Notice to the Profession and Public Family Law Proceedings

Effective June 10, 2021

Introduction:

The COVID-19 pandemic has created a substantial backlog of court proceedings across Ontario, including family law matters in the Central West Region.  Following a period of consultation, this Notice to the Profession sets out certain practice directions to assist the Central West judiciary in its efforts to provide timely, efficient and more affordable access to justice in Family Law Applications and Motions to Change. Specifically, this Notice will address the greater use of community and other family law resources, comprehensive Case and Settlement Conferences, the limited use of Urgent Motions, more focussed Motions including 14B Motions, enhanced trial planning at Trial Management Conferences; and a focus on resolution at every stage of the proceeding.

Counsel are urged to familiarize themselves with these directions, the March 1, 2021 changes to the Divorce Act and the Children’s Law Reform Act, and ongoing advances in the electronic filing and technology platforms of the Superior Court of Justice.

This Notice addresses the following aspects of Central West family law proceedings:

  1. Greater utilization of Community and other Resources;
  2. Urgent Motions;
  3. Case Conferences;
  4. Regular Motions;
  5. Settlement and TMC Conferences; and
  6. Motions to Change.

1. Greater Utilization of Court-Connected, Community and other Resources

Court support of processes that facilitate early resolution of parenting and financial disputes will create an earlier and better outcome for families and allow for a more efficient use of court resources for those family matters requiring judicial intervention. These include:

  • Summary of local family law resources: Litigants are encouraged to access parenting education programs, mediation, counselling services, supervised contact/parenting time, assisted and virtual contact/parenting time.
  • Mandatory Information Programs (MIP): Judges will ensure that parties attend a MIP at an early stage of the proceeding. Virtual MIPs in Brampton and Orangeville are now linked to Mediation Services, ensuring a smooth transition to mediation, often before the Case Conference.
  • Mediation and DROs: Affordable, court-connected mediation services are available in connection with all SCJ centres. The local Law Associations also have a roster list of mediators. Dispute Resolution Officers (DROs) are available in Brampton (2x/week) and Milton (1x/week).
  • DRO conferences are currently scheduled for first case conferences in Motions to Change in Brampton and Milton. However, where all parties/counsel agree, the court can direct the parties to attend a DRO conference in any family law matter or type of conference. The court encourages parties to utilize this valuable resource. Accessing a DRO conference in any family matter and other type of conferences will be granted by the court upon a written request on behalf of all parties/counsel.

2. Urgent Family Motions

i) Urgent Motions (before a Regular Case Conference):

(a) Without Notice Motions

Very few Urgent Motions without notice should proceed before a Case Conference.

Urgent motions without notice should result in Orders in rare and exceptional circumstances, such as where there is an immediate danger of a child’s removal from Ontario, or where there may be an immediate danger to the health or safety of a child (The Rosen v. Rosen criteria.) Limited financial issues may also meet this threshold (for example: the need for an interim non-depletion order).

If the Urgent Motion is granted, orders on urgent motions without notice must be temporary, for no more than 14 days per FLR 14(14), and must expire on the return date. The order made, the endorsement(s) and the motion materials must be served immediately on the opposing party/counsel. Where such orders are made, the court will attempt to have the motion returnable before the same Judge who made the temporary Order.

If the matter does not meet the test for urgency, the presiding judge will make an order for directions such as: requiring the parties to attend a MIP, if appropriate; mediation; set a timetable for the exchange of pleadings; and schedule the matter for a regular Case Conference.

(b) With Notice Motions

Very few urgent motions, even with notice, should proceed before a Case Conference.

If the matter does not meet the test for urgency, the presiding judge will consider ordering costs against the moving party, require the parties to attend a MIP and, if appropriate, mediation, set a timetable for the exchange of pleadings and schedule the matter for a regular Case Conference.

If the Urgent Motion with Notice does meet the test for urgency, the presiding judge will hear the Motion, make an appropriate order and set a regular Case Conference date.

In appropriate cases, the presiding judge can convert the Urgent Motion with Notice into a Case Conference and then set a date for the Motion.

3. Regular Case Conferences

In Brampton, Milton and Guelph, Case Conferences cannot be adjourned in advance, even with the consent of the opposing counsel/party unless approved by the court or a judge.

With the advent of electronic filing, late filing creates problems for the court staff and the judges. Neither the court staff nor the judicial assistants can or will accept late filings. Requests to late file briefs need to be made to the presiding judge.

Prior to attending at a Case Conference, the Family Law Rules require the parties to confer and discuss the resolution of the issues.

The parties/counsel have a statutory obligation to make reasonable financial disclosure under the Family Law Rules well before the Case Conference. The usefulness of a Case Conference is seriously compromised where the financial disclosure has not been made. Where a party has failed to comply with the disclosure provisions of the Family Law Rules, the Case Conference judge may consider Rule 17(18), which provides for a cost award against the party breaching the Family Law Rules and make an order imposing a peremptory timeline for the outstanding disclosure.

Where the parties/counsel have failed to make proper disclosure or failed to discuss the issues in advance of the Case Conference, the Case Conference judge will determine whether to adjourn the Case Conference or proceed with it. Costs may be awarded against the party who has not complied with the Family Law Rules.

Case Conferences will be scheduled for a one-hour time slot. Provided that the parties have properly prepared for the Case Conference, this will provide the Case Conference judge more time to explore all the issues between the parties. If a further Case Conference is necessary, the court will attempt to schedule it before the same Case Conference judge. A second Case Conference before another judge will be rare.   A second Case Conference should only proceed where the Case Conference judge is satisfied that the circumstances or issues are such that it is reasonable and necessary in the circumstances.

If resolution is not feasible, the primary aim of a Case Conference will be to ensure that the case will be ready for a useful Settlement Conference. The presiding judge at a Case Conference will order a timetable for completion of various steps, such as any outstanding disclosure, order questioning, identify motions to be brought, identify whether expert evidence will be necessary and timetable such expert reports.

Parties are expected to comply with any Timetable Order. Failure to comply with the Timetable Order, may result in cost consequences, striking of pleadings or other remedies.

The Case Conference judge will schedule a Settlement Conference (if not already scheduled). Settlement Conferences will be scheduled well into the future to permit any motions, any ordered disclosure or other steps to be completed prior to the Settlement Conference.  On an appropriate matter, such as a Rule 15 Motion to Change, the Case Conference judge may timetable the matter directly to a long motion date, or a Trial Scheduling Conference.

4. Regular Family Motions

i) 14 B motions

Simple, procedural, consent and known uncontested Orders must be bought by a 14B Motion. A draft Order must be filed with a 14B Motion. Where these are brought on a regular motions list, the motion judge can either direct the party to file the “basket motion” or deal with the motion and consider this a factor in making (or not making) a cost award.

Contested motions (and those anticipated to be opposed or unknown whether they will be opposed) should not be scheduled or heard as basket motions. These motions should be scheduled and heard in a motions court.

Rule 14B motions should rarely be used for making substantive orders (such as parenting, decision-making) except in the clearest of cases.

If no Answer has been filed within the Family Law Rules timelines, an Applicant may seek final Orders on an uncontested trial by 14B Motion (Rule 23(22)). Assuming proper service of the Application was made on the opposing party and documented in the file, notice of an uncontested trial on a defaulting party is not necessary. A draft Form 23 Order must be filed with the Motion.

Nevertheless, it is up to the judge to review the uncontested trial materials and proceed to deal with part or all of the issues as a “basket motion,” or to ask for further submissions or to refer part or all of the matter to a viva voce hearing. A judge may determine whether to direct that notice of either the motion or the uncontested trial record be served on other side, particularly if the materials show the need to hear from that party regarding a parenting or a financial issue.

ii) Short Motions (less than 1 hour)

These will continue in the same manner for scheduling and filing requirements.

There are several significant directions:

  1. Late filing of motion materials cannot or will not be accepted by the court staff or judicial assistants. The request and reasons for late filing of motion materials will have to be addressed to the presiding judge, who will determine whether the motion goes ahead with or without the late-served materials or is adjourned. Adjournments and cost consequences may result.
  2. Parties should canvass what motions are required at the Case Conference and attempt to resolve their interim issues at that time. If they are unable to resolve the interim issues, a motion can be scheduled and timetabled at the conference. The parties should assume they will only be able to bring one oral motion each, pending trial. A second short motion by either party will be discouraged unless the circumstances warrant it. Parties or counsel that bring a second or subsequent motion will require leave, either by bringing a 14B motion in advance, or by seeking leave of the judge before whom they appear. They will be required to address why a subsequent motion is reasonable and necessary in the circumstances of the particular family law proceeding, why was it not dealt with during the prior motion, and whether there have been intervening events or a significant change making the subsequent motion necessary.
  3. If the short motion appears to be a long motion, the motions judge may consider only dealing with one or two issues within 59 minutes or less and send the remaining issues to another motion date.
  4. The motions judge will either ensure a Settlement Conference has already been scheduled or schedule one at that time.

iii) Long Motions

Long Motions must comply with the Central West Region’s Notice to the Profession for Long Motions.

Judges will enforce the Timetables for Long Motions.

5. Settlement and TMC Conferences

i) Settlement Conferences

Each party must file, prior to the Settlement Conference, each of:

  1. A Settlement Conference Brief;
  2. An up-to-date Financial Statement and comparative Net Family Property Statement;
  3. A Certificate of Financial Disclosure; and
  4. An Offer to Settle and Draft Order. Where the opinions of the Office of the Children’s Lawyer’s clinicians or those of other experts, who have delivered a report are likely to be contested at trial, these clinicians and experts should be encouraged to attend or be available for the Settlement Conference.
  5. Where a party fails to do so, adjournments and cost consequences may result.

The Settlement Conference judge will set a date for a Trial Management Conference, if the matter is ready for Trial. If it is not ready, the judge will also make a peremptory Timetable Order directing the parties to complete what remains outstanding for Trial.

No party may schedule a second Settlement Conference without approval of a judge, including the judge hearing the Settlement Conference. If the Settlement Conference judge allows a second Settlement Conference, the court will attempt to schedule it before the same Settlement Conference judge.

ii) Trial Management Conferences

Parties are to serve and file a joint, proposed Trial Scheduling Endorsement Form (TSEF) with their updated Certificates of Financial Disclosure, draft Orders, Opening Statements and Offers to Settle. If a party refuses, is unwilling or fails to cooperate in the preparation of a joint TSEF, each party shall prepare a separate TSEF. When this happens, the Trial Management Conference judge may consider an adjournment and cost consequences as per Rule 17.

If a party has failed to comply with any directions/Timetable Order of the Settlement Conference judge, the Trial Management Conference judge will consider whether to adjourn the Trial Management Conference, proceed and deal with the failure by considering it a factor in deciding costs, or permit a motion under Rule 1(8) for non-compliance with a court order. The Trial Management Conference judge will not leave such issues to be dealt with by the trial judge.

The Trial Management Conference judge will ensure counsel provide and commit to reasonable time estimates for the entire trial.

At the conclusion of the Trial Management Conference, the judge will endorse any additional trial procedural matters, and/or a summary of the issues to be tried, to which the TSEF shall be attached. Subject to the trial judge’s discretion, the endorsement and the TSEF will govern the conduct of the Trial, failing which the remedies set out in the TSEF will be considered. Orders made at the Trial Management Conference are orders and the breach of which may result in serious consequences, such as striking pleadings, exclusion of evidence, and an order of contempt or costs.

In Brampton, the Trial Management Conference judge will set a date for trials less than four days and, where trials are five days or longer, set the matter over to a Trial Assignment Court date. Other centres schedule all family cases to the Assignment Court lists.

6. Motions to Change

The Rule 15 Motions to Change seek variations or reviews of Superior Court of Justice parenting and support Orders. It is important to identify whether the Order(s) sought are pursuant to Section 17 of the Divorce Act or Section 37 of the Family Law Act.

Parties or counsel must clearly identify whether the change sought is a review or a variation, and if it is a variation, whether there has been a material change in circumstances.

Parties to a Motion to Change in Brampton and Milton must first attend a Case Conference before a DRO, unless there is an Order allowing them to waive that attendance. The DRO will confirm that the parties have attended a MIP, attempted mediation and served Rule 18 Offers to Settle, before moving the matter forward. A Form 35.1 Parenting Affidavit must be filed by each parent or any person seeking a contact Order.  The DRO will then schedule a Motion or a Judicial Settlement Conference for any unresolved issues.

If the Motion to Change is a parenting case, parties or counsel must advise whether independent, child-focused evidence is required, such as an assessment or OCL involvement, and if the children’s views and preferences can be ascertained.

FLR 15 (26) permits the court to determine the Motion to Change on a final basis on the material filed unless the judge determines that the issue cannot be properly decided without a trial.  If the presiding judge cannot decide the issues on the Motion to Change properly, without a trial, then the presiding judge will make a timetable Order(s) to get the matter ready for trial and schedule a Settlement Conference.

If the matter does not resolve at the Settlement Conference, the Settlement Conference Judge will schedule the Long Motion or the Trial.

If a matter requires a Trial, a Trial Management Conference may be scheduled.