1. What might an ‘emergency’ be?

An ‘emergency’ application may be filed when there is a likelihood of danger to those involved - either one of the parties or a child. For example, the situation may be considered an emergency if:

  • there is a risk of violence or immediate harm to one of the parties or the child, OR 
  • the child is on the way to the airport and may be taken out of the country

A court officer will review your file as quickly as possible after filing and will ask a judge to decide whether your situation will be treated as an emergency.

In most cases, the other party has to be served with notice of the application.  This is called an ‘inter partes’ (between parties) proceeding.  For a regular or ‘non-emergency’ case, a specific period of time is set by the court rules for an applicant to serve notice on the other party. 

If your situation is treated as an emergency by the court, this means that you may get a court date more quickly than in other ‘non-emergency’ situations, but this is not guaranteed.  In most cases, judges want to hear from both sides of a case, but may shorten the amount of time that notice is given to the responding party, so the matter will come to court for a hearing more quickly.

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2. What can I do if I think my matter should be considered an emergency?

Each court site may have its own way of handling an emergency situation. Court staff will be able to give you information about the way to do things in their court. Generally, the party filing an ‘emergency’ application has to be prepared to:

  • give the full facts of the case so the judge has an understanding of as much of the situation as possible
  • give an address for the other party where the other party can be served quickly and
  • file a covering letter setting out:
    • all contact information for the other party and any information about whether the other party is available to come to court
    • a summary of the important facts of the case
    • the reasons why they believe the situation is an emergency
    • if the applicant is asking to proceed immediately, without the other party being notified of the proceeding, then they have to state why they believe the matter should proceed that way. Remember, though, that most court matters proceed with notice to all of the parties involved.   

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3. What does it mean if my application proceeds as an ‘emergency’?

In law, there are certain amounts of time set out in which the other party has to be given notice of the court proceeding, when it is proceeding on an inter partes basis (with notice to the other party). When you ask for your application to be treated as an emergency, this means you are asking for a judge to consider shortening the amount of notice the other party will get.

For example, if your issue would normally require that the other party get 10 clear days’ notice (meaning there will be at least 10 days between when they are served with notice and when the hearing takes place), a judge may decide to shorten this to less than 10 days, if the matter is serious enough that it needs to be heard more quickly than what the usual notice periods will allow. Only in extremely rare cases would you have a court hearing within a day or two of filing your application.

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4. Does the responding party always get to know about the proceeding before an order is made?

Usually, but there are exceptions.

In some very limited and special circumstances, a judge may allow an emergency matter to proceed ‘ex parte’. ‘Ex parte’ is a legal term that means that a court matter proceeds without the responding party knowing about, or being present during, the court hearing. 

This way of dealing with a case is only done in extreme circumstances, where grave danger exists that cannot be mended or prevented without the order being granted right away. It is important to remember that in almost every ex parte case, a judge will require:

  • another hearing date to be scheduled following the emergency court date, and
  • that the responding party be served with copies of the documents for the new date

The applicant may be responsible for arranging to have the other party served at that time.

An example of an ‘ex parte’ case may be where a party is trying to take a child out of the country, to a place from where the child may not be able to be returned.

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5. When will my emergency court date be?

A court officer will review your file as quickly as possible after filing and will ask a judge to decide whether your situation will be treated as an emergency.  If it is an emergency, the judge will give directions as to:

  • when the court date will be
  • when the responding party needs to be served with the court papers, or whether the matter can proceed without giving notice to the other party, and
  • anything else that is important

If your matter is treated as an emergency by the court, then the court date given will depend on:

  • how serious the situation is
  • how long it might take to have the responding party served (if required)
  • how soon a court date is available based on the court schedule

It is important to remember that you may ask for your matter to be treated as an emergency, but a judge may not agree with you. Court staff will advise you of the judge’s decision about whether your matter is going to proceed as an emergency.

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6. What matters are usually not considered emergencies?

Usually, child support or spousal support issues, on their own, will not be considered emergencies. Sometimes, there may be a number of issues that need to be dealt with, and the court will ask that the serious ones be heard first.

Cases are usually only heard on an ‘emergency’ basis if:

  • someone - either one of the parties or a child - is in immediate danger, or
  • there has been violence or a serious threat against someone, or
  • the other party has taken the child, and there is serious reason to believe that they may take the child out of the country

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7. How do I explain to the court that my situation might be an emergency?

If you are filing an application on an emergency basis, you should file a covering letter, in addition to your other court documents and your affidavit. Make sure that your covering letter briefly explains why you believe your matter should be treated as an emergency. This will allow the court officer screening your application to understand why your situation may be an emergency. If there is an Emergency Protection Order (EPO) in place, or criminal charges against the other party for violence against you or the children, this would be something to indicate in the covering letter.

Make sure your affidavit sets out, in detail, the facts of your case and why it is an emergency, so that a judge has:

  • information to make a decision about whether to shorten the notice period, and
  • evidence to determine what court order to put in place after your hearing.

As with your cover letter, if there is an EPO in place or criminal charges against the other party that relate to your court application, you will detail this in your affidavit, along with attaching a copy of the EPO or recognizance/undertaking for the criminal charges as an exhibit to your affidavit.

If you do not have a copy of the recognizance/undertaking against the other party, you can contact your Victim Services office for help in getting a copy of this document.

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8. What might an ‘urgent’ situation be?

An ‘urgent’ application may be filed when your situation is not an ‘emergency’, but may be time-sensitive, or needs to be heard quickly because of special circumstances. A judge or court officer will decide whether your situation will be treated on an urgent basis.

If your situation is treated as urgent by the court, this means that you may get a court date more quickly than in other ‘non-urgent’ situations, but this is not guaranteed. When your court date will be scheduled will depend on your particular situation. It also may depend on the court’s ability to fit an urgent hearing on the docket (court schedule) and how quickly the responding party can be served with the documents.

If you are filing an application on an urgent basis, you may want to file a covering letter, in addition to your other court documents and your affidavit. Make sure that your covering letter briefly explains why you believe your matter should be treated as urgent. This will allow the court officer screening your application to understand why your situation may be time-sensitive. 

Make sure your affidavit sets out, in detail, the facts of your case and why it is urgent, so that a judge has evidence to determine what court order to put in place after your hearing.

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9. Why do I have to file an affidavit with an urgent or emergency application?

An affidavit is a written statement of facts that is sworn or affirmed under oath as being the truth.

An affidavit is a way of giving evidence to the court. Most of the time, the judge hearing your court matter knows nothing about your situation or why you have come to court, except for what you include in your affidavit.

An affidavit is used to tell the court:

  • the factual story which has brought you to court to file your application
  • what you want specifically and the details of what order you would like the court to make
    • for example, the type of parenting arrangements, if you are applying to deal with this issue

Some important things to include in an affidavit for an urgent or emergency application are:

  • the nature of the emergency or urgency, in detail
    • what are the relevant facts that you believe makes this urgent or an emergency?
  • explain the situation leading up to you filing your application
  • state the facts as to why you want your application treated as urgent, or as an emergency
    • for example, a risk of violence, or immediate harm, or the child is on the way to the airport
  • if you are asking to have a court hearing by a certain date, explain when and the factual reasons why
  • details of the order you want the court to make
    • explain what you want the court to put into the court order to deal with your situation. Otherwise, all you are telling the court is your situation, without suggesting a solution
    • be specific – for example, if you are applying for custody, include what type of custody you want and for which child or children

If you are applying to change a previous court order, you should ALSO include in your affidavit:

  • the history of the legal proceedings
    • what order(s) currently exist between you and the other party? Provide the details of these orders, particularly the one you are looking to change.
  • the material change in circumstances
    • when you are applying to vary (change) an existing order, you have to show what has changed since the last order
      • the change must be substantial, not just a minor change
    • you must describe what has changed in your affidavit

For more information on affidavits, click here.

 

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