Family Law Centre Logo

The New
Ontario Family
Law Rules

 

Ontario has introduced new rules for family law matters which have been in effect ini certain courts since at least, or before, November 15th, 1999. (To find out if they affect you check out Where the New Family Law Rules Are In Place) These rules govern family law matters in all Family Court of the Superior Court of Justice locations and in all locations of the Ontario Court of Justice, the former Ontario Court (Provincial Division), but not apply to the Superior Court of Justice locations where there will be no Family Court of the Superior Court of Justice.

The Toronto firm of Nathens, Siegel has created the very useful Nathens, Siegel Guide to the Family Law Courts in the Toronto Area to show what is required where for the courts in Toronto. If you are going to be in one of those courts and want to find out how it works there, check out the Guide.

Return to Contents

The New Rules and Forms

You may access the Rules and the Forms through the Guide to the Ontario Courts web site

Or you may access them directly from:

  • The Rules (This is the government's site but does not include the amendments made November 26/99
  • The Forms
  • The Nov. 26/99 amendments

    Return to Contents

    Highlights

    RULE
    COMMENT
    1
    		 The rules apply to all family law cases in the Family Court of the Superior Court of Justice and in the Ontario Court of Justice, whether started before, on or after the day when these rules take effect, for a variety of legislation including the Divorce Act and the Family Law Act, except for Part 5.
    2
    		 "temporary" is the new term for "interim" and "final" is anything other than "temporary". A "final order" includes both an order and a judgment.
    2(2), (3), (4) & (5)

    PRIMARY OBJECTIVE: The primary objective of these rules is to enable the court to deal with cases justly.

    DEALING WITH CASES JUSTLY: Dealing with a case justly includes: (a) ensuring that the procedure is fair to all parties; (b) saving expense and time; (c) dealing with the case in ways that are appropriate to its importance and complexity; and (d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

    DUTY TO PROMOTE PRIMARY OBJECTIVE (4) The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective.

    DUTY TO MANAGE CASES (5) The court shall promote the primary objective by active management of cases, which includes, (a) at an early stage, identifying the issues, and separating and disposing of those that do not need full investigation and trial; (b) encouraging and facilitating use of alternatives to the court process; (c) helping the parties to settle all or part of the case; (d) setting timetables or otherwise controlling the progress of the case; (e) considering whether the likely benefits of taking a step justify the cost; (f) dealing with as many aspects of the case as possible on the same occasion; and (g) if appropriate, dealing with the case without parties and their lawyers needing to come to court, on the basis of written documents or by holding a telephone or video conference.

    4(1)
    		 A party can be represented by a non-lawyer with the permission of the court.
    5
    		 A case is to be started in a municipality where a party resides, but if it involves custody of or access to children then in the municipality where they reside unless there is an immediate danger to a child, in which case it can begin anywhere and is then transferred to the municipality where the child resides. The clerk is to refuse to accept papers if not started in the right municipality.
    6
    		 Regular service includes mailing and delivery by courier and fax. You only need to personally serve a person by "special service" if the document could lead to imprisonment.
    8
    		 All cases are now begun with an "application", including a divorce.
    9

    (1) CONTINUING RECORD: A person starting a case shall, (a) prepare the continuing record of the case, to be the court's permanent record of the case; (b) serve it on all other parties; and (c) before filing it, add to it the affidavits of service or other documents proving service of the continuing record under clause (b).

    (2) DUTY TO KEEP UP CONTINUING RECORD: Once the continuing record has been filed, the parties, under the clerk's supervision, are responsible for adding to it all documents that are filed in the case.

    14
    		 NO MOTION BEFORE CASE CONFERENCE: Before a case conference has been held, no notice of motion or supporting evidence may be served and no motion may be heard, except in a situation of urgency or hardship or for some other reason in the interest of justice. But there are some exceptions.
    16

    (1) SUMMARY JUDGMENT:After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case.

    (2) AVAILABLE IN ANY CASE EXCEPT DIVORCE: A motion for summary judgment under subrule (1) may be made in any case (including a child protection case) that does not include a divorce claim.

    17
    		 In each case in which an answer is filed, (a) a judge shall conduct at least one case conference; and (b) a judge may conduct a settlement conference, a trial management conference or both.
    24
    		 COSTS: There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal. Promptly after each step in the case, the judge or other person who dealt with that step shall decide in a summary manner who, if anyone, is entitled to costs, and set the amount of costs.

    Return to Contents

    November 26/99
    Amendments

    RULE
    AMENDMENT
    1(2.1)
    		 The provisions regarding appeals in rule 38 apply to the Superior Court of Justice and the Divisional Court.
    1(14)
    		 The transitional period for the use of old forms under the new rules has been extended to April 19, 2000
    2(1)
    		 The definition of "support order" in r. 2(1) has been extended to include reference to the definition of support order in s. 2(1) of the Divorce Act (Canada).
    3(4)
    		 The last two rows of the table in r. 3(4) have been corrected ti be consistent with r. 6(7) (service outside of business hours). Under the example in the chart, where a notice of motion is served on a Saturday or Sunday, the motion can be heard no earlier than the following Friday.
    3(7)
    		 Subrule 3(7) has been reworded to clarify when court staff must refuse late documents for filing.
    9(5)
    		 "Pages" is changed to "sheets" to account for double-sided copies.
    9(6)(c)
    		 If the court gives written reasons for making an order, the clerk shall send the reasons to the parties, but not an updated cumulative table of contents.
    13(1)
    		 A financial statement is also required where a claim is made for exclusive possession of the matrimonial home and its contents.
    13(12)
    		 A financial statement that is more than 30 days old must be updated at least 7 days before any motion, not just a motion for a temporary order. The requirement for updating remains unchanged for case conferences, settlement conferences and trials.
    14(1), 15(0.1)
    		Clarification to the provisions regarding asking the court to change an order or agreement have been made. These provisions do not apply to a final order in a child protection case that is reviewable under s. 64 of the Child and Family Services Act (a status review application). The wording of r. 14(1), par. 3 has been amended accordingly, and r. 15(15) has been reworded slightly and moved to the beginning of the rule (now subrule (0.1)).
    17(2)(b), 17(4.1)
    		A case conference can now be held before the answer has been filed, without obtaining a court order to do so. a new form has been developed, Form 17C - Case Conference Notice. When a party wishes to schedule a case conference, a date is obtained from the court, and the [party serves a case conference notice on the other party or parties.
    17(21), (22), (22.1), (22.2)
    		 Case conference briefs and trial management conference briefs will now be filed in the continuing record. Settlement conference briefs will now be filed in the continuing record (unless the court orders otherwise), and will be returned at the end of the conference or immediately destroyed by the court staff. Any offer to settle that forms a part of a conference brief will not be filed in the continuing record. The warning notices on the front page of Form 17 - Case Conference Brief, Form 17A - Settlement Conference Brief, and Form 17B - Trial Management Conference Conference Brief have been amended accordingly.
    23(11), (11.1)
    		Clarification of how to compel attendance of opposing party. In calling an opposing party as a witness at a trial, a party may serve a summons to witness on the opposing party, or serve a notice of intention to call opposing party as a witness on opposing party's lawyer at least 10 days before trial.
    24(3)
    		 Costs may only be awarded for or against a government agency if the agency is a party.
    26(6), 28(1)(b), 29(1)(b)
    		 Subrule 26(6), which authorizes the use of particular forms instead of Form 26 - statement of money owed in specific circumstances, makes an incorrect reference to an earlier subrule. a change has been made to refer to the correct subrule, which is r. 26(5). A similar change is required to r. 28(1)(b); it now refers to subrules 26(5) and (6). Clause 29(1)(b) now includes a reference to r. 26(6) as well as r. 26(5).
    26(11),(14), 27(7), 29(31)
    		 An expansion in the modes of delivery of certain notices has been made to include fax and electronic mail, as well as regular mail. Notices affected by these changes are: a notice of filing or refiling a support order with the Director (Family Responsibility Office) [r. 26(11)]; a notice of transfer of enforcement [r. 26(14)]; a statement of income sent by an income source to a recipient [r. 27(7)]; and a notice to stop garnishment [r. 29(31)].
    28(4)(a)
    		 The wording if r. 8(4)(a) has been clarified. The subrule now reads that a writ of seizure and sale continues in effect until the recipient withdraws is under subrule (7) or the court orders otherwise under subrule (8).
    28(5)
    		 The status of writs issued under previous rules has been clarified. Old writs do not expire, except as provided under r. 28(4).
    29(19)(2), (2.1)
    		A court has the power to change the amount of money being garnished on account n of a periodic payment order, even if the court does not have authority to change the payment order itself. This power is in addition to the power of the court, in specified circumstances, to change both the amount being garnished and the payment order.
    Form 6B
    		Affidavit of Service: In par. 3, 4, and 5 of the form, an extra line has been added with a box, so the affiant can indicate whether the document was left with a lawyer who accepted service on the person's behalf, or with the person's lawyer of record. Previously, these two possibilities were listed on the same line.
    Form 13A
    		Direction to department of National Revenue - Taxation: An explanatory note has been added to make it clear that the Department of National Revenue is to send the information to the other party or the other party's lawyer.
    Form 13B
    		Financial Statement: A correction has been made to the title of Table 3. It now reads (amendments in italics); "Net value of property (other than a matrimonial home) and debts on date of marriage". The box has been modified to allow for listing of assets and debts separately.
    Form 15
    		Change Information Form (motion to change child support): The explanatory note in par. 10 has been corrected to delete "material" before "change".
    Form 25A
    		Divorce Order: Paragraph one now states that the divorce takes effect 31 days after the date of the order. There is also an explanatory note advising that the number should be changed if the court orders that the divorce take effect earlier. Previously, the number of days was left blank.
    Forms 29E, F, G

    Dispute (payor), Dispute (garnishee), Dispute (co-owner of debt): An explanatory note and a box with a notice to the court clerk and all parties has been added at the bottom of each of these forms. The explanatory note warns that merely filing the dispute does not stop the garnishment process. The notice contains a box that can be checked off to indicate a request for a garnishment hearing.

     

    Return to Contents

    Where the New Rules Are In Place

    The new rules are now in effect throughout the province in all locations of the Ontario Court of Justice and each of the locations with the new, unified, Family Court of the Superior Court of Justice system. (See below for those locations) Because of certain delays in appointing the judges to the expansion sites they did not come into existence until November 15th, 1999, while the Ontario Court of Justice locations began with them on September 15th, 1999, as planned.

    Expansion Sites for the Family Court of the Superior Court of Justice which became operational as such on November 15th, 1999 are:

    St. Catharines
    Newmarket
    Durham Region
    Peterborough
    Lindsay
    Cobourg
    Muskoka County
    Ottawa-Carleton
    L'Orignal
    Cornwall
    Brockville, and
    Perth

    All sites of the previous Family Courts converted to the new rules on or before November 15th, 1999. They are:

    Hamilton-Wentworth
    Simcoe County
    Kingston, and
    Napanee

    Courts using the new rules since September 15th, 1999 are:

    All Ontario Courts of Justice other than those in locations becoming expansions sites, and
    the Courts in London

    Courts using the new rules since November 15th, 1999 are:

    All courts in the expansion sites and existing Family court locations as listed above. In these locations there will be a unified Family Court of the Superior Court of Justice combining the family law jurisdictions of both the Superior Court of Justice and the Ontario Court of Justice.

    Courts not using the new rules for the foreseeable future:

    Superior Courts of Justice in any location where there is not an existing Family Court or which is not one of the expansion sites listed above.

    Other than those locations which became expansion sites, or already had the unified Family Courts, and the Ontario Court of Justice, the rest of the province will run on the old rules. In those locations, such as Toronto and Brampton, the new rules have effect from September 15th only in the Ontario Court of Justice courts but not in proceedings in the Superior Court locations there. In those locations we will be operating two separate sets of rules - the old, or current, rules found in the Rules of Civil Procedure for the Superior Court of Justice and the new (presumably better) Family Law Rules for the Ontario Court of Justice locations. Same community but different courts with different rules. Clear?