoming call that can be accessed by police)

If your client thinks her partner may enter her home, suggest that she rearrange her furniture. The abusive partner may bump into the furniture. She should also keep utensils and knife blocks in the cupboard so they are not so accessible.

Advise your client about the possibility of getting a cellular phone that she can pre-program with numbers of people to call.

If the client lives in an apartment, advise her to check the floor clearly when she gets off the elevator. She should check mirrors and be aware of doorways in hallways. She can speak to security, or make an anonymous call requesting safety assistance in her building.

She can purchase rope ladders to be used for escape from upper floors. She can consider putting wire around balconies. Replace wooden doors with steel or metal doors, if possible. Installing smoke detectors and fire extinguishers on each floor increases safety. While not always an option, some women may want to consider the advantages of getting a

guard dog. She can install an outside lighting system that lights up when anyone comes close to the

house. The client should do whatever she can to install additional security systems, including

additional locks, window bars, poles to wedge against doors, electronic systems, etc. – anything to provide added security.

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The family law process provides a number of unique safety challenges. There are things women can do to increase their safety; If her former partner is unaware of her address and she wishes to keep her address

undisclosed, she can secure an alternative address for court purposes, such as a friend or family member or a post office box that she checks regularly. The required address on the court forms does not have to be her residential address; it is simply an address where she can be served. It is critical that she chooses someone she can trust to forward, immediately, any documents received. Service to this address will be valid, even if she never receives the paperwork.

If a woman has any safety concerns on her way into the court house, she should report them to police or court security. She should also inform them of any restraining orders, terms of release or peace bonds which may be in effect.

She can seek assistance while at family court from the police or from the Court Services Officer, who will be able to contact the police quickly in the event that they are needed. Her discomfort with contact with her former partner is enough of a reason to seek help.

In many court houses, there are consultation rooms which are available on a first come, first served basis. Being away from her former partner may help her to feel more comfortable. The Court Services Officer can help with this.

Security is available to walk her to her vehicle. It may also be necessary for her volunteer or support worker to request an escort to their vehicle also. Alternatively, if there is not enough staff available to provide this service, a request can be made to hold back the other party giving her and her support worker time to get to their vehicles.

Many women report feeling so anxious that they cannot eat or drink before their court time: it is important to stay hydrated and to eat something. Not doing so can have a negative impact on overall wellness and ability to concentrate and make decisions.

For women whose former partners do not know where they are, it may be advisable not to go directly home after court.

A former partner may be very angry as a result of the outcome at family court. It is critical that she employ her safety plan and be more vigilant in the hours and days following court.

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Rule 14 of the Family Law Rules prohibits a party from bringing a motion prior to a case conference, except in unusual cases where there is a situation of:

urgency; hardship; and in the interests of justice (a catch-all phrase).

The following are circumstances where an Emergency Motion may be appropriate:

Situations involving Safety:

o a request for a restraining order where there has been violence, stalking, etc.; o where serving a notice of motion would have serious consequences.

Situations involving Children:

o a request for temporary custody (usually paired with a request for a restraining

order); o a request for the return of children withheld by the other parent; o a request that children not be removed from the jurisdiction where there is a

danger a parent may take the child away; and o a request for the return of children taken from their home to another jurisdiction

by the other parent.

Situations involving Property:

o a request for exclusive possession of the family home (in rare circumstances); and

o a request to freeze assets to prevent disposition of assets or where there is a danger funds will be removed from the jurisdiction.

Situations of Support (hardship):

o a request for temporary child and spousal support in dire financial circumstances

(in rare circumstances).

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There are two types of “emergency” motions (both are required on the same form, Form 14) that can be brought before a case conference.

A Motion Without Notice This motion is also called an ex parte motion or an Emergency Motion. In this type of motion, the other side is not served with documents before the motion is considered by a judge. A judge will review the material and decide whether to grant the order requested. The person bringing the motion does not attend in court at this stage, and will not speak directly to the judge. For this reason, the quality of the written material is crucial, and must contain all of the relevant information.

An Urgent Motion

In this type of motion, court documents are served on the other party before the motion is heard. The other party has an opportunity to file responding material. The motion is then argued in court before a judge.

The choice of motion will depend upon on how quickly the issues need to be dealt with, and the relief being sought. (See below.) Procedure: Motion Without Notice These motions are usually brought at the start of a court case; however, they can be used at other times, if and when an emergency arises.

There are four key forms required for a motion without notice:

Application (Form 8), Notice of Motion (Without Notice) (Form 14), Affidavit (Form 14A). Affidavit in Support of Claim for Custody or Access (Form 35.1)

These four forms will be reviewed in this toolkit.

If the claim involves issues of property or support, she should also include a Financial Statement (Form 13 - Support) or (Form 13.1 - Property and Support) and her Notice of Assessments for the previous three years. In the event that she is unable to provide them, she should explain why. When forms are filed with the court, they all go in the “Documents” volume of the Continuing Record, also known as the “Red Volume”.

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On an Emergency Motion, the judge reads the motion material, the Application and the Form 35.1, and then writes an endorsement. The endorsement will state whether the motion has been dismissed or granted, the terms of any order made, and the next steps required, usually related to service of the motion and the next court date. The person who filed the motion usually does not speak with the judge and is usually not asked to attend in a courtroom. The endorsement will be typed up by the court staff in the proper format of a court order, unless the person who filed the motion has a lawyer. If she has a lawyer, the lawyer will have to draft the order and file it with the court for issue (signing and filing in the court file). The rules say that an order obtained without notice must be immediately served on the party affected, together with all other court documents. The judge granting the temporary order without notice must bring the matter back to court (if possible before the same judge) within 14 days to determine whether the temporary order should continue. At this time, the judge may also change the order, if that it is appropriate. Why Emergency Motions Fail Many Emergency Motions fail. Some of the most common reasons are: 1. The moving party is already safe.

Police or Children’s Aid Society or criminal court intervention has already occurred. For example, the abuser may be in jail or released with conditions not to contact her or return to the home.

The moving party cannot be harmed by the abuser any longer. For example she may have moved a great distance or is staying at a shelter for women and children who have experienced abuse.

2. The crisis has passed.

The aggressor/abuser has left the area permanently. The moving party delayed in bringing the Emergency Motion so long that the court is

not convinced there really is an emergency. 3. The moving party has an alternative that will maintain safety. 4. The moving party failed to properly communicate the emergency to the court. 5. The circumstances that exist do not meet the threshold test of “emergency”. For more

on this topic, please see page 17.

Remember, in the normal course of events in court, a judge does not make an order that affects someone unless that person has had sufficient notice and a chance to tell their story to the court. Emergency Motions are one of the few exceptions to this rule. The emergency must be compelling before a judge will overlook the general principle of notice and audience (the right to be heard).

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Forms can be found at all Family Law Information Centres or at

www.ontariocourtforms.on.ca Commentary Re: Notice of Motion (WITHOUT NOTICE), Form 14 PLEASE NOTE THAT THESE NUMBERED COMMENTS CORRESPOND WITH THE NUMBERED PARAGRAPHS FOUND ON FORM 14 (PAGE 11 OF THIS TOOLKIT). 1. On a motion without notice, a request for temporary sole custody will often be unsuccessful.

This is because of the great prejudicial effect that a sole custody order can have for the respondent, especially if made so early in the court proceeding. In other words, because the respondent will be unaware that this motion has been brought and has not had a chance to present his side, the court will likely try to minimize the impact of any order affecting him. However, it is still important to make a claim for sole custody in the motion. The Emergency Motion will come back to court in two weeks or less. If the matter goes undefended, the applicant will have a much better chance of getting a temporary custody order at that time. Even if the motion is defended, the court may be convinced that a temporary custody order should be granted.

2. It is acceptable to argue in the alternative on a motion. This offers the judge more options.

It is okay to be creative when arguing in the alternative, so long as the requests help keep the abused party and the children safe.

2.1 If the child has been abducted by the respondent, do not forget to ask for the return of the

child. An emergency order stating that the child’s primary residence is with the applicant means nothing unless the court also orders that the child should now be returned to the applicant’s care.

3. Requests for restraining orders should be specific. Without specifics, a request for a

restraining order will often result in an order that is too vague. Judges can make detailed orders, but you need to request the specifics. It is possible to add other terms to this paragraph, as appropriate to the facts of the woman’s case. However, the terms listed in the draft form provided should work for the majority of cases. Another point to consider here is that under s. 46 of the Family Law Act, the Family Court can only grant orders against someone with whom the applicant has cohabitated. Section 35 of the Children’s Law Reform Act is broader, but if a restraining order is sought against anyone other than the other parent, that additional person will have to be added to the case as a party.

4. Police assistance should not be requested (and will certainly not be granted) in every case.

Judges tend to want to see whether an order will be followed voluntarily before they will involve the police. In most cases, a judge will want to allow the respondent to have a say in court before the police come to his door. However, especially in emergency cases where a child has been abducted, police assistance should be requested right away. Otherwise, the risk that the respondent will flee with the child is increased.

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5. In our view, the best practice on an Emergency Motion is to ask for costs, even though this

will almost never be granted as part of the initial emergency order. Costs may well become a live issue on the return date in two weeks. This is especially so where the respondent uses the tactic of hiring an expensive lawyer to file multiple documents and to greatly increase the work involved on the motion. If the applicant is going to be assisted by counsel on a Legal Aid Certificate on the motion’s return date, Legal Aid will definitely want the opportunity to receive a cost award.

6. This paragraph may assist the applicant in obtaining a useful (and creative) order. This

permits the court to award relief that is not specifically requested. OTHER CONSIDERATIONS Tactically, some people might suggest that an Emergency Motion is a proper place to seek

restrictions on a respondent’s access to the child(ren). On some occasions judges have made access or quasi-access orders on an Emergency Motion. That has occurred despite the fact that the Family Court in Durham Region has been fairly consistent in its view that access is not an emergency. With respect to the contrary opinion, we submit that the best practice is to let access be raised by the person who actually seeks it. This means that the respondent should file an Answer which sets out his access claim. If you raise access issues in an Emergency Motion, it invites the court to make potentially prejudicial access orders at a time when all of the relevant access facts may not be before the court. Such facts may not be known until an assessment is held in the case. Further, at this stage of the case, it may not even be known if the respondent intends to seek access. Some respondents do not, especially if it means that they actually have to put pen to paper to ask for it.

A CPIC form must be completed when an application requesting a restraining order is made. Make sure that the applicant knows that Emergency Motions, motions without notice, and ex

parte motions all refer to the same procedure. Many judges use these terms interchangeably, which can be confusing.

Resist the urge to get too fancy on an Emergency Motion. Judges faced with Emergency Motions usually have other time pressures in the day and they want to be able to determine, as quickly as possible, what the applicant wants, and why. The judge wants to keep the matter focused and on point.

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1. An affidavit is a sworn, written statement, which "tells the story". The affidavit sets out the

facts, which are the basis of the claims made in the notice of motion. 2. Read the italicized paragraph contained in the affidavit PRIOR to writing the affidavit. It

provides useful guidance for the proper structure of the affidavit, and if followed, it makes the document easier for the judge to read. This paragraph reads as follows:

"Set out the statements of fact in consecutively numbered paragraphs. Where possible, each numbered paragraph should consist of one complete sentence and be limited to a particular statement of fact. If you learned a fact from someone else, you must give that person's name and state that you believe that fact to be true."

3. While all necessary information must be included in the affidavit, it is just as important to

ensure this information is presented in a way that can be read and understood. Sometimes, if a judge refuses to grant the motion, he or she will note in their endorsement (their written reasons) that they could not understand certain points made in the affidavit, including timeline issues (When did the various events happen? What was the most recent event? What is the emergency?), or jurisdiction issues (Where do the parties and children ordinarily reside? Where are the children now, and with whom are they residing?).

4. Include all of the following information in this sequence. FAILURE TO PROVIDE ALL OF

THIS INFORMATION MAY CAUSE THE MOTION TO BE DENIED:

I. Court's Jurisdiction:

The Court needs to know: where the parties and children ordinarily resided prior to separation where the children are now and with whom they are residing that the parties are bringing the proceedings in the correct Court (city)

II. Litigants’ Legal Capacity (legal right to commence court action):

who the parties are (in relationship to the children) names and ages of children the ages of the parties when the relationship began whether the parties lived common-law or were married date of marriage (if applicable) date and brief description of separation.

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III. Why this is an Emergency: To comply with the Family Law Rules, the party bringing the motion must first demonstrate that this matter is an emergency. Because Emergency Motions are exceptions to the general rule of providing notice of the motion to the other party, the court will first carefully assess whether the evidence set out in the affidavit provides sufficient grounds to warrant emergency relief. Meeting the Test of Emergency: "…an urgent motion within a court proceeding contemplates issues such as abduction, threats of harm, or dire financial circumstances…." Hood v Hood (2001) The affidavit in support of the Emergency Motion must be accurate, detailed and concise. The court will be looking for "red flags”, those circumstances in this case which meet the test of an emergency or hardship. Where a claim is being made for a restraining order (and temporary custody of children, if applicable) the presence of one or several of the following "red flags" will alert the court to circumstances that meet the test of an emergency:

a history of violence against a spouse, especially if frequency and severity are increasing;

a history of violence against others; a history of violation of prior restraining orders or other court orders; threats of violence, homicide, suicide or abduction of child(ren); monitoring of mail, telephone calls etc; surveillance of spouse/child(ren); stalking behaviour; unemployment; alcohol or drug dependency; depression /history of mental illness; withholding of children; victim expressing fear of repetition of violence; and/or abuser is in step-father role in this relationship.

It is usually the most recent event that gives rise to the emergency. Otherwise, the question is raised as to why the applicant did not file a motion when the emergency first occurred. If there has been some delay between the matter becoming an emergency, and the applicant filing the motion, the applicant should explain this delay in detail. In some circumstances, presenting information in reverse chronology, with the most recent incidents first, will produce a strong affidavit, as the judge’s attention will immediately be drawn to the events which caused the emergency. However, writing in this style is often very difficult for a lay person to do. It requires thought, planning and patience. These qualities are often not present when a woman has just experienced a traumatic event. For this reason, the best

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practice, for most people, is to write their affidavits in chronological order. It is the easiest way to keep information in a logical format. The most powerful statements (which will detail the most recent events and likely what has made the matter an emergency) will be at the end, and hopefully, will remain the strongest in the mind of the judge. It is important for the party writing the affidavit to indicate that she is afraid for her safety and/or the safety of the children. Where a claim is made to prohibit the children from being removed from the jurisdiction, and there is a risk of child abduction, any of the following "red flags" can alert the court to the urgency of the motion:

prior abductions; ties to a foreign jurisdiction (ie. ownership of property or other family living in another

region, province or country); a lack of ties to this jurisdiction (i.e. no ownership of property here, no family here etc); planning activities consistent with leaving the area; passports in the hands of the abuser wealth or poverty (i.e. the ability to live elsewhere or in contrast no reason to stay); transferable employment or no employment in this area; the opinion that the other spouse has little value to child; the belief that the child would be better off dead than with the other parent; the false belief that the child is being neglected; disagreement or noncompliance with court orders; a high level of anger and anxiety; and a child who is very young and vulnerable.

Set out the "red flag" incidents in chronological order.

The above lists are not exhaustive, but are provided to show the types of circumstances that the court will likely consider as meeting the test of emergency. The applicant must resist any temptation to overstate or exaggerate the facts in the affidavit. If there is a real emergency, there will be no need to exaggerate the facts. Any exaggeration will be subject to further scrutiny by the court, both at the return of the motion and throughout the court proceeding. The applicant should bear in mind that her credibility is crucial to having her story believed, both at the early stages and to the final outcome of the case. A simple statement of the facts is the best approach. As much detail as possible helps to make the story more believable. If the motion includes a claim for temporary custody, the applicant should inform the court of the usual pattern of parenting prior to separation and/or prior to filing the motion. The court

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will focus on the immediate needs of the children, and will want to determine whether the children's needs are being met in the current circumstances. The usual presumption is that both parents are entitled to custody. If the applicant is seeking a temporary custody order, she should explain why the other parent should not be awarded custody. If, for example, there was partner violence, the applicant should provide a link between the violence and the other parent's ability to act as a parent, as well as a link between the violence and the current circumstances which constitute an emergency. Although violence reflects on the capacity to parent, its presence alone is not sufficient to enable a court to make an emergency order. You must provide a link between the violence and the current circumstances to show that the current situation constitutes an emergency. The material must concentrate on the current circumstances to demonstrate that there is a crisis. When preparing affidavit material in support of the Emergency Motion, bear in mind the following:

a) The court will focus on the immediate needs of the children. In order to make a determination, the court will look at the historical pattern of parenting (the status quo). The court also wants to know who has the children at the time of the motion and where they are (de facto custody). Judges are reluctant to change the usual pattern of parenting if the needs of the children are already being met. An Emergency Motion for temporary custody should tell the court if the party has been a traditional homemaker and primary caregiver, or, if the client works outside the home, that she has historically carried out the majority of the parenting.

b) Put the best case forward at the beginning but resist the temptation to overstate the facts in the affidavit. Overstating the facts, as well as omitting important facts, will cause problems in the court proceeding and may damage credibility. It will certainly provide the other person's lawyer with material for cross-examination.

EXHIBITS The applicant may wish to attach copies of other documents to her affidavit as exhibits. The use of exhibits can help establish the applicant's credibility and may help to convince the court that there is an emergency. For example, if the other party has sent an email to the applicant threatening to take the children and leave the jurisdiction, the applicant should attach a copy to the affidavit. If the applicant has stated her belief that the other party may take the children and leave the jurisdiction on the basis of her belief in the other party's threats, proof of the threat helps to support the applicant's story. In some cases, corroborating documents may not exist, or may be difficult to get in the short timeframe of an Emergency Motion. However, it is good practice to use what documents are available. Corroborating exhibits give an affidavit strength and are often more convincing than an unsupported story.

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To attach an exhibit, the applicant should provide some background and refer to the document in the affidavit. For example, she may state that the other party has been threatening to take the children and leave the jurisdiction, and that the other party has confirmed this in an email. The applicant would then state, "A copy of this email, sent by the respondent on (date), is attached to this affidavit as Exhibit "A". A copy of the document must be attached to the affidavit and marked as follows, "This is exhibit "A" referred to in the affidavit of (applicant) sworn before me this (date)". The exhibit must be signed by the same commissioner for taking affidavits who signed the affidavit. Common Mistakes with Affidavits (In support of an Emergency Motion):

too much focus on background, especially if it paints a picture of a relatively normal relationship, even if there is some ongoing conflict

not enough focus on recent events and the emergency not enough detail regarding dates, when events occurred not enough detail to identify people (Who did what? Who said what? What is one

person’s relationship to the other(s)?) leaving out important facts (often communicated to the lawyer at FLIC, but not included

in the affidavit); the judge will rely only on the written material in dealing with the motion.

the affidavit is too brief the applicant has not stated, for example, that she fears for her safety and/or the safety

of her children she has not clearly stated why she is filing the motion or what negative consequences

she believes can be avoided by obtaining a court order

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1. The applicant will have to give an address for service on page one of the Application. This

does not have to be her own address. It could be the address of her parents, a friend, or a post office box. The applicant will be served at this address, so she must choose someone who will responsibly contact her if court documents show up. The applicant should only leave her address blank if she has a lawyer representing her, in which case the lawyer’s contact information will be listed on the court documents and can be used for service of documents.

2. Claims for divorce and property relief should be avoided when an Application is being

written at the same time as an Emergency Motion. These claims require the payment of a filing fee (which the applicant often does not have), and they also require the production of additional documents. It takes long enough to do an Emergency Motion without adding more work. It is better practice to amend the Application later (with the assistance of a lawyer) to claim such relief. Claims for extraordinary expenses should be avoided at this time.

3. The claims on page four of the Application (General) should be detailed. Many Applications

fail simply because they are too vague.

4. Although claiming restrictions on access is not advisable in an Emergency Motion, it is appropriate to do so in an Application. This practice will assist an applicant if a judge elects to make some sort of temporary access order while dealing with the Emergency Motion. It gives the judge an idea of what the applicant believes is safe for the children.

5. The restraining order claim in an Application should usually be worded in the same way as it

appears in the Emergency Motion. Please also note that if the applicant seeks to restrain someone other than a child's other parent, (i.e., step-parent or grandparent) the applicant will have to add that person as another respondent. The electronic version of the Application (General) can be modified to accommodate additional respondents. Such modified Application (General) forms have been accepted by the counter staff at the Oshawa Family Court with no difficulties.

6. Child support claims should always indicate the amount of child support requested and what

annual income supports that amount. If the applicant does not know the respondent’s annual income, the best practice is to make an educated guess and estimate a little on the high side. By including these figures, the respondent is given adequate notice of the support order sought. If the respondent then fails to answer the case, the applicant should have little difficulty obtaining judgment on the child support claim.

The section headed, “IMPORTANT FACTS SUPPORTING MY OTHER CLAIM(S)” is usually the section of the Application most poorly completed by an unrepresented person. Too often, it

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is left blank. Sometimes the litigant will attempt to incorporate by reference the facts sworn on the affidavit that accompanies the Emergency Motion. This is a mistake. The affidavit that supports the motion should be geared to obtaining the relief sought in the Notice of Motion. It should be focused and very detailed. The focus of the Application is different. It must support all of the claims made in the case. The points included will therefore usually be broader in scope than what will be found in the affidavit. The applicant will want to mention things like where the respondent works, where they have lived, what she does for a living, what her future plans are, and so on. These points might not be necessary in the affidavit. Due to time issues, an applicant will often not want to spend much of her time on this section of the Application (General). There is nothing wrong with summing up some of the facts to save time (if time is a big issue – if it is not, more detail tends to be better). Whereas a chronological telling of the applicant’s story is usually best for an affidavit, the same is not universally so for the Application. Sometimes, especially where time is an issue, one paragraph per claim will do. However, this can be a more difficult way to set out facts for litigants, unless they have guidance throughout. When in doubt, stick to setting out the facts chronologically.

If the applicant is unrepresented, the court staff will immediately type up the order. Then the court will have the Application, Notice of Motion (Without Notice), the Affidavit, and the Order, all served on the respondent. If a restraining order was granted, it will be in place before the respondent receives the court papers. If the applicant is represented, the lawyer will have to have the order typed and issued. The lawyer will arrange for someone to serve the respondent with the court documents. The client should never try to serve the documents.

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This form was introduced in March 2010 to provide information relevant to decisions relating to custody and access. It is also intended to screen non-parents to ensure that the judge is aware of any child protection or criminal history of those making a claim for custody or access. In completing this form, there will be some duplication, which the applicant may find frustrating; however, this is a required form. The counter-staff will refuse any Application for filing that does not also have a form 35.1. The form should be completed to the best of the applicant’s knowledge. As with any affidavit, do not overstate the facts and if the applicant’s information has come from another source, such as the respondent, she should say so. It is acceptable to take language from the applicant’s 14A Affidavit to complete this form. Doing so may save some time. Remind the applicant to place her initials in the space provided in question #11. If the applicant is an adoptive or biological parent of a child, they do not have to complete the final two pages of the form. This section is just for non-parents. Many women will be overwhelmed by the sheer volume of this form; however, much of the required information is contained in her other documents. Any sections that do not apply should be marked “N/A”.

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What happens when the temporary order is brought back before a judge within 14 days? A support worker should accompany the applicant to court. If the woman does not have a lawyer, she should see Duty Counsel, who will provide assistance. If the other party has not already done so, he may serve the applicant with his responding affidavit. When the motion comes back before the judge, both parties will have to attend in the courtroom in front of the judge who made the temporary order. The question the judge must consider is whether the temporary order should continue, or if it should be terminated. The judge may ask questions of either party in order to better understand the material that they filed. Procedure: Notice of Motion (Motion on Urgent Basis) with Notice

An Urgent Motion with Notice is prepared as set out above for Emergency Motions. All forms must be served on the respondent before the motion is heard. The most significant difference between a Motion With Notice and a Motion Without Notice, is that the respondent has an opportunity to respond and appear.

In some courts, a motion date must be obtained from the Court before the motion is served. The motion date is obtained from the Trial Coordinator at the court house. A person must specify that he/she is requesting a date for an urgent motion. Which Type of Motion Should Be Used – Emergency or Urgent Motion?

As a general rule, use Motions without Notice where there are grave safety issues either for the party or children i.e. motions for a restraining order, temporary custody, non-removal of a child from a jurisdiction and return of a child withheld by the other parent.

Use Motions with Notice when the situation is not an emergency, but where circumstances are pressing. These motions can also be used to request temporary exclusive possession of the home, or temporary support on grounds of hardship. These sorts of orders are difficult to obtain, and the client is advised to be represented by a lawyer before attempting to get such relief.

Where possible, a woman who has experienced abuse should always have a lawyer.

Women Who are in a Shelter for Women and Children

It is important to note that, as a shelter is often seen as a safe haven, the woman may not meet the test for an Emergency Motion, particularly if her child(ren) are very young and will not

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be out of her care. For women whose children are not in school or daycare, seeking legal representation and simply filing an Application (General), is likely to be her best tactic. It will allow her more time to prepare her case and to begin the recovery process. More time will also increase the chances that she will not make decisions in haste. She will likely have a better sense of the long term impact her decisions can have. It may also allow for a cooling off period before the commencement of access.

The applicant should also be aware that upon filing an Emergency Motion, she will have to face her abuser within two weeks. She must consider whether she is emotionally ready for that.

In the event that her abuser seeks an emergency order, she should contact a lawyer immediately. She should respect any order made but not at the risk of the child(ren)’s safety. If necessary, she should contact the local Children’s Aid Society. She should prepare to refute his claims with as much detail and evidence as possible. At this stage evidence may include such things as letters from doctors, care providers, Children’s Aid Society, etc.

Risks:

There are some risks to a party who files an Emergency Motion. One risk is that, if unsuccessful, it becomes even more difficult to get an emergency order if a new “emergency” occurs. Another risk is costs. The court may order costs against the party bringing the motion, if she is unsuccessful. If the motion has been argued in court, and if the other side has missed work or had to retain a lawyer, the party may be required to pay part or all of the other side’s legal costs to argue the motion. This risk, however, should not deter a woman who has experienced abuse if the facts warrant an Emergency Motion.

SUMMARY:

The judge cannot grant an emergency order unless the court is provided with the proper evidence. Emergency Motions frequently fail because insufficient evidence was provided. The following are common mistakes:

omission of some of the necessary background evidence which would give the court jurisdiction to make the order;

failure to link violence with the current situation to demonstrate that the current circumstances constitute an emergency;

bringing the Application in the wrong area (i.e. Brantford instead of Oshawa) The Emergency Motion is an important part of a proceeding in circumstances where there is abuse. It is important that the affidavit in support of an Emergency Motion be carefully crafted to provide the court with the information the court needs to ensure an emergency order is granted in appropriate circumstances.

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1. Attend FLIC for initial legal/procedural advice

2. Complete forms:

14 – Motion “Without Notice” 14A – Affidavit 8 Application – General 35.1 – Affidavit in Support of Claim for Custody and Access

3. Return to FLIC. The applicant’s documents will be reviewed by Duty Counsel who may

suggest revisions, approve the motion materials or determine that she has not met the test for emergency. If she has not met the test for emergency, she should inquire as to whether the case meets the test for urgency – a Motion WITH Notice.

4. If her motion materials are approved, they will be filed with the court and sent to the judge

reading written motions that day. It is critical that this process be completed as early in the day as possible, as this judge may have a very heavy case load.

5. She should receive her decision by the end of the same day. 6. The judge may grant her motion in whole or in part or may not grant her motion. The

judge may also include orders that s/he deems just. They will include directions for next steps and a date for the next court appearance.

7. If the motion is granted, in whole or in part, the respondent will be served with the

applicant’s material and with the court order. It is important that the applicant confirm that this has been done with the court.

8. The judge will set a court appearance within 14 days. Both parties will appear on this date.

At this time, the order may be continued, dismissed or replaced with a new order. The applicant has until two days prior to this date to submit an additional 14A - Affidavit updating the judge as to what has happened since the court order was made. Both parties must also file a 14C Confirmation form two days prior to their court date.

This may be the first time since the emergency or separation that the woman will

see her former partner. Not only can this produce anxiety and fear, but may also put her safety at risk. Her partner may not otherwise know where to find her. It is important that the police are informed of any safety issues and be notified if a restraining order has been issued. The police providing security at the courthouse do not receive this information from court officials and have no idea that a matter such as hers is taking place.