• by Christina Hinds
Originally published in the OFLM 2023-7 edition
Overview
“When problem solving takes precedence over family law litigation, the potential for a reasonable and affordable outcome multiplies exponentially. Conversely, when the first step in the litigation is a race to the Courthouse on reactive and incomplete information, the potential for a reasonable and affordable outcome plummets.” (Justice McGee)
Introduction
The threshold for urgency was set out by Justice Wildman in Rosen v. Rosen (2005 CanLII 480) nearly 20 years ago. It is also well-established that an urgent motion within a court proceeding contemplates issues such as abduction, threats of harm, or dire financial circumstances.
Rosen provides that prior to bringing an urgent motion:
- The first step should be an inquiry as to when case conference dates are available to deal with the matter. If there is a particularly pressing issue, the trial coordinator should be made aware of this, as there may be times that could be made available for cases of urgency to avoid a motion. (para. 7)
- The next step prior to bringing a motion should be to engage in settlement discussions to try to obtain a resolution of the pressing matters until the case conference date. The focus is on achieving a short-term agreement to get the parties through to the case conference date without a motion, rather than necessarily achieving a final resolution on all issues in the case. (para. 9)
Justice Wildman stated that, absent canvassing case conference dates and showing attempts to resolve matters until the available case conference date, “it is difficult to understand how urgency can be established.” (para. 12)
On the spirit of Rosen, Kaur v. Singh (2023 ONSC 2116) is a cost decision by Justice McGee following an urgent motion that serves as a reminder for lawyers to carefully assess whether an urgent motion is warranted and meets the Rosen threshold for urgency.
In Kaur, the father brought an urgent motion on March 20, 2023 seeking, among other relief, that the parties’ three-year-old child be returned to Brampton and that the mother be prohibited from relocating with the child outside of Brampton without his consent.
After reviewing the father’s urgent motion materials, Justice McGee provided a timeline for the mother to respond and scheduled the matter to be returned before her on March 24, 2023.
The contrast to the father’s “alarming” motion materials
The father stated that the mother relocated from Brampton, Peel Region to Scarborough with the child without informing him. He swore in his affidavit that he was not aware “in any way or form” that the mother removed and relocated with the child to another city. He stated that when he went to the daycare to pick up the child, he was told that the child had not been at daycare all week. He then contacted his lawyer and learned that the mother had moved to Scarborough with the child a week prior.
Justice McGee referred to the facts as set out in the father’s motion materials as “alarming”. However, the mother’s materials painted a very different picture.
The mother explained that she had been living in a shelter with the child since separation and had been trying to secure subsidized housing. She had already turned down two prior subsidized housing options because of the distance from Peel Region and the wait list for subsidized housing in Peel Region was 10 to 12 years.
When she was offered housing in Scarborough, she accepted. She informed her lawyer who sent an email to the father’s lawyer on February 27, 2023 advising that the mother had accepted subsidized housing in Scarborough and proposed a gradual adjustment to the father’s parenting time as the child adjusted to the move.
Upon learning of the father’s concerns with respect to the move and change in the parenting schedule, the mother’s counsel proposed an early case conference. The father did not respond to this proposal and instead filed urgent motion materials.
Dismissal of the father’s “urgent” motion
After reviewing the mother’s responding materials, Justice McGee dismissed the father’s motion. Her Honour reviewed Rule 14(4.2) of the Family Law Rules and the test for urgency set out by Justice Wildman in Rosen v. Rosen.
Justice McGee accepted that the mother had no other option but to accept subsidized housing in Scarborough. She also accepted that the father was not aware that the mother had moved until he went to the daycare on March 10, 2023 to pick up his son and that this would have been shocking. However, once the father contacted his lawyer, he made no attempt to “problem solve the impasse” and instead interpreted the mother’s move “as proof that his son was being deliberately removed from his life”.
This was a fear that Justice McGee determined was “not objectively valid” given the circumstances of the move, the fact that the mother had not suspended the father’s parenting time but rather made a proposal with respect to parenting time in light of the move, and that she proposed attendance at an early case conference.
While the mother was not following the interim parenting agreement, an urgent motion was not warranted.
A caution to family lawyers and parties
Justice McGee stated that the threshold for urgency in family law matters remains high and for good reason:
When problem solving takes precedence over family law litigation, the potential for a reasonable and affordable outcome multiplies exponentially. Conversely, when the first step in the litigation is a race to the Courthouse on reactive and incomplete information, the potential for a reasonable and affordable outcome plummets.
Her Honour acknowledged that family law matters, especially those dealing with parenting issues, are “painful and complicated”, “emotions run high” and “events are easily misconstrued in the fog of the war”.
In Rosen, Justice Wildman also made note of the “nasty affidavit war” that accompanies the filing of a motion.
Justice McGee reiterated that bringing a motion before a case conference that does not meet the urgency threshold is “unreasonable litigation conduct”. Further, it will attract an enhanced award of costs in order to discourage and sanction inappropriate behaviour by litigants – one of the four purposes of costs awards as set out by the Ontario Court of Appeal in Mattina v. Mattina (2018 ONCA 867) and to ensure that cases are dealt with justly as required under subrule 2 (2) of the Family Law Rules.
Thus, Kaur v. Singh is a caution and a reminder that bringing urgent motions is only warranted when a child’s circumstances meet the Rosen threshold.
Lawyers should therefore advise clients to engage in a reasonable and child-focused approach to resolving parenting issues and be careful not to equate a client’s discontent or panic with urgency.
Practical Tips learned from Rosen and Kaur v. Singh
- Prior to bringing an urgent motion, first inquire as to the available case conference date(s). In Toronto, there is also the option of scheduling a To Be Spoken to Date to obtain an urgent case conference date.
- Do not “assume” that there are no case conference dates available.
- Promptly notify your client of any communication from other parties.
- Remember that the focus of parenting issues is the child. Guide your client to make decisions and act in a manner that is in the child(ren)’s best interests.