Cecily Zamora
A motion is a court procedure used to resolve an interim dispute within a legal case in Canada. It can be brought within a legal action or a legal application and is used to resolve procedural or substantive issues. Motions can be small and simple or large and complex. For example, a motion can be brought to obtain evidence, to stop a party from doing something, or to have a case ruled on. In the context of divorce proceedings, a motion allows one spouse to seek alimony or separation from the other. The person filing the motion is the moving party, and the other party is the responding party. To make a motion, one must fill out a Notice of Motion and Supporting Affidavit, explaining the issue, how they think it should be resolved, and the facts that support their point.
| Characteristics | Values |
|---|---|
| Definition | A motion is a court procedure used to resolve an interim dispute within a legal case. |
| Who can make a motion? | Any party in the case can make a motion. The person who makes the motion is called the "moving party". |
| When to make a motion? | A motion can be brought within a legal action or a legal application. It is usually made before a case conference. |
| Types of motions | Motions can be small and simple or large and complex. Examples include a motion to obtain evidence, to stop a party from doing something, or to have the case ruled on. There are also consent motions, motions with notice, motions without notice, and motions for temporary orders. |
| How to make a motion? | To make a motion, you need to fill out a Notice of Motion and a Supporting Affidavit. The form is available at the Small Claims Court office and online. The Notice of Motion and Supporting Affidavit must be served to all parties at least 7 days before the motion hearing and filed with the court at least 3 days before the hearing. |
| Time taken for a motion | Regular motions typically take one hour or less. Motions can also be resolved in writing without a hearing. Opposed motions usually take six months to resolve. |
| Cost of a motion | There is a fee to file a motion. The successful party on a motion usually recovers 50% of their legal fees from the losing party. |
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What You'll Learn
Motions in divorce proceedings
In Canada, a motion is a request to the court for a judge to make a decision about an issue that arises before or during a trial. Motions in divorce proceedings are legal proceedings that allow one spouse to seek alimony or separation from the other. They can be oral or written requests made to the court seeking an order, impacting various aspects of the litigation.
In divorce proceedings, motions can be used to address specific issues, such as seeking an order of support, which may include payments in exchange for ending financial obligations, or property division. A motion can also be brought to address issues related to child support or spousal support, and custody and access to children.
There are different types of motions in divorce proceedings. A motion with notice is the most common type, where the moving party serves the motion materials to the opposing party before requesting a judge's response. In limited circumstances, a motion without notice (ex-parte) can be requested, such as when providing notice is not reasonably possible or when there is an immediate danger of a child being removed from the province.
Consent motions are court orders that both parties agree on, and judges often attend to these first. Regular motions typically take one hour or less, and the judge will make a decision immediately or reserve their decision if they need more time to review the evidence.
It is important to understand the forms, processes, and timelines involved in divorce motions, as they can significantly impact the outcome of the case.
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Motions in commercial litigation
In Canada, a motion is a legal proceeding that allows one party to request a ruling on an issue in a case. Motions are commonly used in commercial litigation to resolve issues that arise before or during a trial. They can be powerful tools, but they are also tricky, as winning a motion could win the entire case, while losing one could result in a money judgment against the moving party.
In commercial litigation, motions typically follow a standard procedure. The moving party (plaintiff or defendant) serves their motion record, which outlines their request and the evidence supporting it, on the responding party. The responding party then provides their responding motion record, which may include a cross-motion for different relief. A court-ordered timetable is set, including a hearing date.
Written legal arguments, or factum documents, are submitted by both parties, outlining their positions by applying legal principles to the evidence. These documents, along with all other relevant materials, are reviewed by the judge before the court hearing. During the hearing, the parties argue their positions, and the judge makes a decision. If the motion is not opposed, the judge typically rules immediately. However, if the motion is opposed, a written decision is usually issued within three months, and it can take up to six months or more to resolve the motion, depending on its complexity and urgency.
In Ontario, the successful party in a motion usually recovers 50% of their legal fees from the losing party, although costs are ultimately at the court's discretion. It is important to note that in Small Claims Court, motions should only be brought if they will significantly impact the lawsuit, as the intention is to keep these proceedings fast and straightforward.
While the process described above outlines the typical steps for a motion in commercial litigation in Canada, specific rules and procedures may vary depending on the jurisdiction and the specific court or division handling the case. For example, in New York's Commercial Division, there are specific rules regarding exhibits, word counts for briefs and affidavits, and stipulations for early resolution or adjournment.
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Motions in civil and family appeals
In civil and family appeals, motions are requests made to the court for a judge to decide on an issue that has arisen before or during a trial. Motions can be brought by either party and must adhere to specific rules and procedures. In the Court of Appeal for Ontario, motions can be brought before a single judge or a panel of three judges, depending on the circumstances.
When bringing a motion, it is essential to review the applicable rules and practice directions, which outline the "when, where, what, and how" of the process. These rules specify what must be filed, what must be included in the filings, and the required timing of submissions. For example, when bringing a motion to a single judge, the moving party must serve their notice of motion on all other parties at least seven business days before the hearing.
In civil and family appeals, motions can be made for various reasons. One common type of motion is to seek leave to appeal a decision, which is governed by specific rules and procedures. Motions can also be brought to introduce "fresh" or "new" evidence that was not presented at the trial but is relevant to the case, particularly if it concerns the child's best interests in family law matters.
In family law, motions are also used to seek temporary orders on urgent matters, such as a child's safety or basic living conditions. These motions can be brought before or after a case conference, depending on the urgency of the situation. Regular motions, on the other hand, typically follow a case conference and adhere to standard procedures, including the submission of relevant forms and affidavits.
It is important to note that bringing unsuccessful, frivolous, or vexatious motions may result in costs being awarded against the moving party. Therefore, careful consideration and compliance with the applicable rules and procedures are essential when bringing motions in civil and family appeals.
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Motions in Small Claims Court
In Canada, a motion is a legal proceeding that allows one party to request a judge to make a decision or issue an order about an issue that has arisen before or during a trial. Motions are typically used to resolve issues that need to be addressed before the trial can continue.
Small Claims Court in Ontario, Canada, is intended to be fast and straightforward. Therefore, motions should only be brought if they will make a difference to the lawsuit. Before bringing a motion, parties should try to resolve the issue with the other side or see if they will consent to the motion without needing a hearing.
To make a motion in Small Claims Court, you need to fill out a Notice of Motion and Supporting Affidavit. This involves providing the names of the parties, the type of motion, an explanation of why the motion is being made, and the facts that support it. The affidavit must be sworn in front of a commissioner for taking affidavits, such as a lawyer, and then filed at the Small Claims Court office.
There are different types of motions that can be brought in Small Claims Court, including motions with notice, motions without notice (ex-parte), and consent motions. Motions with notice are the most common type, where motion materials are served on the opposing party before requesting a judge's response. Motions without notice are granted in limited circumstances, such as when providing notice is not reasonably possible or when there is an immediate danger involved. Consent motions are court orders that both parties agree on.
Additionally, there is a type of motion called a "motion in writing for assessment of damages," which can be made by the plaintiff when all defendants have failed to file a defence and have been noted in default. In this case, the plaintiff does not need to attend court, and the judge makes a decision based on the documents filed.
It is important to note that there is a fee associated with filing a motion in Small Claims Court, and the final decision on whether to grant the motion rests with the judge.
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Types of motions
A motion is a court procedure used to resolve an interim dispute within a legal case. It is not a separate proceeding but a procedure to seek relief within the framework of an existing or impending action. Motions can be small and simple or large and complex. They can be used to obtain evidence, prevent a party from doing something, or have the case ruled on.
There are several types of motions:
Motions on Notice
The most common type of motion, where the moving party serves the motion materials to the opposing party before requesting a judge's response. The moving party must serve Form 14 (Notice of Motion) and Form 14A (Affidavit) on the other parties no later than six days before the motion and file the documents no later than four days before the motion.
Motions Without Notice (Ex-Parte)
These motions are granted in limited circumstances, such as when providing notice is unnecessary or not reasonably possible (e.g., the ex-spouse cannot be located), when there is an immediate danger of a child being removed from the province, or when serving notice could create a risk of harm. The court will review the motion materials and an additional affidavit explaining why notice was not provided before deciding whether to hear the motion.
Consent Motions
A court order that both parties agree on.
Procedural, Uncomplicated, or Unopposed Motions (14Bs)
These are motions where both parties agree to ask the court for an order on consent for different procedural orders. An example might be that both parties agree to allow a party to file a document late. For these motions, you complete Form 14B instead of Form 14 (Notice of Motion) and Form 14A (Affidavit).
Motions for a Temporary Order
The moving party must file several documents, including Form 14 (Notice of Motion), Form 14A (Affidavit), and Form 13 (Financial Statement).
Motions in Writing for Assessment of Damages
This type of motion can be made by the plaintiff when all defendants have failed to file a defence and have been noted in default. For this motion, the plaintiff does not have to attend court, and the judge makes a decision based on the written materials provided.
Motions to Preserve Rights in Pending Litigation
These motions are made to determine an issue (a point of law) relevant to the proceeding before the action proceeds to trial.
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Frequently asked questions
A motion is a court procedure used to resolve an interim dispute within a legal case. It can be brought within a legal action or a legal application.
Motions are usually brought after a case conference, but there are some motions that can be brought before a case conference, such as a motion based on an agreement or an urgent motion.
Examples of urgent motions include a child's safety being at immediate risk or where an order is necessary to provide basic living conditions to a child.
To bring a motion, you need to fill out a Notice of Motion and Supporting Affidavit. The form is available at the Small Claims Court office and online. You must then file the Notice of Motion and Supporting Affidavit at the Small Claims Court office.
The staff at the court office will give you a time and date to appear in front of the judge. The judge will either make a decision immediately or reserve their decision for a later time.
