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What is an Emergency Custody Order?

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How Can an Emergency Custody Order Help You?

In many cases, divorce can be a messy and emotional process. When minor children are involved, it can become even more complex. If you and your spouse cannot agree on a parenting plan, you may face a lengthy wait while the family court decides the outcome of your case. You may be able to file a motion for a temporary custody order to ensure your child has a stable plan in place for their care until the court makes its final ruling.

However, even a temporary custody order can take time. What if you have immediate concerns about the welfare or safety of your child? In these situations, an emergency custody motion can be brought to protect their well-being until the court can examine the situation and determine the appropriate course of action. An experienced Ontario family law lawyer can explain the situations where an emergency custody motion may be brought and what to expect if an emergency order is granted.

What is an Ex Parte or Emergency Motion?

You must follow specific procedures when bringing a motion in Ontario family court. In the majority of cases, you need to fill out the appropriate forms and serve the other party in your case with the completed forms at least six days before your motion date, and you must also file your materials with the court in advance of your motion. You then need to attend a hearing where you present your motion and evidence. The other side gets a chance to respond, and finally, the judge makes a decision on the motion.

As you can imagine, completing this entire process can take some time, and the other side is aware of what is occurring well before the hearing date. An ex parte motion, also known a motion “without notice”, is an emergency motion brought without notifying the other party or giving them a chance to tell their side of the story to the court. Because it cuts the other party out from the regular legal process, an ex parte motion is only allowed under very limited emergency circumstances, and any order made by the court is typically temporary.

Under What Circumstances Can You Request an Emergency Custody Order?

An emergency custody order should only be used in urgent circumstances where another type of order would not be appropriate. You must be prepared to present sufficient evidence to support your emergency motion, such as proof of a history of domestic abuse, threats, and/or drug abuse by the other party that could indicate a danger to your child. There are three common situations where the court will approve an emergency custody order:

  • The other party poses an immediate threat to the safety and health of the child.
  • The child is in imminent danger of permanent removal from the province or country by the other party.
  • In the case of an ex parte motion, where serving the other party with a notice of motion could risk harm or serious consequences to you or your child.

It is critical to consult with a knowledgeable child custody lawyer before filing an emergency motion. If the judge believes your motion was unjustified, you may be ordered to pay the other party’s legal costs related to the emergency motion.

What is the Effect of an Emergency Custody Order in Ontario?

If the emergency custody order is granted, your child will be placed into your care for the duration of the order. During this period, you will have both sole parenting time and decision-making responsibilities. If the other party violates the terms of the custody order, they could face criminal charges or be charged with contempt of court.

Emergency custody orders are typically temporary. You will likely need to attend another hearing in a few weeks, where the court revisits the order and determines the best course of action going forward. The other party will be able to present their case at this later hearing, and the court will consider their evidence and arguments. Following this hearing, the court will decide whether to extend the emergency custody order or set up a new parenting plan.

Does the Court’s Approval of Your Emergency Custody Order Mean You Will Automatically Get Permanent Sole Decision-making Responsibilities for Your Child?

Emergency custody orders are used to ensure a child’s safety until the court can get more information on the situation. The court’s ruling regarding permanent custody orders may differ based on the facts in the case and what the court believes is in the child’s best interests. After an emergency custody order has been granted, the other parent has the opportunity to present their side of the story to the court and may be able to regain custody of their child on a temporary or long-term basis.

Generally, the court prefers to have both parents strongly involved in the child’s life unless significant evidence argues against the creation of some type of joint parenting plan. If you have concerns about how the court makes decisions on parenting plans or whether the other party is fit to raise a child, your lawyer can address all your questions and help you bring valid issues to the court’s attention.

What Role Can a Lawyer Play in Securing an Emergency Custody Order?

If you and your child are in an urgent situation where a delay in receiving a custody order could have serious consequences, a lawyer from Anthony Family Law can help you bring the necessary emergency motion to protect yourselves. Your lawyer will ensure that your motion is well-organized and adequately supported with facts, to give you the best chance of success. They will also help you as you go forward with the custody process following the emergency order. To learn more about how we can assist you during this challenging time, contact our Ontario law firm today at 647-933-2397.

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