Ex Parte Orders in Ontario: Emergency Relief Without Notice

If you have been served with an ex parte order, or if you are considering seeking one, know that these orders are the exception, not the default. Ontario family courts start from the principle that both parties deserve an opportunity to be heard. An ex parte order skips that step, which is why the threshold for obtaining one is high and why they can be set aside if the process was not followed properly.

What “Ex Parte” Means in Family Law#

Ex parte is a Latin term meaning “from one side.” In family law, an ex parte motion is a request to the court made by one party without giving notice to the other party. The party bringing the motion asks the court to make a determination based on written materials alone, without the other side present. The adjudication proceeds on an incomplete evidentiary record, which is why the procedural obligations on the moving party are correspondingly elevated.

The modern term used in Ontario’s Family Law Rules, O. Reg. 114/99, is “without notice motion.” Courts and lawyers still use “ex parte” regularly, and the two terms mean the same thing in practice. You will see both in court endorsements and in the case law. Notwithstanding the interchangeable terminology, the underlying jurisdictional requirements are identical regardless of which label appears in the motion materials.

The key difference between an ex parte motion and a regular motion is procedural fairness. A regular motion requires you to serve the other side with your materials so they can respond. An ex parte motion does not. Because it removes the other party’s right to be heard before the order is made, courts treat ex parte motions with considerable skepticism and grant them only when the circumstances justify bypassing the normal adversarial process. The extraordinary nature of the relief means the evidentiary threshold is correspondingly higher than on an ordinary motion.

When Ontario Courts Grant Ex Parte Orders#

Rule 14(12) of the Family Law Rules sets out the circumstances in which a motion may be made without notice. The motion must be one where:

Family courts generally grant ex parte motions in a few recognizable categories of circumstances:

• Risk to a child’s safety: where there is evidence of imminent harm and waiting for a regular motion would expose the child to danger
• Risk of flight: where there is credible evidence that a party intends to leave Ontario with a child
• Risk of property dissipation: where there is evidence that a party is actively disposing of or hiding assets
• Preservation orders: where assets need to be frozen to prevent irreversible loss before the other party can be served

What matters is the evidence. The court requires specific facts that justify dispensing with the ordinary notification requirements. Speculation about what the other party might do is not enough. The evidentiary foundation must demonstrate circumstances of sufficient immediacy and severity to justify the extraordinary departure from bilateral adjudication.

If you want the broader procedural context, see family law motions and family court in Ontario.

What You Must Disclose When Seeking an Ex Parte Order#

A party seeking an ex parte order has a heightened duty to the court. Because the other side is not present to offer their version of events, the party bringing the motion must make full and fair disclosure of all material facts, including facts that are unfavourable to their position.

This obligation is not discretionary. It reflects a fundamental procedural requirement inherent in unilateral proceedings. Material noncompliance with the disclosure obligation can, by itself, constitute sufficient justification for setting the order aside entirely.

In Gagné v. Vanderland, 2009 CanLII 59156 (ONSC) at paras. 1-4, the court set aside an ex parte order that had frozen the applicant’s bank accounts and his companies’ accounts. Justice Macdonald found that the respondent’s affidavit “did not provide the complete picture” of the events and that “there was no evidence, other than [the respondent’s] speculation” that the applicant was divesting assets. The court also criticized the fact that the order did not include the mandatory 14-day return date required by Rule 14(14).

I tell every client considering an ex parte motion the same thing: judges want specifics in the affidavit — dates, text messages, threats, travel plans, account transfers. The court will not act on a hunch or a bad feeling. You need particularized evidence demonstrating why this cannot wait for the ordinary notification process. If you seek an ex parte order and omit unfavourable information, the order will likely be set aside, and you may face a costs obligation on top of it.

The 14-Day Return Requirement#

Rule 14(14) of the Family Law Rules requires that an ex parte order include a date for the matter to come back before the court. The order must be returnable within 14 days of the date it was made, or on a date chosen by the court.

The order preserves the existing circumstances provisionally until both parties can participate in a bilateral adjudication. The return date is when the other party has the opportunity to respond, and the court decides whether the order should continue, be modified, or be set aside entirely.

If the party who obtained the ex parte order does not serve the other side and bring the matter back within 14 days, that creates a serious procedural defect supporting a motion to set the order aside. Courts have been openly critical of situations where orders are obtained ex parte and then left in place without a proper return. As Justice Macdonald noted in Gagné, experienced counsel should ensure the draft order includes both a service requirement and the 14-day return date.

How to Set Aside an Ex Parte Order#

If you have been served with an ex parte order, you are not without options. The order is temporary. It was made without hearing your side, and the court expects the matter to return promptly. The respondent’s opportunity to challenge the order is a fundamental procedural safeguard, and the determination on the return date proceeds with the benefit of contradictory evidence and adversarial submissions.

The Family Law Rules do not contain a standalone rule specifically setting out the procedure for setting aside an ex parte order. In Rinaldi v. Rinaldi, 2013 ONSC 7368, counsel relied on Rule 1(7) of the Family Law Rules, which provides that the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, may be applied by analogy when there is no specific Family Law Rule on point.

Courts apply several principles when deciding whether to set aside an ex parte order. Drawing on Rule 37.14 of the Rules of Civil Procedure and the common law duty of full and frank disclosure, the main grounds include:

• Material nondisclosure: the party who obtained the order failed to disclose relevant information
• The order is unjust: the evidentiary foundation does not support the relief granted
• Changed circumstances: the situation has materially changed since the original determination
• Fraud or misrepresentation: the order was obtained through deliberately misleading information

On the return date, the court hears both sides and makes a determination on whether the order should stand. If the order was obtained improperly through material nondisclosure, exaggeration, or the absence of genuinely extraordinary circumstances necessitating the departure from ordinary adversarial proceedings, the court will set the order aside.

Can You Bring an Ex Parte Motion Before a Case Conference?#

Usually, no motion can be heard before a case conference deals with the issues. Ex parte motions are one of the narrow exceptions.

Rule 14(4) of the Family Law Rules says that no motion may be served and no motion may be heard before a case conference has dealt with the issues, except in limited circumstances.

One of those exceptions is Rule 14(4.2), which allows urgent motions and ex parte motions to proceed before a case conference. But that exception is still governed by the urgency threshold. You cannot use the ex parte route simply to avoid the case conference requirement.

In Thabotharan v. Subramaniam, 2023 ONSC 813, the applicant brought an ex parte motion before a case conference under the Rule 14(4.2) urgency exception. The court declined to award costs on the ex parte motion, finding that the urgency was overstated and the applicant never gave the respondent a chance to consent voluntarily before proceeding without notice.

For related procedure, see family law case conference and what is the point of a case conference in family law.

Costs Consequences of Ex Parte Motions#

Ex parte motions can be expensive for both sides, and the financial consequences are not hypothetical. Counsel who overreach on ex parte relief often pay for it in costs and credibility at the return date. If the motion is unsuccessful, or if the order is subsequently set aside, the party who initiated the application often bears the costs.

In Covens v. Ram, 2021 ONSC 3211 at paras. 2-4, the applicant father brought an urgent ex parte motion for sole decision-making responsibility and exclusive possession of the matrimonial home before a case conference. Justice Shore initially granted a temporary order placing the children with the father. When the matter returned with both parties’ materials, the court reversed its initial order and placed the children with the mother. The respondent sought costs of $17,764.80, and the court awarded them.

Ex Parte Motion Example: When It Works and When It Doesn’t#

Consider Priya and James. They have two children, ages 6 and 9. After a heated argument, James tells Priya he is taking the children to his family in another province and she “will never see them again.” He starts packing bags.

Priya contacts a family lawyer. The lawyer prepares an urgent ex parte motion under Rule 14(12), seeking a temporary order prohibiting James from removing the children from Ontario and granting Priya temporary custody. The affidavit includes the specific threat James made, the date and circumstances, and evidence of flight risk, including a one-way flight search on the family computer, packed bags, and the fact that James’s parents live in British Columbia.

The court grants the ex parte order with a return date 12 days later. James is served the next day. On the return date, both Priya and James appear with counsel. James argues the threat was made in anger and he had no real intention to leave. The court considers both sides and either continues the order, modifies it, or sets it aside based on the full picture.

Now consider a different scenario. Priya seeks the same ex parte order, but her affidavit says only that James “might take the children” based on a feeling she has. There is no specific threat, no evidence of flight preparation, and James has lived in Ontario his entire life. In that scenario, the motion would likely be denied or, if granted, set aside on the return date, potentially with costs against Priya.

The difference is the evidence supporting urgency.

Checklist: What to Do If You Receive an Ex Parte Order#

• Read the order carefully, noting the return date and every obligation imposed by the order
• Do not ignore it. The order is enforceable notwithstanding that you were not present when the determination was made
• Contact a family lawyer immediately. You need responding materials prepared before the return date
• Gather your evidence, including documents and anything showing the full picture the other side may not have provided
• Note any material facts the other party omitted from their motion materials
• Comply with the order in the interim. Violating a court order, even one you believe was improperly obtained, carries serious consequences, including contempt of court

Checklist: Before Seeking an Ex Parte Order#

• Confirm genuine urgency. Would giving notice to the other party defeat the purpose of the motion, or would waiting for a regular motion cause a serious risk that the court needs to address immediately?
• Prepare a thorough, honest affidavit. Include all material facts, including those that are unfavourable to your position
• Ensure the draft order includes the Rule 14(14) requirement: a return date within 14 days or on a date chosen by the court
• Plan for immediate service on the other party after the order is granted. For more on that process, see how to serve documents in Ontario in family law
• Know that the order is temporary. The court will hear the other side on the return date and may set the order aside
• Budget for costs. If the order does not hold up, you may be paying the other party’s legal fees

What the Law Says#

How a Family Lawyer Can Help With Ex Parte Matters#

The practical challenge with ex parte motions is that the jurisdictional threshold is strict and procedural missteps carry real consequences for subsequent adjudication.

If you need an ex parte order and the situation is urgent, the motion needs to be prepared carefully. If you have received an ex parte order, the window to respond is short. You have at most 14 days before the return date, and in practice, you need responding materials prepared well before that. The most compelling responses identify specific material facts the other party failed to disclose and present contradictory evidence contradicting what the court originally heard.

Either way, ex parte motions are procedurally demanding. They typically involve determinations about children’s residential arrangements or the preservation of significant property.

In my experience, ex parte motions succeed when the affidavit clearly explains why the matter is urgent, why notice to the other side would defeat the purpose of the relief, and why the order being sought is proportionate to the actual risk. I tell clients that the question is never whether you are upset or scared. The question is whether waiting even a few days for notice would put someone at real risk.

Frequently Asked Questions#

If you have questions about ex parte orders, urgent family law motions, or any family law matter in Ontario, contact Krol & Krol for a consultation.