By Jeff Jiehui Li
What are ex parte orders?
An ex parte order is an order obtained from the court without notice to the other party or parties. An ex parte order can be issued on hearing a motion brought by a party without notice to the other party or parties (ex parte motion). The powers of the court to issue an ex parte order are specifically provided under s. 37.07(1)-(3) of the Rules of Civil Procedure, or s. 14(12) of the Family Law Rules.
An ex parte order is always temporary in nature. After its issuance, the party having obtained the order will be required to serve it immediately on the relevant parties, and have the order enforced. Because the court has only heard one party’s position in issuing an ex parte order, the other parties affected by the order will be given an opportunity to present their arguments and evidence. This is usually by setting another hearing date, on which all the parties will be heard.
How to obtain an ex parte order?
As discussed above, an ex parte order is issued upon the court’s hearing of an ex parte motion. Ex parte motions should be used with caution because they counter the very principle of an open court: that all parties affected by the order should have the right to respond and be heard. Normally the court will hear both parties’ evidence and arguments before making an order. However, sometimes the nature of the motion or the circumstances may render service of the notice of motion impracticable or unnecessary, and sometimes the delay required to effect service might entail serious consequences. For example, a party is transferring assets out from the court’s jurisdiction, which will render an order against the party, even if granted, unable to be enforced. Or, a party is destroying evidence that is critical in proving another party’s case. In a family law case, a parent may be in the process of removing a child from Ontario. In these situations, it is appropriate for the court to issue an ex parte order.
Because of the one-sided nature of the ex parte order, the party requesting it will bear a stronger onus than in a normal motion proceeding. In hearing an ex parte motion, the court’s first question is whether the circumstances justify granting the order without hearing the other party. For this the moving party needs to satisfy the court that there are some emergencies, and failing to act immediately will result in some irreparable harm. The relief sought must be proportional to the prejudice suffered if the relief is not granted. Also, a party must be prepared to compensate the other parties in case the ex parte order is obtained improperly or results in unjustified prejudice or loss of the other parties.
As the court will be able to hear only one party in an ex parte motion, the moving party must make full and frank disclosure of all relevant important facts, even if such facts may not be helpful to his or her case. Failure to make full and frank disclosure may result in setting aside the order later on.
Practical issues
Apart from the legal requirement mentioned above, there are some practical issues that a moving party should consider. There may be more than one jurisdiction (forum) where one can obtain an ex parte order. In international litigation, there is always an option to choose a forum to start the proceeding, (the originating forum). The ex parte order must finally be obtained and enforced in a jurisdiction where the subject persons and/or assets are located (destination forum). However, it is generally easier for the destination forum to grant the ex parte relief on the basis of a similar relief granted in another forum.
Even within the same judicial forum, different courts may have jurisdiction over a particular matter. Take family law matters in Ontario as an example. In the Toronto region, if an ex parte order sought concerns only custody, access, removal and/or non-removal of children, then you may choose one of the three courts: 393 University, 311 Jarvis, or 47 Sheppard East. Which court should you go to? In making a decision, you may want to consider a series of questions, such as when an ex parte motion can be heard. How easy is it, generally speaking, to obtain an ex parte order at a particular court? Are you familiar with one or more judges, or all the judges of a particular court? Given the heavier onus and more stringent requirements in ex parte motions, it would be a good idea to consult a lawyer before going to court, even if you intend to do it by yourself.
(To be continued.)
Related Articles
Ex Parte (Without Notice) Order (II)