Emergency Custody in Ontario: How to File an Urgent Motion

 

When a child’s safety, well-being, or location is at risk, the standard timelines of the Ontario family court system—which can often take months—are simply not sufficient. In these moments of crisis, the law provides a “fast-track” known as an Emergency Motion or an Urgent Motion.

However, obtaining an emergency order is a rigorous legal uphill battle. Ontario courts are protective of procedural fairness; they do not grant orders lightly without hearing from both sides unless the situation is truly dire. This guide provides a deep dive into the mechanics of Rule 14(4.2), the high evidentiary threshold required, and the exact steps to take when you need the law to move at the speed of an emergency.

1. Defining “Urgency” Under Ontario Law

Before drafting a single form, you must understand how a judge defines an emergency. In the Ontario Superior Court of Justice and the Ontario Court of Justice, “urgency” is not defined by a parent’s anxiety or a sudden disagreement over a holiday schedule.

Under Rule 14(4.2) of the Family Law Rules, a party can only bring a motion before a Case Conference has been held if there is a situation of “urgency or hardship.”

The Three Pillars of Legal Urgency

1. Imminent Risk of Physical Harm: This includes evidence of physical abuse, substance abuse in the presence of the child, or being in an environment of domestic violence.
2. Risk of Abduction: A “flight risk” scenario where one parent has threatened to take the child out of the jurisdiction (Ontario) or out of the country, particularly to a non-Hague Convention country.
3. The “Status Quo” Breach: While less common, if a parent has unilaterally moved a child or is withholding a child in a way that causes immediate psychological trauma or interrupts essential medical care, the court may intervene.

2. Procedural Pathways: With or Without Notice?

There are two ways to bring an emergency motion in Ontario. Choosing the wrong one can lead to your motion being “adjourned” (delayed), which is the last thing you want in a crisis.

a. Urgent Motion with Notice

This is the preferred route for the court. You serve the other parent with your moving papers, but the timeline is compressed. Instead of the standard 6+ days’ notice, you might give 24 or 48 hours. This allows the other parent a brief window to respond, maintaining the principle of “natural justice.”

b. Motion Without Notice (Ex Parte)

Reserved for the most extreme cases. You go before a judge without the other parent even knowing.

• When to use it: If telling the other parent about the motion would likely cause them to disappear with the child, or if the child is in immediate physical danger.
• The “Full and Frank Disclosure” Rule: Because the other side isn’t there to defend themselves, you have a heightened duty to tell the judge everything—including facts that might hurt your case. If you hide information, the judge can set aside your order later and order you to pay the other side’s legal costs.

3. Required Documentation: The Paperwork of a Crisis

To file your motion, you must navigate the Justice Services Online portal or go to the court filing counter. You will need:

Form 14: Notice of Motion

This is your formal “ask.” You must be specific. Instead of saying “I want custody,” you should use current legal terminology:

“The Moving Party seeks an Interim Order for sole decision-making responsibility and primary residence of the child, [Name], born [Date].”

Form 14A: The Affidavit (Your Evidence)

This is the most important document. It is your testimony under oath. To make this “demonstrably true and verifiable”, avoid inflammatory language like “He is a monster.” Instead, use factual observations:

• “On October 12, 2025, the Respondent sent a text message stating…”
• “Attached as Exhibit A is the police report from the wellness check on…”

The Emergency Motion Request Form

Most jurisdictions, such as the Toronto Family Court or Peel Region (Brampton), have a specific “triage” form. A judge reviews this one-page summary first to decide if you are allowed to even argue your motion. If they check “Not Urgent,” your motion is bumped to a regular timeline.

4. The Role of the “Best Interests of the Child”

In Ontario, the Children’s Law Reform Act (CLRA) governs these decisions. Even in an emergency, the judge’s “North Star” is the Best Interests of the Child. Under Section 24 of the CLRA, the judge looks at:

• The child’s needs and stage of development.
• The stability of the proposed home environment.
• The history of care for the child.
• Any plans proposed for the child’s care and upbringing.
• The child’s views and preferences (depending on age and maturity).

Addressing Family Violence

Ontario law now places significant weight on family violence. If your emergency motion is based on abuse, you must detail the nature, frequency, and impact of that violence on the child and the child’s primary caregiver.

5. What Happens Once the Order is Granted?

If you are successful, the judge will sign an Interim Order. It is important to remember that this is temporary.

1. The Return Date: If you obtained an order without notice, the court will set a “Return Date” (usually within 7 to 14 days). This is the hearing where the other parent gets to tell their side.
2. Enforcement: An order is just a piece of paper unless it is enforceable. If there is a risk of abduction, you may need a Police Enforcement Clause (under Section 36 of the CLRA), which authorizes the police to assist in locating and returning the child.

6. Common Pitfalls That Tank Emergency Motions

As a family lawyer who understands the legal landscape, I see many self-represented litigants or unprepared parties fail because of these common errors:

• Waiting Too Long: If you wait three weeks after an incident to file an “emergency” motion, the judge will likely ask, “If it was an emergency, why did you wait?”
• Lack of Admissible Evidence: Screenshots without dates, hearsay (what a neighbor said she heard), and vague allegations won’t suffice.
• The “Self-Help” Trap: Taking the child and hiding them before getting a court order can often backfire, making you look like the parent who is unwilling to support the child’s relationship with the other parent.

7. Financial Implications: Cost Awards

In Ontario family law, the “loser pays” (indemnity). If you bring an urgent motion that the judge deems was not actually urgent or was brought in bad faith to “get a leg up” in litigation, you may be ordered to pay the other parent’s legal fees immediately. This can range from $2,000 to $10,000+ just for a single motion.

8. Why Professional Representation is Non-Negotiable

The LSO Rules of Professional Conduct ensure that lawyers act as officers of the court. When emotions are high, a lawyer acts as the “objective filter” that the court requires.

How a Lawyer adds value to an Emergency Motion:

• Strategic Drafting: We know which facts a judge needs to see in an affidavit to trigger an immediate order.
• Knowledge of Local Practice Directions: Every courthouse in Ontario (361 University Ave vs. 47 Sheppard vs. Milton) has slightly different rules for how they accept emergency filings.
• Case Law Research: Utilizing precedents regarding the “Status Quo” to bolster your argument.

9. Frequently Asked Questions (FAQ)

How long does it take to get an emergency custody order in Ontario?

In true life-and-death scenarios, an order can sometimes be obtained within 24 to 48 hours. However, the typical “urgent” motion usually takes 3 to 5 business days to be heard by a judge.

Can I file for emergency custody without a lawyer?

Yes, you can, but the technical requirements of the Family Law Rules are strict. A failure to include a mandatory form or an improperly commissioned affidavit can lead to your materials being rejected by the court clerk.

What is the difference between “Custody” and “Decision-Making Responsibility”?

As of 2021, the Divorce Act and the CLRA changed their language. “Custody” is now Decision-Making Responsibility, and “Access” is now Parenting Time. When filing your motion, using the updated terminology shows the court you are informed and serious.

Summary for Parents in Crisis

If you are facing a situation where your child’s safety is at risk, do not wait. The Ontario legal system has the tools to protect your family, but those tools must be used correctly. Document everything, remain factual, and seek professional legal counsel immediately to ensure your Form 14A Affidavit meets the “Urgency” test.

Need Immediate Legal Assistance?

Our firm specializes in high-conflict family law matters and urgent court interventions across Ontario. We understand that in an emergency, time is your most valuable asset.

Contact us today to schedule an emergency consultation. Our team will review your situation, assess the “urgency” threshold, and help you take the necessary steps to protect your children.

DISCLAIMER: The information provided in this blog is for general informational purposes only and does not constitute legal advice. No attorney-client relationship is established through this writing. You should consult with a qualified attorney for advice tailored to your specific situation. The lawyer and their firm disclaim any liability arising from reliance on this blog or any other content on this website.