Wang v. He: Urgency, Without Notice Motions, and Counsel Conduct Under Scrutiny

Associate Justice Kamal’s endorsement in Wang v. He, 2025 ONSC 3072, is not merely a gatekeeping decision on urgency — it is a pointed reminder to the bar that strict adherence to procedural rules and professional obligations is non-negotiable. The ruling illustrates three core principles:

• The high legal threshold for urgency under Rosen and its progeny;
• The exceptional nature of without notice motions under Rule 14(12) of the Family Law Rules; and
• The consequences of procedural misconduct — both in costs and in credibility.

Facts & Procedural Background

The parties separated in May 2024. Their only child, born September 24, 2024, had been in the father’s care since the separation.

On May 14, 2025, the applicant mother served a Form 14A affidavit and a Form 14B motion form, marked “with notice”, seeking:

• The child’s immediate return to her primary care;
• An interim parenting schedule;
• Exclusive possession of the matrimonial home; and
• A police enforcement clause.

When court staff advised that the earliest available with notice urgent motion date was June 10, 2025, applicant’s counsel withdrew the original with-notice motion and re-served the materials without notice to obtain a May 22, 2025 hearing. No case conference had yet occurred.

The respondent opposed the urgency request, disputing that the mother was the primary caregiver, denying any plan to leave Ontario, and asserting that the child was in a stable routine with paternal family support.

The Urgency Analysis

Associate Justice Kamal grounded her analysis in four leading authorities.

1. Rosen v. Rosen ([2005] O.J. No. 62) – The Foundational Test

In Rosen, in a case which I successfully argued 20 years ago, Wildman J. established that urgency generally arises in three situations: imminent risk of child abduction, threats to health or safety, or dire financial circumstances. The court must first consider when a case conference could be held, as proximity of that date may undercut urgency. Only if no timely conference is possible does the court proceed to examine whether the matter truly demands immediate judicial intervention.

2. Yelle v. Scorobruh (2016 ONSC 3300) – Contextual Urgency Factors

In Yelle, Doyle J. synthesized multiple urgency rulings into a seven-factor framework, asking, for example, whether earlier conference dates were canvassed, whether local fast-track procedures were explored, whether interim agreements were attempted, and whether genuine safety, abduction, or hardship concerns exist. It emphasized that urgency is not established by conflict alone, but by pressing facts coupled with procedural diligence.

3. Thomas v. Wohleber (2020 ONSC 1965) – The Four-Part Test

Thomas distilled urgency into four elements:

• The concern must be immediate;
• It must be serious, significantly affecting health, safety, or economic well-being;
• It must be definite and material, not speculative; and
• It must be clearly particularized in evidence, with concrete examples.

4. Dyquiangco Jr. v. Tipay (2022 ONSC 1441) – Two-step Rosen and good-faith dialogue

At paragraph 6 in Dyquiangco Jr., the court confirms the approach for urgency involves a two-step inquiry and is generally related to situations involving abduction, threats of harm and dire financial circumstances: (i) assess availability of a proximate case conference date (its absence may elevate urgency); and (ii) before moving, parties must engage in good-faith discussions to explore a temporary, reasonable compromise pending that conference. The typical urgency categories (abduction, harm, dire finances) guide but do not exhaust the analysis.

Application in Wang v. He

Justice Kamal found none of the urgency tests met:

• No credible evidence the father would remove the child from Ontario;
• No indication of immediate harm to the safety, health, or welfare or economic well-being of the parties or their child;
• High conflict alone was insufficient.

The evidence did not “does not establish urgency, hardship, or that it is in the interest of justice for the motion to proceed before a case conference”.

Procedural & Professional Conduct Breaches

Ignoring Local Practice Direction

The Consolidated Notice to the Profession for Ottawa Family Court limits procedural motion materials to:

• A Form 14 or 14B and an affidavit of no more than five double-spaced pages in 12-point font;
• Proof of service; and
• A draft order in PDF and Word.

The applicant’s materials far exceeded those limits.

Improper Use of Without Notice Procedure

Rule 14(12) allows a motion without notice only if:

• Notice is unnecessary or not reasonably possible;
• There is immediate danger of removal from Ontario;
• There is immediate danger to health or safety; or
• Service would likely cause serious consequences.

Seeking an earlier court date is not a valid criterion. Justice Kamal expressly noted:

“There is nothing in the FLRs that say that a motion can proceed without notice in order to obtain an earlier court date.”

Advocacy From the Counsel Table

Applicant’s counsel repeatedly made statements not in evidence and attempted to give evidence personally. The court intervened multiple times, characterizing the conduct as inappropriate.

Costs

The respondent sought $3,000 on a substantial indemnity basis. The court awarded $1,500 under Rule 24, citing:

• Inappropriate procedure;
• Unnecessary time and cost to the respondent;
• Disproportionate materials;
• Disregard of the practice direction;
• Lack of professional integrity.

Practical Lessons for Ontario Family Law Lawyers

Treat Urgency as the Exception, Not the Rule

• Urgency requires clear, admissible, immediate risk.
• If a timely case conference is available, urgency is rarely found.

Exhaust Procedural Alternatives

• Always canvas earlier dates, local expedited processes, and interim agreements.

Use Without Notice Motions Only When Rule 14(12) Truly Applies

• Procedural convenience is never a basis.
• Ensure full and frank disclosure of all material facts.

Comply With Practice Directions

• Page limits and format rules are mandatory, not advisory.

Maintain Evidentiary Discipline

• Keep facts in sworn evidence; submissions are not a substitute.

Conclusion

Wang v. He reinforces that Ontario family law is governed by both substantive urgency thresholds and procedural discipline. Deviating from either can undermine the merits of a client’s case, result in adverse cost consequences, and damage counsel’s credibility with the court.

For practitioners, the takeaway is clear: urgent relief is a high-threshold remedy, reserved for genuinely immediate and serious situations — and must be pursued with scrupulous adherence to the Family Law Rules, local directions, and professional standards.

Let’s continue to elevate the practice of family law in Ontario!

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Disclaimer: The information provided in this blog post is intended for general informational purposes only and should not be considered as legal advice. Consult with a qualified family law attorney for advice regarding your specific situation. Goldhart Mediation & Arbitration is not responsible for any actions taken based on the information presented in this blog.