O. Reg. 250/19: FAMILY LAW RULES
filed July 25, 2019 under Courts of Justice Act, R.S.O. 1990, c. C.43
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made under the
Courts of Justice Act
Made: June 24, 2019
Approved: July 24, 2019
Filed: July 25, 2019
Published on e-Laws: July 26, 2019
Printed in The Ontario Gazette: August 10, 2019
Amending O. Reg. 114/99
(FAMILY LAW RULES)
1. The definition of “special party” in subrule 2 (1) of Ontario Regulation 114/99 is revoked and the following substituted:
“special party” means a party, other than a child party, who is or appears to be mentally incapable for the purposes of the Substitute Decisions Act, 1992 in respect of an issue in the case and who, as a result, requires legal representation; (“partie spéciale”)
2. Subrules 4 (2) and (3) of the Regulation are revoked and the following substituted:
Private Representation of Special Party or Child party
(2) The court may authorize a person to represent a special party or a child party if the person is,
(a) appropriate for the task; and
(b) willing to act as representative.
Public Law Officer to Represent Special Party or Child party
(3) If there is no appropriate person willing to act as a representative for a special party or a child party, the court may, on the consent of the official, authorize the representation of the special party or child party by,
(a) the Public Guardian and Trustee, in the case of a special party; or
(b) the Children’s Lawyer, in the case of a child party.
Court to Consider Represention of Child party
(3.1) The court shall consider what, if any, representation is required for a child party and shall make an order under this rule accordingly.
3. Rule 7 of the Regulation is amended by adding the following subrules:
Restriction on adding child as a party
(5.1) A child who is the subject of a custody, access, child protection, adoption or child support case but is not a party to the case may not be added as a party unless the court orders otherwise.
Additional parties in certain child support cases
(5.2) In a case involving a child party in which a claim is made for support of the child, the court shall order that any persons who may be obligated to provide support for the child and who are not already parties to the case be added as parties in relation to the claim, and may give directions for service on such persons.
4. Subrule 12 (2) of the Regulation is revoked and the following substituted:
WITHDRAWAL — SPECIAL PARTY OR CHILD PARTY
(2) The application, answer or reply of a special party or a child party may be withdrawn (whether in whole or in part) only with the court’s permission, and the notice of motion for permission shall be served on every other party and on,
(a) the Public Guardian and Trustee, in the case of a special party; or
(b) the Children’s Lawyer, in the case of a child party.
5. (1) Clause 17 (8) (a.0.1) of the Regulation is revoked and the following substituted:
(a.0.1) make an order about expert opinion evidence, including,
(i) the engagement of an expert by or for one or more parties,
(ii) the use of expert opinion evidence in a case, or
(iii) the provision, service or filing of experts’ reports or written opinions;
(2) Subrule 17 (19) of the Regulation is amended by adding “or a child party” after “a special party”.
6. Subrule 18 (12) of the Regulation is revoked and the following substituted:
OFFERS INVOLVING SPECIAL PARTY OR CHILD PARTY
(12) An offer may be made, withdrawn or accepted by a special party or a child party, but neither a party’s acceptance of a special party’s or child party’s offer nor the special party’s or child party’s acceptance of another party’s offer are binding on the special party or child party until the court approves.
7. Subrule 20 (6) of the Regulation is revoked and the following substituted:
QUESTIONING SPECIAL PARTY OR CHILD PARTY
(6) If a person to be questioned is a special party or a child party, the court may, on motion, order that someone else be questioned in addition to or in place of the person.
8. Rule 20.1 of the Regulation is revoked and the following substituted:
Rule 20.1: Duty of Experts
Application
20.1 (1) This rule applies to,
(a) a person who is a litigation expert within the meaning of rule 20.2; and
(b) an expert who is appointed by the court under rule 20.3.
Duty of expert
(2) It is the duty of every expert to whom this rule applies to,
(a) provide opinion evidence that is fair, objective and non-partisan;
(b) provide opinion evidence that is related only to matters that are within the expert’s area of expertise; and
(c) provide such additional assistance as the court may reasonably require to determine a matter in issue.
DUTY PREVAILS
(3) In the case of a litigation expert, the duty in subrule (2) prevails over any obligation owed by the expert to a party.
Rule 20.2: Expert Opinion Evidence
Definitions
20.2 (1) In this rule,
“joint litigation expert” means a litigation expert engaged to provide expert opinion evidence for two or more parties; (“expert commun du litige”)
“litigation expert” means a person engaged for the purposes of litigation to provide expert opinion evidence; (“expert du litige”)
“participant expert” means a person who is not engaged to provide expert opinion evidence for the purposes of litigation, but who provides expert opinion evidence based on the exercise of his or her skills, knowledge, training or experience while observing or participating in the events at issue. (“expert participant”)
Expert Witness reports
(2) A party who wishes to call a litigation expert as a witness at trial shall, at least six days before the settlement conference, serve on all other parties and file a report signed by the expert and containing, at a minimum, the following:
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 nature of the opinion being sought and each issue in the case to which the opinion relates.
4. The instructions provided to the expert in relation to the case.
5. The expert’s opinion on 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 or test conducted by or for the expert, or of any independent observations made by the expert, that led him or her to form the opinion, and, for each test,
A. an explanation of the scientific principles underlying the test and of the meaning of the test results, and
B. a description of any substantial influence a person’s gender, socio-economic status, culture or race had or may have had on the test results or on the expert’s assessment of the test results, and
iii. a description and explanation of every document or other source of information directly relied on by the expert in forming the opinion.
7. An acknowledgement of expert’s duty (Form 20.2) signed by the expert.
Same, more than one party
(3) If two or more parties wish to call a joint litigation expert as a witness at trial, subrule (2) applies with necessary modifications.
Supplementary Report
(4) Any supplementary report by a litigation expert must be signed by the expert, and shall be served on all other parties and filed,
(a) at least 30 days before the start of the trial; or
(b) in a child protection case, at least 14 days before the start of the trial.
Documents to Accompany Report
(5) The following documents shall accompany a report when it is served on a party under subrule (2), (3) or (4), unless the documents have already been served on the party:
1. A copy of any written statement of facts on which the litigation expert’s opinion is based.
2. A copy of any document relied on by the litigation expert in forming his or her opinion.
Restriction on Testimony
(6) Unless a judge orders otherwise, a litigation expert may not testify about an issue at trial unless the substance of the testimony is set out in a report that meets the requirements of this rule.
Cross-examination
(7) A joint litigation expert may be cross-examined at trial by any party.
When Joint Litigation Expert Required
(8) Litigation expert opinion evidence concerning the following matters may only be presented by a joint litigation expert:
1. A claim for custody of or access to a child under the Divorce Act (Canada) or the Children’s Law Reform Act, unless the court orders otherwise.
2. Any other matter specified by the court.
Motion for Directions
(9) If parties who wish or are required to engage a joint litigation expert do not agree on a matter relating to the engagement, any one of them may make a motion for directions.
Order re joint Litigation expert
(10) The court may, on motion under subrule (9) or otherwise, make an order engaging a joint litigation expert for two or more parties.
Same
(11) In making an order under subrule (10), the court shall ensure that the matters listed in subrule 20.3 (2) are either set out in the order or are otherwise addressed by the order.
Cooperation
(12) Parties who engage a joint litigation expert, or for whom a joint litigation expert is engaged, shall cooperate fully with the expert and make full and timely disclosure of all relevant information and documents to the expert, and the court may draw any inference it considers reasonable from a party’s failure to do so.
restriction on experts on Same issue
(13) If a joint litigation expert provides opinion evidence on an issue for a party, no other litigation expert may present opinion evidence on that issue for that party, unless the court orders otherwise.
Participant expert
(14) A party who wishes to call a participant expert as a witness at trial shall,
(a) at least six days before the settlement conference,
(i) serve notice of the fact on all other parties, and
(ii) if the party wishes to submit any written opinion prepared by the expert as evidence in the trial, serve the written opinion on all other parties and file it; and
(b) serve on any other party, at that party’s request, a copy of any documents supporting the opinion evidence the participant expert plans to provide.
Application to motions for temporary orders or for summary judgment
(15) Unless the court orders otherwise, this rule applies, with the following modifications, to the use of expert opinion evidence on a motion for a temporary order under rule 14 or a motion for summary judgment under rule 16:
1. Expert witness reports and any supplementary reports shall be served and filed as evidence on the motion in accordance with the requirements of subrules 14 (11), (11.3), (13) and (20), as applicable.
2. Any other necessary modifications.
Rule 20.3: Court-appointed experts
Appointment of expert by court
20.3 (1) 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.
Requirements of order
(2) An order under subrule (1) shall,
(a) name the expert being appointed, who shall be a person agreed on by the parties if possible;
(b) specify the instructions to the expert; and
(c) require the parties to pay the expert’s fees and expenses and specify the proportions or amounts of the fees and expenses that each party is required to pay.
Serious Financial Hardship
(3) Despite clause (2) (c), the court may relieve a party from a requirement to pay any of the expert’s fees or expenses if the court is satisfied that requiring the payment would cause serious financial hardship to the party.
Security
(4) If a motion is made under subrule (1) that is opposed, the court may, as a condition of the appointment, require the party making the motion to give such security for the expert’s fees and expenses as is just.
Additional orders
(5) In making an order under subrule (1), the court may make any further order it considers necessary to enable the expert to carry out the specified instructions, including,
(a) an order for the inspection of property; or
(b) an order under section 105 of the Courts of Justice Act (physical or mental examination of a person), if the requirements of that section are met.
Report
(6) The expert shall prepare a report of the results of his or her inquiry containing, at a minimum, the information listed in paragraphs 1 to 6 of subrule 20.2 (2) and an acknowledgement of expert’s duty (Form 20.2) signed by the expert, and shall file the report with the clerk and provide a copy of it to each of the parties.
Admissibility of report
(7) The expert’s report is admissible in evidence in the case.
Cross-examination
(8) An expert appointed under this rule may be cross-examined at trial by any party.
Non-Application
(9) This rule does not apply to requests by the court that the Children’s Lawyer act under subsection 112 (1) of the Courts of Justice Act or to appointments of persons by the court under,
(a) subsection 30 (1) of the Children’s Law Reform Act (assessment of needs of child); or
(b) subsection 98 (4) or (5) of the Child, Youth and Family Services Act, 2017 (assessment orders).
Exception
(10) Despite clause (9) (a), the report required under subsection 30 (1) of the Children’s Law Reform Act shall contain, at a minimum, the information listed in paragraphs 1 to 6 of subrule 20.2 (2), unless the court orders otherwise.
9. (1) Paragraph 3 of subrule 23 (15) of the Regulation is revoked and the following substituted:
3. The answer or information of a special party or a child party may be read into evidence only with the trial judge’s permission.
(2) Subrules 23 (23), (24), (25), (26) and (27) of the Regulation are revoked.
10. (1) Subrule 25.1 (14) of the Regulation is amended by striking out “a special party or a child under the age of 18 years who is not a party” wherever it appears and substituting in each case “a special party, a child party or a child under the age of 18 years who is not a party”.
(2) Subrule 25.1 (16) of the Regulation is revoked and the following substituted:
ORDER FOR PAYMENT OUT, SPECIAL PARTY OR CHILD
(16) The court may, on motion, order payment out of court of money for or on behalf of a special party or child.
11. Rule 33 of the Regulation is amended by adding the following subrule:
Examination of Expert Evidence on Motions (Voir Dire)
(9) The court shall consider whether a preliminary examination of expert opinion evidence intended to be given on a motion in a child protection case is required in order to determine its admissibility.
12. Clause 42 (5) (b) of the Regulation is amended by adding “or a child party” at the end.
13. (1) The Table of Forms to the Regulation is amended by striking out the row for Form 20.1.
(2) The Table of Forms to the Regulation is amended by adding the following row immediately after the row for Form 20B:
|
20.2 |
Acknowledgement of expert’s duty |
June 1, 2019 |
Commencement
14. This Regulation comes into force on the later of September 1, 2019 and the day it is filed.
Made by:
Pris par :
Family Rules Committee:
Le Comité des règles en matière de droit de la famille :
Helena Likwornik
Family Rules Committee Secretary
Date made: June 24, 2019
Pris le : 24 juin 2019
I approve this Regulation.
J’approuve le présent règlement.
Le procureur général,
Doug Downey
Attorney General
Date approved: July 24, 2019
Approuvé le : 24 juillet 2019