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O. Reg. 383/11: FAMILY LAW RULES

filed August 17, 2011 under Courts of Justice Act, R.S.O. 1990, c. C.43

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ontario regulation 383/11

made under the

Courts of Justice Act

Made: August 16, 2011
Approved: August 17, 2011
Filed: August 17, 2011
Published on e-Laws: August 19, 2011
Printed in The Ontario Gazette: September 3, 2011

Amending O. Reg. 114/99

(Family Law Rules)

1. (1) Subrule 7 (6) of Ontario Regulation 114/99 is amended by striking out the portion before paragraph 1 and substituting the following:

(6) The court file number given to a case and the description of the parties as applicants and respondents in the case shall remain the same on a motion to change an order, a status review application, an application (general) for Child and Family Services Act cases other than child protection and status review, an application for an openness order, an enforcement or an appeal, no matter who starts it, with the following exceptions:

. . . . .

(2) Subrule 7 (6) of the Regulation is amended by adding the following paragraph:

6. In an application brought under section 145.1.2 of the Child and Family Services Act, the person bringing the application shall be named as the applicant and the children’s aid society and any other party entitled to notice shall be named as the respondents.

2. (1) Subrule 8.1 (1) of the Regulation is revoked and the following substituted:

APPLICATION OF RULE

(1) This rule applies to cases started after August 31, 2011 that deal with any of the following:

1. A claim for custody of or access to a child under the Divorce Act (Canada) or Part III of the Children’s Law Reform Act.

2. A claim respecting net family property under Part I of the Family Law Act.

3. A claim respecting a matrimonial home under Part II of the Family Law Act.

4. A claim for support under the Divorce Act (Canada) or Part III of the Family Law Act.

5. A restraining order under the Family Law Act or the Children’s Law Reform Act.

6. A motion to change a final order or agreement under rule 15, except motions that deal only with changing child or spousal support.

(2) Subrule 8.1 (2) of the Regulation is amended by adding the following clauses:

(c) parties in cases that are proceeding on consent;

(d) parties in cases in which the only claims made are for a divorce, costs or the incorporation of the terms of an agreement or prior court order; or

(e) parties who have already attended a mandatory information program.

3. (1) Subrule 14 (4) of the Regulation is amended by striking out “a case conference” and substituting “a conference”.

(2) Rule 14 of the Regulation is amended by adding the following subrules:

Response to motion form

(10.1) If a party uses a motion form (Form 14B) and no person served with the motion form serves and files a response within four days after being served, the motion shall be dealt with by the court as an unopposed motion.

Where No Reply Permitted

(10.2) A party who uses a motion form (Form 14B) and who is served with a response to it may not serve or file a reply.

4. (1) Subrule 17 (1) of the Regulation is revoked and the following substituted:

Conferences in defended cases

(1) Subject to subrule (1.1), in each case in which an answer is filed, a judge shall conduct at least one conference.

(2) Subrule 17 (7) of the Regulation is revoked and the following substituted:

combined conference

(7) At any time on the direction of a judge, part or all of a case conference, settlement conference and trial management conference may be combined.

(3) Clause 17 (8) (b) of the Regulation is revoked and the following substituted:

(b) make an order requiring one or more parties to attend,

(i) a mandatory information program,

(ii) a case conference or settlement conference conducted by a person named under subrule 17 (9),

(iii) an intake meeting with a court-affiliated mediation service, or

(iv) a program offered through any other available community service or resource;

(b.1) if notice has been served, make a final order or any temporary order, including any of the following temporary orders to facilitate the preservation of the rights of the parties until a further agreement or order is made:

(i) an order relating to the designation of beneficiaries under a policy of life insurance, registered retirement savings plan, trust, pension, annuity or a similar financial instrument,

(ii) an order preserving assets generally or particularly,

(iii) an order prohibiting the concealment or destruction of documents or property,

(iv) an order requiring an accounting of funds under the control of one of the parties,

(v) an order preserving the health and medical insurance coverage for one of the parties and the children of the relationship, and

(vi) an order continuing the payment of periodic amounts required to preserve an asset or a benefit to one of the parties and the children;

5. (1) Subrule 19 (1) of the Regulation is amended by adding “Subject to subrule (1.1),” at the beginning.

(2) Rule 19 of the Regulation is amended by adding the following subrule:

EXCEPTIONS

(1.1) Subrule (1) does not apply to the Office of the Children’s Lawyer or to children’s aid societies.

(3) Rule 19 of the Regulation is amended by adding the following subrule:

Documents of office of the Children’s Lawyer or Children’s Aid Society

(6.1) The court may, on motion, order the Office of the Children’s Lawyer or a children’s aid society to give another party an affidavit listing the documents that are,

(a) relevant to any issue in the case; and

(b) in the control of, or available on request to, the Office of the Children’s Lawyer or the children’s aid society.

(4) Subrule 19 (7) of the Regulation is amended by striking out “subrule (6)” at the end and substituting “subrule (6) or (6.1)”.

(5) Subrule 19 (8) of the Regulation is amended by striking out “required under subrule (1) or (6)” and substituting “required under subrule (1), (6) or (6.1)”.

6. The Regulation is amended by adding the following Rule:

Rule 20.1: Experts

Duty of expert

20.1 (1) It is the duty of every expert who provides evidence in relation to a case under these rules,

(a) to provide opinion evidence that is fair, objective and non-partisan;

(b) to provide opinion evidence that is related only to matters that are within the expert’s area of expertise; and

(c) to provide such additional assistance as the court may reasonably require to determine a matter in issue.

Duty Prevails

(2) In the case of an expert engaged by or on behalf of a party, the duty in subrule (1) prevails over any obligation owed by the expert to that party.

Court appointed experts

(3) The court may, on motion or on its own initiative, appoint one or more independent experts to inquire into and report on any question of fact or opinion relevant to an issue in a case.

Expert to be named

(4) An order under subrule (3) appointing an expert shall name the expert and, where possible, the expert shall be a person agreed on by the parties.

Instructions

(5) An order under subrule (3) appointing an expert shall contain the instructions to be given to the expert, and the court may make any further orders that it considers necessary to enable the expert to carry out the instructions.

Fees and Expenses

(6) The court shall require the parties to pay the fees and expenses of an expert appointed under subrule (3), and shall specify the proportions or amounts of the fees and expenses that each party is required to pay.

Security

(7) If a motion by a party for the appointment of an expert under subrule (3) is opposed, the court may, as a condition of making the appointment, require the party seeking the appointment to give such security for the expert’s fees and expenses as is just.

Serious Financial Hardship

(8) The court may relieve a party from responsibility for payment of any of the expert’s fees and expenses, if the court is satisfied that payment would cause serious financial hardship to the party.

Report

(9) The expert shall prepare a report of the results of his or her inquiry, and shall,

(a) file the report with the clerk of the court; and

(b) provide a copy of the report to each of the parties.

content of Report

(10) A report provided by an expert shall contain the following information:

1. The expert’s name, address and area of expertise.

2. The expert’s qualifications, including his or her employment and educational experiences in his or her area of expertise.

3. The instructions provided to the expert in relation to the proceeding.

4. The nature of the opinion being sought and each issue in the proceeding to which the opinion relates.

5. The expert’s opinion respecting each issue and, where there is a range of opinions given, a summary of the range and the reasons for the expert’s own opinion within that range.

6. The expert’s reasons for his or her opinion, including,

i. a description of the factual assumptions on which the opinion is based,

ii. a description of any research conducted by the expert that led him or her to form the opinion, and

iii. a list of every document relied on by the expert in forming the opinion.

7. An acknowledgement of expert’s duty (Form 20.1) signed by the expert.

Admissibility

(11) The expert’s report is admissible in evidence in the case.

Cross-examination

(12) Any party may cross-examine the expert at the trial.

Non-application

(13) For greater certainty, subrules (3) to (12) do not apply in respect of,

(a) appointments of persons by the court under subsection 54 (1.2) of the Child and Family Services Act or subsection 30 (1) of the Children’s Law Reform Act; or

(b) requests by the court that the Children’s Lawyer act under subsection 112 (1) of the Courts of Justice Act.

7. (1) Subrule 34 (6) of the Regulation is amended by adding the following paragraph:

1.1 If an access order was made under subsection 58 (1) of the Act,

i. copies of each notice of intention to place a child for adoption (Form 8D.2) or of the notice to child of intention to place for adoption (Form 8D.3) that was sent to a person who was granted an access order,

ii. copies of each notice of termination of access (Form 8D.4) that was sent to a person who was the subject of an access order but was not entitled to bring an application for an openness order,

iii. for each notice,

A. proof of service of the notice in accordance with subsection 145.1.1 (4) of the Act,

B. a copy of an order permitting another method of service under subsection 145.1.1 (5) of the Act and proof of such service, or

C. a copy of an order under subsection 145.1.1 (6) of the Act that notice is not required, and

iv. an affidavit (Form 34G.1) signed by an employee of a children’s aid society stating that,

A. no application for an openness order has been filed, or

B. if any applications for openness orders have been filed, the status of those applications, including details of any openness orders that have been made.

(2) Paragraph 5 of subrule 34 (6) of the Regulation is amended by adding “(Form 35G.1)” after “An affidavit”.

(3) Clauses (b), (c) and (d) of subrule 34 (17) of the Regulation are revoked and the following substituted:

(b) a consent to an openness order under section 145.1 of the Act shall be in Form 34M;

(b.1) a consent to an openness order under section 145.1.2 of the Act shall be in Form 34M.1;

(c) an application to change or terminate an openness order shall be in Form 34N;

(d) an answer to an application for an openness order or an answer to an application to change or terminate an openness order shall be in Form 33B.2;

(e) the notice of intention to place a child for adoption to be served on persons entitled to access, other than the child, shall be in Form 8D.2;

(f) the notice to a child who is entitled to access that he or she will be placed for adoption shall be in Form 8D.3; and

(g) the notice of termination of access to be served on a person who is the subject of an access order and not entitled to bring an application for an openness order shall be in Form 8D.4.

(4) Rule 34 of the Regulation is amended by adding the following subrules:

Service of notice of intention to place a child for adoption

(18) In an application for an order under subsection 145.1.1 (5) of the Act to allow another method of service of the notice of intention to place a child for adoption or of the notice of termination of access (Form 8D.4), or for an order under subsection 145.1.1 (6) of the Act that notice is not required,

(a) the applicant is the children’s aid society;

(b) the respondent is the person who is entitled to have access to, or contact with, the child;

(c) the application shall be made using Form 8B.2 — Application (general) (Child and Family Services Act cases other than child protection and status review);

(d) the application shall be filed in the same court file as the child protection case in which the child was made a Crown ward;

(e) the applicant shall file an affidavit (Form 14A) setting out the facts in support of the order being requested and the clerk shall send the case to a judge for a decision on the basis of the affidavit evidence.

TIMELINES FOR openness applications

(19) Every application for an openness order is governed by the following timetable:

 

Step in the case

Maximum time for completion, from the date the application is filed

Service and filing of answers

30 days

First hearing or settlement conference

50 days

Hearing

90 days

8. (1) The Table of Forms to the Regulation is amended by striking out the following:

 

33B.2

Answer (Child and Family Services Act cases other than child protection and status review)

October 1, 2006

. . . . .

 

34E

Director’s consent to adoption

September 1, 2005

. . . . .

 

34K

Certificate of clerk (adoption)

October 1, 2006

34L

Application for openness order

October 1, 2006

34M

Consent to openness order

October 1, 2006

(2) The Table of Forms to the Regulation is amended by adding the following:

 

8D.2

Notice of intention to place a child for adoption

August 2, 2011

8D.3

Notice to child of intention to place for adoption

August 2, 2011

8D.4

Notice of termination of access

August 2, 2011

. . . . .

 

20.1

Acknowledgement of expert’s duty

August 2, 2011

. . . . .

 

33B.2

Answer (Child and Family Services Act cases other than child protection and status review)

August 2, 2011

. . . . .

 

34E

Director’s consent to adoption

August 2, 2011

. . . . .

 

34 G.1

Affidavit of society employee for adoption of a Crown ward

August 2, 2011

. . . . .

 

34K

Certificate of clerk (adoption)

August 2, 2011

34L

Application for openness order

August 2, 2011

34M

Consent to openness order under s. 145.1 of the Child and Family Services Act

August 2, 2011

34M.1

Consent to openness order under s. 145.1.2 of the Child and Family Services Act

August 2, 2011

Commencement

9. This Regulation comes into force on the later of September 1, 2011 and the day it is filed.

 

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