Superior Court of Justice – Ontario
Court File No.: FC-25-00000950
Motion Heard: 2025-05-22
Re: Shibo Wang, Applicant
And
Mingxuan He, Respondent
Before: Associate Justice Kamal
Counsel:
Wei Wang, for the Applicant
Haiyan Zhang, for the Respondent
Determination of Urgency Endorsement
This motion is with respect to one child: Amelia Jiamu He (“Jiamu”), who was born on September 24, 2024.
The Applicant brings an urgent motion for parenting time, including primary care to the Applicant. Specifically, the Applicant seeks the following orders:
a. An interim order that Jiamu shall be returned to the Applicant’s primary care immediately;
b. An order that Jiamu shall be primarily living with the Applicant;
c. An interim parenting schedule for the parties with the child so the Applicant’s parenting time will not be unreasonably denied or disrupted by the Respondent;
d. Immediate exclusive possession of the matrimonial home to the Applicant; and
e. A police enforcement clause to enforce the order if necessary.
Urgent Motion Request
This court attendance was only to determine whether this motion should be heard on an urgent basis.
This Application was issued recently, and a case conference has not been held.
The moving party’s position is that the motion is urgent for the following reasons, in her view:
a. She left the home on May 4, 2024, as a result of verbal and mental abuse and maltreatment from the Respondent and his parents;
b. The child has remained with the Respondent in the matrimonial home;
c. The Applicant has been the primary caregiver and has breastfed the child;
d. The Respondent will leave Ontario with the child; and
e. The Applicant fears the Respondent may take unilateral actions that jeopardize her relationship with Jiamu or remove Jiamu from the jurisdiction.The responding party’s position is that the motion is not urgent for the following reasons, in his view:
a. The Applicant has not been the primary caregiver because the Applicant has left the home for days since the child was born and has withdrawn from care for the child on multiple occasions;
b. The child is in the loving care of the father and the paternal grandparents, who have been a constant presence in the child’s life;
c. The Applicant is using the child as a bargaining chip;
d. The Applicant has not consistently breastfed the child, including not breastfeeding for weeks in October 2024;
e. The child currently has an established routine that is the same as it was prior to the parties' separation;
f. The Respondent is agreeable to working out a parenting arrangement for the Applicant; and
g. The family relied on a nanny and therefore, the Applicant was not the primary caregiver.
Legal Framework for Urgency
- Rules 14(4) and 14(4.2) of the Family Law Rules, O. Reg. 114/99 (“FLRs”), set out the general requirement that a case conference must be held before a motion may be heard, and the exceptions to that requirement:
(4) No notice of motion or supporting evidence may be served and no motion may be heard before a conference dealing with the substantive issues in the case has been completed.
(4.2) Subrule (4) does not apply if the court is of the opinion that there is a situation of urgency or hardship or that a case conference is not required for some other reason in the interest of justice.
Rosen v. Rosen, [2005] O.J. No. 62 (S.C.J.) is the leading case with respect to determining urgency.
The factors that may be considered in determining whether a matter is urgent were examined in Yelle v. Scorobruh, 2016 ONSC 3300. Following a review of decisions applying rule 14(4.2), Justice Doyle summarized, at paragraph 50, the inquiry as follows:
- Whether the parties have canvassed earlier dates for a case conference with the family court counter and with the trial coordinator’s office. If so, the dates available should be included in the materials before the court;
- Whether the parties have explored the local practices for dealing with family law matters and for obtaining earlier dates to address matters of immediate importance. For example, in Ottawa, a case conference can be heard on the same day as the First Court Date Clerk hearing date and so this date must be taken into account in determining urgency;
- Whether the parties have had negotiations in an attempt to reach an interim without prejudice agreement;
- Whether the best interests of the child are at stake including whether there is an abduction issue or other safety concern;
- Urgency must be established in accordance with the jurisprudence, which includes abduction, threats of harm, dire financial circumstances;
- Is there hardship? In considering whether there is hardship, the Court will consider whether a party will be severely prejudiced or suffer irreparable or non-compensable harm; and/or
- If there are other pressing issues such as domestic violence, mental health issues and/or substance issues, criminal activity or serious anger management issues, this may bring the matter out of the normal procedure as it may require immediate attention by the court.
The onus is on the Applicant, as the moving party, to establish that there is a situation of urgency or hardship or other reason in the interest of justice that this motion should be addressed before a Case Conference.
The Court recently wrote in Dyquiangco Jr. v. Tipay, 2022 ONSC 1441, at paragraph 6:
The Rosen test for urgency involves a two-step inquiry and is generally related to situations involving abduction, threats of harm and dire financial circumstances. This list is not exhaustive. The first step requires an inquiry when a case conference date is available. Absence of a proximate date may elevate a situation to urgent. The second step before bringing a motion obligates the parties to engage in a good faith dialogue to ascertain whether some temporary, reasonable compromise can be achieved pending the conference. Context is important. In Rosen, Wildman J. contrasted the situation where support was desperately needed, but refused, with a less compelling situation where the amount of support offered was within a reasonable range of the request.
- The following factors are necessary for a finding of urgency, as set out in Thomas v. Wohleber, 2020 ONSC 1965:
a. The concern must be immediate; that is one that cannot await resolution at a later date;
b. The concern must be serious in the sense that it significantly affects the health or safety or economic well-being of parties and/or their children;
c. The concern must be a definite and material rather than a speculative one. It must relate to something tangible (a spouse or child’s health, welfare, or dire financial circumstances) rather than theoretical; and
d. It must be one that has been clearly particularized in evidence and examples that describes the manner in which the concern reaches the level of urgency.
Application of the Legal Principles
Motions are discouraged as the first step in family law litigation. The philosophy of the Family Law Rules is to encourage parties to resolve their disputes as early as possible and without the need for protracted litigation.
Motions under r. 14(4.2) are meant to be an exception, see Tinsley v. Doherty, 2018 ONSC 1814, at paragraph 5, Barrett v. Barrett, 2019 ONSC 6197, at paragraph 21, citing Rooney v. Rooney, 2004 ONCJ 26, at paragraph 15.
Based on the evidence before me and applying the legal principles, the test for an urgent motion has not been met. While it is clear that this matter is high-conflict, that does not raise to the level of urgency. There is no evidence that the Respondent will leave Ontario with the child. There is no evidence of immediate harm, or serious concerns that affect the health, safety, or economic well-being of parties and/or their child. The evidence before me does not establish urgency, hardship, or that it is in the interest of justice for the motion to proceed before a case conference.
I do not see that any of the factors in Thomas v. Wohleber have been met. I do not see any other reason for this matter to proceed as an urgent motion. The request for an urgent motion is dismissed.
Both parents are encouraged to take a child-focused approach to their interactions with the child and with each other.
The Role of Counsel
In family law proceedings, counsel plays a critical role. They carry weight and credibility with the clients. This privilege comes with responsibility – the responsibility to reduce conflict, to maintain the integrity of our system, and to ensure public confidence. Counsel should not use their role to fuel conflict or to gain an unfair advantage for their client.
In this matter, Counsel for the Applicant repeatedly made submissions of information that was not in evidence and attempted to give evidence from the counsel table. I stopped counsel on numerous occasions. This was simply not appropriate.
Counsel also completely disregarded the Consolidated Notice to the Profession for Family and Child Protection Matters in the Ottawa Family Court. The Notice specifically states:
Materials in support of procedural motions are limited to the following:
- a notice of motion (Form 14) and a brief affidavit, double-spaced, in twelve-point font, not exceeding five pages (plus a copy of any existing court order or the relevant portions of any agreement or other document necessary for the motion), OR a 14B motion form;
- proof of service on the other party (unless the motion seeks an order to substitute or dispense with service);
- a draft order, in PDF and Word format.
A request for leave to bring an urgent motion is a procedural motion. Therefore, the materials supporting such requests are restricted to those permissible for a procedural motion (see above).
The materials filed in support of today’s attendance exceeded the page limits and disregarded the directions in the notice.
All of this led to added expenses and wasted time in today’s attendance.
The Inappropriate Use of a “Without Notice” Motion
The more inappropriate conduct of counsel was that they admitted to rescinding their Notice of Motion that was made on notice, and proceeded with a Motion Form that was without notice for only one reason – to obtain an earlier date.
Aside from the improper motive of trying to obtain an earlier date, it is inappropriate to pursue a motion without notice unless the criteria set out in the Family Law Rules is met.
The evidence before me establishes the following events:
a. On May 14, 2024, counsel for the Respondent received Forms 14A and 14B for leave for an urgent motion from counsel for the Applicant, Wei Wang. In the Form 14B, Ms. Wang checked off “with notice” and the date to be “TBD”.
b. On May 20, 2025, at approximately 8:25 a.m., counsel for the Respondent emailed and later called Ms. Wang to inquire about the scheduling of the motion. She received no reply.
c. Counsel for the Respondent had her staff then contact the court to inquire about whether a motion date had been scheduled. They did not get a response.
d. On May 20, 2025, Ms. Wang sent an email to counsel for the Respondent stating that the motion had been brought on a “without notice” basis and that the service of the motion materials (Forms 14A and 14B) had been made “by mistake”.
e. On May 21, 2025, counsel for the Respondent received the Zoom link from the Court, in an email copied to both counsel.
f. Ms. Wang responded the motion material was sent to counsel for the Respondent and the Court should not have sent the motion details to counsel for the Respondent.
g. On May 22, 2025, moments before the motion commenced, Ms. Wang wrote to counsel for the Respondent to state that her client is seeking a “without notice” motion because Ms. Wang had been told by the court that the earliest “with notice” urgent motion was June 10, 2025. She wanted an earlier date.
I asked Ms. Wang about this exchange and she advised that while she originally served the motion materials, she proceeded with a motion without notice because it was earlier to get a date if the motion was not on notice.
Rule 14(12) of the FLRs states:
Motion without notice
(12) A motion may be made without notice if,
(a) the nature or circumstances of the motion make notice unnecessary or not reasonably possible;
(b) there is an immediate danger of a child’s removal from Ontario, and the delay involved in serving a notice of motion would probably have serious consequences;
(c) there is an immediate danger to the health or safety of a child or of the party making the motion, and the delay involved in serving a notice of motion would probably have serious consequences; or
(d) service of a notice of motion would probably have serious consequences.
There is nothing in the FLRs that say that a motion can proceed without notice in order to obtain an earlier court date.
While I acknowledge that the FLRs state that a motion can proceed without notice if “the delay involved in serving a notice of motion would probably have serious consequences”, but that must also include that there is “immediate danger to the health or safety of a child or of the party making the motion”.
This rule is not meant to allow parties/counsel to create their own procedures or avoid the regular court processes.
“Without notice” motions are to be granted only in exceptional and rare cases, see A.M. v. J.M., 2016 ONCA 644 and Jagpal v. Nayyar, 2015 ONSC 5735, at paragraph 10.
When faced with an ex parte motion and supporting affidavit material, a court must balance the rights of the parties, the safety of children or parties, and all other exigencies before the court, see J.A. v. O.G., 2011 ONSC 3302, at paragraph 91.
In the decision of Price v. Price, 2016 ONSC 728, Justice Timms affirms the requirement that the moving party make full and frank disclosure of all material facts (at paras. 15–16; see also Z. (A.) v. Z. (C.), at para. 24–25).
In my view, it was inappropriate for counsel to attempt to proceed with this motion without notice because the test in the FLRs was not met and because it was clear that the Respondent was represented by counsel.
Costs
Counsel for the Respondent sought costs in the amount of $3,000, which were costs on a substantial indemnity basis.
In my view, it is appropriate for the Applicant to pay costs in the amount of $1,500.
I have the jurisdiction and discretion to grant costs pursuant to Rule 24 of the FLRs.
In my view, costs are appropriate for today’s attendance for the following reasons:
a. The conduct of the Applicant and her counsel was inappropriate in the manner in which they proceeded with this motion;
b. The conduct of the Applicant and her counsel caused unnecessary time and expense for the Respondent in responding to this motion, including time and expense to find out whether the motion was even scheduled and proceeding;
c. Counsel for the Respondent made an offer that was not accepted;
d. The Respondent had to prepare three affidavits to deal with the Applicant and her counsel’s conduct;
e. The materials and submissions of the Applicant and her counsel were disproportionate to the issues being addressed in this motion;
f. The Applicant and her counsel completely disregarded the Notice of the Profession;
g. The inappropriate submissions of the Applicant’s submissions that were not in evidence added unnecessary length to today’s attendance; and
h. As officers of the court, counsel need to act with integrity. Counsel for the Applicant did not do so.
Associate Justice Kamal
Date: May 23, 2025