When you have applied for a divorce, it may take a while for the judge to come up with the final decree. During this period, you or your former spouse may want some things changed. Though the court requires both parties to try to solve their issues privately, this may not work out, especially if you had a contested divorce. This can only be executed through a court order by making a motion. Any party has the right to file a motion, not unless the judge has stated otherwise. You can either make temporary order motion or unopposed motion for the judge to give some guidance on how things should be handled with the divorce is ongoing.
When Can I Make A Motion?
A motion is where you request the judge to make decisions on specific issues before a trial. The most common motion is to make a motion for a temporary order.
Temporary Order motion: This is relevant when there are issues such as child support or custody that needs to be sorted out before the divorce is finalized. The custodial parent may be in dire need of financial support to cater to the children’s best interests. If there is no agreement on how to solve this, a temporary order motion may help. When making a motion, you have to ensure that the case conference for the matter in hand has been completed. This is unless there arises a matter of urgency. In such a case, you can bring up an urgent motion at any time of the case. This can also be referred to as:
An ex parte motion: This kind of motion doesn’t require you to give you partner notice. It’s even possible to have one before the case starts. You may make an urgent motion when:
- Your situation is urgent such as it would harm to wait to bring up a motion after a case conference. For instance, you may note that your children are exposed to serious harm by your partner
- When faced with undue hardship. For instance, the bank may be on your toes to take legal action to force you clear your outstanding debts
- It’s in the best interest of justice to have your motion before a case conference. Your spouse may want to move to another country with the children and you may never have a chance to see them again.
To file a motion procedurally, you may consider looking for best divorce lawyer in Toronto. A good lawyer will help you have some insight of how to handle the matters while making a motion. In some cases, you may be required to attend at least one conference before being granted permission to file a temporary order motion, except for the exception above.
How To File A Motion
Before you decide on whether to file a motion, it’s better to consider the fact that the judge may deem the motion irrelevant. In such a case, the judge may force you to pay any cost incurred by the other party regarding your motion. However, if you find it necessary, below is a summary of how you make a motion:
- Contact the relevant court or your motion date: You need to schedule the motion by checking on the relevant days that the court hears such motions. For example, if you reside in Toronto and your motion is perhaps going to take over an hour, the motion must have a scheduled date with the Family Court Office. You may also consider checking whether your spouse will be available on the said date. You don’t have to attend in person; you may request that your motion be held through a video conference.
- Fill out relevant motion forms: You should make sure to fill out these forms correctly. If not sure of what to do, you may request the help of a family lawyer. This is because if you’re making a motion for a temporary order for child support, you need to know the right form to fill with the updated financial statements.
- Serve your filled forms: The filled out forms should reach the court and your spouse within the stipulated time. It should take approximately six business days to serve your spouse or four business days to reach the court before the motion date.
- You should make sure to confirm that you will attend the motion. You may also find ways to make your spouse confirm they will attend. This could be through your lawyer or a one on one communication if allowed.
- Attend the motion hearing: This is not mandatory. If you had requested the court to make their decisions based on written material, you don’t have to attend the hearing
After the hearing, the judge will make a decision immediately or take some time. The decision will be based on the information provided on the motion forms. To understand more about how to file a motion, you may seek help from an experienced family lawyer.