O. Reg. 346/18: RESTRAINING ORDER APPLICATIONS AND APPEALS

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ontario regulation 346/18

made under the

PREVENTION OF AND REMEDIES FOR HUMAN TRAFFICKING ACT, 2017

Made: April 25, 2018
Filed: April 26, 2018
Published on e-Laws: April 26, 2018
Printed in The Ontario Gazette: May 12, 2018

Restraining Order Applications and Appeals

Contents

 

Interpretation

1. (1) In this Regulation,

“restraining order” means a restraining order under section 4 of the Act; (“ordonnance interdictive”)

“serve” means, in reference to a document other than an order, to serve the document in accordance with section 17 or 18. (“signifier”)

(2) When a form is referred to by number in this Regulation, the reference is to the form with that number that is described in the Table of Forms at the end of this Regulation and is available on the Internet through www.ontariocourtforms.on.ca.

Application of Regulation

2. This Regulation applies in respect of proceedings under Part II of the Act.

Counting days

3. (1) The counting of days in a period of time set out in this Regulation or in an order under Part II of the Act, other than section 11 of the Act, or under this Regulation shall be determined in accordance with this section.

(2) A reference to the number of days between two events excludes the day of the first event and includes the day of the second event, subject to subsections (3) and (4).

(3) If a period of time is less than seven days, Saturdays, Sundays and any other days when all court offices are closed do not count as part of the period.

(4) If the last day of a period of time falls on a day when all court offices are closed, the period of time is extended to include the next day they are open.

Starting an application for a restraining order

4. (1) To start an application for a restraining order, the applicant shall,

(a) file an application for restraining order in Form 1 with the court and obtain a hearing date; and

(b) at least 15 days before the hearing date,

(i) serve the application, together with a blank response in Form 4, on the respondent and, if the victim is not the applicant, on the victim, and

(ii) file proof of service with the court.

(2) Clause (1) (b) does not apply to an application for a restraining order without notice under section 6 of the Act.

(3) An application for a restraining order may be filed in any Ontario Court of Justice location.

Consent to act as applicant on behalf of another person

5. (1) For the purposes of paragraph 3 of subsection 3 (1) of the Act, consent shall be given in Form 2.

(2) The consent shall be filed and, if applicable, served together with the application for a restraining order.

(3) A person who gives his or her consent for the purposes of paragraph 3 of subsection 3 (1) of the Act may withdraw it by filing with the court a withdrawal of consent in Form 3.

(4) A person who withdraws his or her consent before any restraining order is made may, subject to the court’s approval, continue the application for the order by,

(a) continuing in the application as the applicant; or

(b) giving consent in Form 2 for another person to act on his or her behalf as the applicant by,

(i) serving the consent on the other parties and filing it with the court, together with proof of service, or

(ii) if the application was made without notice, filing the consent with the court.

(5) An application that is not continued under subsection (4) is deemed to be withdrawn, unless the court orders otherwise.

(6) Subsections (4) and (5) apply with necessary modifications to the withdrawal of consent after a restraining order is made, in relation to a motion or appeal of an order under Part II of the Act, if the motion or appeal was made or brought on behalf of the person withdrawing his or her consent.

(7) If a motion or appeal of an order under Part II of the Act was not made or brought on behalf of the person withdrawing his or her consent, the court, Superior Court of Justice or Court of Appeal, as the case may be, may make any order it considers appropriate in the circumstances.

Responding to an application with notice

6. (1) A respondent who is served with an application for a restraining order shall,

(a) serve a response in Form 4 on the applicant and, if the victim is not the applicant, on the victim; and

(b) file the response, with proof of service, with the court at least five days before the hearing date.

(2) If a victim is served with an application for a restraining order and wishes to participate in the hearing, the victim shall,

(a) serve a response in Form 4 on the applicant and the respondent; and

(b) file the response, with proof of service, with the court at least five days before the hearing date.

Additional documents

7. (1) The court may require that any additional documents that the court specifies be filed by any of the parties on an application for a restraining order.

(2) A party to the application may, subject to subsection (3), file any additional documents he or she considers appropriate and helpful to assist the court, including a brief statement of the legal argument the party intends to make, case law on which the party intends to rely and additional affidavits (in Form 5).

(3) In the case of an application with notice under section 3 of the Act, the party shall serve each additional document on the other parties and file it, with proof of service, with the court at least five days before the hearing date.

Extension of expiry date

8. (1) For the purposes of subsection 5 (2) of the Act, an applicant or, if the victim is not the applicant, a victim who wishes to extend the expiry date of the restraining order shall, before the expiry of the order,

(a) file a motion in Form 6 with the court that made the order and obtain a hearing date; and

(b) at least 15 days before the hearing date,

(i) serve the motion, together with a blank response to motion in Form 7 and a copy of the restraining order, on the other parties, and

(ii) file proof of service with the court.

(2) A party who wishes to respond to the motion shall,

(a) serve a response to motion in Form 7 on the other parties; and

(b) file the response, with proof of service, with the court at least five days before the hearing date.

Setting aside, varying order made without notice

9. (1) For the purposes of subsection 6 (3) of the Act, a respondent or victim who wishes to set aside or vary a restraining order made on application without notice shall,

(a) file a motion in Form 6 with the court that made the order and obtain a hearing date; and

(b) at least 15 days before the hearing date,

(i) serve the motion, together with a blank response to motion in Form 7 and a copy of the restraining order, on the other parties, and

(ii) file proof of service with the court.

(2) A party who wishes to respond to the motion shall,

(a) serve a response to motion in Form 7 on the other parties; and

(b) file the response, with proof of service, with the court at least five days before the hearing date.

(3) Unless the court orders otherwise, an applicant who wishes to respond to the motion may rely on any document he or she filed in the application for the restraining order.

Material change in circumstances

10. (1) For the purposes of section 7 of the Act, any party to a restraining order who wishes to set aside or vary the restraining order on the basis that there has been a material change in circumstances shall,

(a) file a motion in Form 6 with the court that made the order and obtain a hearing date; and

(b) at least 15 days before the hearing date,

(i) serve the motion, together with a blank response to motion in Form 7 and a copy of the restraining order, on the other parties, and

(ii) file proof of service with the court.

(2) A party who wishes to respond to the motion shall,

(a) serve a response to motion in Form 7 on the other parties; and

(b) file the response, with proof of service, with the court at least five days before the hearing date.

Legal representation of a child

11. The Attorney General is prescribed for the purposes of section 9 of the Act.

Order restricting publication, etc.

12. (1) An applicant, victim or witness who wishes to obtain an order under subsection 10 (2) of the Act in relation to an application for a restraining order with notice under section 3 of the Act shall,

(a) file a motion in Form 6 with the court and obtain a hearing date; and

(b) at least 15 days before the hearing date,

(i) serve the motion, together with a blank response to motion in Form 7, on the other parties, and

(ii) file proof of service with the court.

(2) An applicant, victim or witness who wishes to obtain an order under subsection 10 (2) of the Act in relation to an application for a restraining order without notice under section 6 of the Act shall file the motion with the court.

(3) The court may order that a motion filed under subsection (1) or (2) must also be served on any other person that the court specifies.

(4) A person served with a motion under subsection (1) or (3) who wishes to respond shall, at least five days before the hearing date,

(a) serve a response to motion in Form 7 on the party making the motion; and

(b) file the response, with proof of service, with the court.

Withdrawal

13. A party may withdraw all or part of an application, motion or response by serving a notice of withdrawal in Form 8 on every other party on whom the application, motion or response has been served, and filing it with the court together with proof of service.

How hearings may be held

14. (1) An application or motion may be heard,

(a) in person;

(b) in writing;

(c) by telephone or video conference, subject to subsections (2) and (3);

(d) by a combination of the methods referred to in clauses (a) to (c).

(2) An application or motion may only be heard by telephone or video conference if,

(a) facilities for a telephone or video conference are available at the court location or are provided by a party;

(b) a party files a request for a telephone or video conference with the court and the judge who is to hear the application or motion gives his or her permission; and

(c) in the case of a request made with respect to an application for a restraining order with notice under section 3 of the Act or a motion, the request is filed at least five days before the hearing date.

(3) A party who obtains permission for the application or motion to be heard by telephone or video conference shall,

(a) make the necessary arrangements; and

(b) except in the case of an application for a restraining order without notice under section 6 of the Act, serve notice of the arrangements on all other parties and file it with the court.

(4) This section does not apply to motions for leave to appeal under subsection 11 (3) of the Act.

Form of orders

15. (1) A restraining order shall be in Form 9.

(2) All other orders under Part II of the Act shall be in Form 10.

(3) If a hearing that results in an order is held in person, by telephone or video conference or by a combination of methods, the clerk of the court shall prepare the order, and shall either sign it or arrange for the judge who made it to sign it.

(4) If a hearing that results in an order is held in writing, the judge hearing the application or motion shall,

(a) complete and sign a written copy of the order, noting on its face the time, date and place of issuance; and

(b) cause the order to be filed with the court as soon as possible after the order has been issued.

(5) This section does not apply to orders made on appeal under section 11 of the Act.

Service of orders

16. (1) An order made under Part II of the Act shall be served on each of the parties as soon as possible after it is made, by a method described in clause 17 (1) (a), (b) or (d), subject to subsection (2).

(2) A restraining order shall be served by a method described in clause 17 (1) (a) or (d), if the restraining order was made on application without notice under section 6 of the Act and service of the restraining order is on,

(a) the respondent; or

(b) a child victim who is not the applicant and who did not give consent to the application in accordance with section 5 of this Regulation.

(3) An order shall be served by the sheriff, with the assistance of a police officer if required by the sheriff under subsection 141 (2) of the Courts of Justice Act.

(4) In the case of the service of a restraining order under subsection (2), a sheriff shall, in requiring the assistance referred to in subsection (3), do so in accordance with the protocol established for the purpose by the Deputy Attorney General or a person designated by the Deputy Attorney General.

(5) This section does not apply to orders made on appeal under section 11 of the Act.

Service of other documents

17. (1) Subject to subsections (2) and (3), a document other than an order that is required by this Regulation to be served on a person may be served,

(a) personally;

(b) by leaving a copy of the document at the person’s last known address with someone who appears to be at least 16 years of age and, on the same day or on the next, mailing another copy to the person at that address;

(c) by mail or courier to the address for service shown on the latest document filed by the person or, if none, the person’s last known address;

(d) by leaving a copy with the person’s lawyer of record, if any, or with a lawyer who accepts service in writing on a copy of the document;

(e) by mail or courier to the person’s lawyer of record, if any;

(f) by faxing a copy to the person’s lawyer or, if none, to the person;

(g) by emailing a copy to the person’s lawyer or, if none and the person consents, to the person; or

(h) by depositing a copy at a document exchange to which the person’s lawyer or, if none, the person belongs, as long as the copy deposited and an additional copy of the document are date-stamped by the document exchange in the presence of the person depositing the copy.

(2) Subject to subsection (3), the following documents and any documents that are served together with them may only be served by a method described in clause (1) (a), (b) or (d):

1. An application for a restraining order with notice under section 3 of the Act.

2. A motion to extend the expiry date of a restraining order under subsection 5 (2) of the Act.

3. A motion to set aside or vary an order under subsection 6 (3) or 7 (1) of the Act.

(3) If service is by a respondent on an applicant or a victim, the document may only be served by a method described in clauses (1) (c) to (h).

(4) Service of a document by a method described in subsection (1), as set out in Column 1 of the following Table, is effective on the day set out for that method in Column 2 of the Table:

Table

Column 1 Method of service	Column 2 Effective day of service
Personally (clause (1) (a)) or by leaving a copy with a person’s lawyer of record or other lawyer (clause (1) (d))	On the day the document was left with the person or, if the document was left after 4 p.m., the following day.
By leaving a copy and mailing (clause (1) (b))	On the fifth day after the document is mailed.
By mail (clauses (1) (c) and (e))	On the fifth day after the document is mailed.
By courier (clauses (1) (c) and (e))	On the day after the day the courier picks it up, in the case of same-day courier service, or two days after the day the courier picks it up, in the case of next-day courier service.
By fax or email (clauses (1) (f) and (g))	On the date shown on the first page of the fax or in the email message, or, if the first page of the fax or the email message shows that the document was served after 4 p.m., the following day.
By deposit at a document exchange (clause (1) (h))	On the day after the date on the stamp referred to in clause (1) (h).

 

(5) The court may, on motion without notice, order that service is not required if,

(a) reasonable efforts to locate the person to be served have not been or would not be successful; and

(b) there is no other method that could reasonably be expected to bring the document to the person’s attention.

(6) If a document has been served by a method not allowed by this Regulation or an order of the court, the court may make an order approving the service if the document,

(a) came to the attention of the person to be served; or

(b) would have come to the person’s attention if the person had not been evading service.

(7) Service of a document may be proved by,

(a) an affidavit of service in Form 11;

(b) an acceptance or admission of service, written by the person served or the person’s lawyer; or

(c) the date stamp on a copy of the document served by deposit at a document exchange.

(8) A party whose address for service changes shall immediately serve notice of the change on the other parties and file it, with proof of service, with the court.

Service, court-ordered method

18. The court may permit another method of service in respect of a document if it is satisfied that it would be impractical to serve the document in accordance with section 16 or 17, as the case may be.

General powers of court

19. (1) The court may lengthen or shorten any time set out in this Regulation.

(2) If it is substantially more convenient to deal with an application for a restraining order, or any motion or other step in the application, in an Ontario Court of Justice location other than the one in which the application was filed, the court may, on motion or on its own initiative, order that the application or step be transferred there.

(3) If a person fails to comply with this Regulation, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,

(a) an order for costs;

(b) an order dismissing an application or motion;

(c) an order striking out any application, motion, response or any other document filed by a party;

(d) an order that all or part of a document that was required to be provided but was not, may not be used in an application or motion;

(e) an order that a party is not entitled to any further order from the court in respect of an application or motion, unless the court orders otherwise; or

(f) an order postponing any step set out in this Regulation.

(4) In the case of a failure of a respondent to respond to an application for a restraining order with notice under section 3 of the Act, the court may, in addition to making an order under subsection (3) of this section, deal with the application in the respondent’s absence, in which case, unless the court orders otherwise,

(a) the respondent is not entitled to participate in the application; and

(b) the respondent is not entitled to any further notice of steps in the application, except under section 16 of this Regulation.

(5) If this Regulation does not cover a procedural matter adequately, the court may give directions, and the practice shall be decided by analogy to this Regulation, by reference to the Act, the Courts of Justice Act and, if the court considers it appropriate, the Family Law Rules.

Appeal to the Superior Court of Justice

20. (1) The appeal of an order made by the court under Part II of the Act to the Superior Court of Justice shall be conducted in accordance with rule 38 of the Family Law Rules, as it applies to the appeal of a final order of the Ontario Court of Justice that is not made under the Child and Family Services Act to the Superior Court of Justice, and, for the purpose, the Family Law Rules apply to the appeal with the modifications set out in subsection (2) and any other necessary modifications.

(2) For the purposes of subsection (1),

(a) the time within which a notice of appeal must be served under subrule 38 (5) of the Family Law Rules is 30 days or such later time as may be specified by the Superior Court of Justice, in accordance with subsection 11 (2) of the Act; and

(b) subrule 38 (13), clause 38 (35) (a) and subrule 38 (36) of the Family Law Rules do not apply.

Appeal to Court of Appeal

21. (1) Leave to appeal a judgment of the Superior Court of Justice to the Court of Appeal under subsection 11 (3) of the Act shall be sought in accordance with rule 61.03.1 of the Rules of Civil Procedure and, for the purpose, the Rules of Civil Procedure apply with the following and any other necessary modifications:

1. A reference in rule 61.03.1 to leave being sought from the court shall be read as a reference to leave being sought from a judge of that court.

2. For the purposes of subrules 61.03.1 (6), (10) and (13) of the Rules of Civil Procedure, only one copy of each of the documents must be filed.

(2) Despite subsection (1), section 13 of this Regulation applies to any withdrawal of a motion for leave to appeal.

(3) If leave to appeal is granted, the appeal shall be conducted in accordance with rules 61.04 to 61.16 of the Rules of Civil Procedure and, for the purpose, the Rules of Civil Procedure apply to the appeal with necessary modifications.

Court fees

22. No fees are payable under the Administration of Justice Act with respect to proceedings under Part II of the Act, other than the fees set out in Ontario Regulation 94/14 (Fees for Court Transcripts).

TABLE OF FORMS

Column 1 Form Number	Column 2 Form Title	Column 3 Date of Form
1	Application for restraining order	2018/01
2	Consent to person acting on behalf	2018/01
3	Withdrawal of consent to person acting on behalf	2018/01
4	Response to application for restraining order	2018/01
5	Affidavit (general)	2018/01
6	Motion	2018/01
7	Response to motion	2018/01
8	Notice of withdrawal	2018/01
9	Restraining order	2018/01
10	Order (general)	2018/01
11	Affidavit of service	2018/01

 

Commencement

23. This Regulation comes into force on the later of the day section 15 of Schedule 2 (Prevention of and Remedies for Human Trafficking Act, 2017) to the Anti-Human Trafficking Act, 2017 comes into force and the day this Regulation is filed.

Made by:
Pris par :

Le procureur général,

Yasir Naqvi

Attorney General

 

Date made: April 25, 2018
Pris le : 25 avril 2018

 

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