The first question you have to ask first is whether you need an emergency temporary custody order. Judges do not like making custody orders, especially on incomplete evidence and on a rushed basis unless the order is necessary to protect the health and welfare of the child. If the order is not necessary to do that, then the judge will want you to have a case conference first. Of course, that is if you really need to be in court. There are alternatives to court that are often better able to address children’s issues than court unless there are issues of abuse, mental health, substance abuse or a very difficult parent. You can learn more about the alternatives to court in this podcast on this webpage, or this video.
If you do have to go to court, there are a large number of things you must do, and correctly. Your best chance to get this right, and avoid having a judge refuse your request, is to get a good family lawyer to help you. (For more reasons why you should hire a family lawyer, see this webpage. If you cannot hire a lawyer, you should get a copy of this best-selling book on the basics of Ontario Family Law in paperback or by immediate download as a $9.99 Kindle eBook, Kobo eBook or iBook for your iPad or iPhone. It describes the Family Court Process and custody access issue, to help you. However, if that is not possible, here is the information about how to get the Order:
1. First you should understand the legal meaning of the term “custody.” It may be different than you think. Listen to this podcast and read this webpage.
2. You need to start a full-blown court proceeding to get any type of Order. To understand how to start a court proceeding, listen to this podcast. There is a video on family court proceedings below.
3. You must file a Form 8 Application General that sets out all the orders you want the court to make and the facts that give the court the legal authority to make those orders. There are certain facts that are important when judges decide on any parenting issue, including custody, and many facts that judges do not care about. It is important to put the right facts in your Application, and in your affidavits, so listen to this podcast and read this webpage. They both explain how judges decide who gets custody.
4. Since you are claiming custody, you must also complete, and swear or affirm before a commissioner of oaths (these are in law offices and at the court), a Form 35.1 Affidavit which sets out several facts that judges want to know regarding parenting. The Children’s Law Reform Act says judges cannot make any order about parenting unless the party seeking the order has properly completed and filed a Form 35.1 affidavit.
5. If you are asking for any form of support you must also complete a Form 13 Financial statement (again this has to be sworn or affirmed). If you are asking for support and making property claims, you have to fill out a form 13.1 Financial Statement. (Note that only the Superior Court of Justice has jurisdiction to deal with property claims.) Your financial statement must attach 3 years of Notices of Assessment from the Canada Revenue Agency. If you do not have them, you must get them through the CRA’s website.
6. You have to take all of the above documents to the court to have them “issued.” The court will not allow you to issue the documents if there are errors or they are incomplete.
7. You must create a continuing record volume for the court. For information about doing that, see this link.
8. At the time that you are issuing your Application, you should ask the court when you can have a case conference. You should book the first date. The court will give you a Conference Notice, that you must add to all the other documents and serve on the other parent.
9. After issuing the documents, you must have someone, other than you, serve the documents on your spouse and anyone else who can claim to have been an active parent of the child. Service usually means identifying the person being served and handing them the documents to be served. The person must complete an affidavit of service, attesting that he or she served the documents properly (another commissioned document). Then you must file the documents with the court.
10. After all of that, you must bring a motion for temporary custody. Unless there is a compelling reason why the other parent(s) should not be served with your motion material (because they would do something bad to the child before the court had an opportunity to hear the motion) you must give them at least 4 business days notice. To get a court date, you have to go to the family court service counter and ask what dates the court has available to hear your motion.
11. You must then complete a Form 14 Notice of Motion that sets out the precise order you are asking the court to make.
12. You must also write, and swear, a Form 14A affidavit that sets out your version of the facts. (Refer to the podcast and website listed above to know what facts are important.) As you have to swear or affirm that the document is true, it is very important that the facts be accurate. It is also important that the affidavit is written in a way that is clear and compelling to a judge. To hear about what judges consider good parenting, listen to this podcast. The affidavit must also make it clear why you cannot wait until the court can have a case conference to discuss the issues on your motion. One thing you must include is when the first case conference date is available from the court and also why you cannot wait until then. The affidavit is your “evidence” on the motion. You do not get to tell the judge any additional facts on the hearing of the motion. The motion is not a trial, so no one testifies in court. All the facts that the judge needs must be in the affidavits.
13. If you want other people to give their evidence on your motion, they have to swear their own affidavits. To learn more about getting your story in front of a judge through evidence, which is the only way to do it, watch the video below has tips from a Family Court Judge.
14. You must serve the Notice of Motion and all of the other affidavits on the other parties that you have named in your Application. Unless you are trying to bring your motion without notice to the other parties, you must serve them at least 4 business days before.
15. The other parties in your court proceeding have the right to file their own affidavit in response to yours. After they do that, you have the right to file an affidavit that responds to the new facts or issues in the other party’s affidavits. However, you cannot raise any new issues in your “reply affidavit.”
16. Two days before the set motion date, before 2:00 p.m., you must file a form 14C to tell the court and the judge whether your motion is going ahead as scheduled or not. Most courts let you file your 14C by faxing it to a special fax number, but the 14C is the ONLY document you can file that way.
17. Then you show up on the day of the motion and you explain to the judge why the law says you should get your custody order (and why you could not wait for the case conference). The judge usually will have had the opportunity to read all the affidavits, so you will only want to mention the most important facts and tell the judge where to read about them in all the materials that were filed (using specific tab and page numbers if possible). Keep in mind that motions are supposed to be argued in less than an hour total. So, you should plan on speaking to the judge for no more than 20 minutes at first. That includes the time that the judge asks you questions. The other party will get about the same amount of time. Then you will get to speak to the judge about any new facts or issues that the other party spoke about that you did not mention in your first twenty minutes. However, this is not a time to repeat your points. The judge’s time is precious and there are likely other cases waiting. So you do not want to be repetitive or do anything else to upset the judge. To find out what gets judges upset, and could make them decide against you.
18. The judge will then either decide your case on the spot or “reserve” which means the judge will decide the case later and send a written decision to you. The decision is different from a formal court order. If you need a formal court order, that is another process… which can be the topic of another post. Or you read about it in the book that I mentioned above and pictured below.
19. If the judge decides against you or decides the motion could have waited until after a case conference, then the judge will likely order you to pay the legal fees and other costs of the other party. This is where not using a lawyer can really cost you. If you do not get your own lawyer, you can end up paying the cost of your ex-spouse’s lawyer if you lose. All the court forms are found here. Also, I did not quote the precise rules that set out all of the above, but you can find the Family Law Rules here.
You can get a lot more information about Ontario Family Law issues, including a comprehensive explanation of parenting cases (parenting time and decision making), child support, spousal support, property division, and most other common family law issues by downloading this $9.99 Kindle eBook, Kobo eBook, or iBook for your iPad or iPhone or ordering it from Amazon as a paperback. But to understand how the law works precisely in your situation, it is always best to speak to a good Family Law Lawyer.
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