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  • Writer's pictureAngela Desjardins

What is an ex parte motion and when to file with the court?

An ex-parte motion is a type of motion in the civil and criminal law systems. In civil cases, only one party has has to appear to present it's case before the judge without the other party being present. In criminal cases, it's when a judge hears from one of the parties involved in a case without having to notify or inform them first. Ex-parte motions are different from most court hearings, where you must get a date with a judge to make your case, and there are strict pre-trial procedures you must follow.

Ex-parte means that only one of the parties in a case is present for a hearing or when a judge hears from one of the parties involved. This term applies to applications where only one side (the applicant) is present. Ex-parte applications are usually heard at the beginning of the court process and are not allowed if the defendant has already made their first appearance in court.

In criminal cases, ex-parte applications are usually heard before charges have been laid at the beginning of the court process. Although laying charges is an essential step in the court process that can affect how a case proceeds in civil and criminal matters, applications, after charges have been laid, are dealt with differently than those made at an earlier stage of proceedings. If the defendant has made their first appearance in court (or election and plea if they were required to do so), or they have already been convicted of an offence, then ex-parte applications are not allowed. You may still be able to obtain an order that is in your favour, but only after giving the other side notice of your application by filing a Notice of Motion at least 14 days before you go to court.

The usual procedure is to get a date with a judge to make your case. You'll be allowed to present your evidence, and the other party will get an opportunity to respond or cross-examine you. This can take several weeks or months, depending on whether any other cases need attention before yours.

If you decide to apply for ex parte orders (and if there is no other way of resolving your dispute), you may need to file an application without notice being given before the hearing date. This means that no one else knows what's going on until they receive notice from their counsel.

It would help if you tried to get a date as soon as possible because once you apply for ex-parte orders, there will be a brief window to provide your evidence to the court. In addition, the judge will need time to read and consider what you are asking them to do, so they may not give you more than two weeks after receiving your application.

You must also ensure that all your witnesses can attend court on this proposed date and anyone else who may know relevant to the case. If someone cannot attend in person, then they must write down their evidence and send it in with their witness statement before 5 pm on the day before the hearing date so that it is available when the hearing starts at 9 am on Tuesday 21st April 2019 (or 11 am if necessary).

There is an exception for cases about threats of physical violence where there is no time to wait for a court date. Any person who receives information from another person that they have the intention of committing bodily harm against any person has the right to apply directly to the Ontario Court of Justice ex parte without notice and without going through the usual case management process that generally takes place when someone makes an application in court.

If you are in immediate danger, you can apply for an ex parte order. You must show that you are in immediate danger and that the person you are afraid of is likely to commit physical violence against you.

You can also apply ex parte if this rule doesn't cover your situation and you need immediate protection (in family law cases). Ex parte applications are usually heard at the beginning of the court process before charges have been laid.

When making an ex parte application, you must include:

  • A sworn statement outlining your reasons for needing immediate protection

  • An explanation of why you must get this protection now

If the court grants your request, they will issue an order giving you temporary relief until a hearing can be scheduled to hear more evidence on whether to continue with your request for protection.

Ex parte applications are governed by different rules. The usual procedure is to get a date with a judge to make your case. It would be best if you tried to get a date as soon as possible because once you decide to apply for ex-parte orders, there is only a brief window of time to do so.

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