Notice to the Profession, Parties, Public and the Media

Effective April 19, 2022

This Notice to the Profession, Parties, Public and the Media (“Notice”) applies to all proceedings in the Superior Court of Justice (“SCJ”). It consolidates and supersedes all previous Province-wide Provincial Notices but does not introduce new substantive provisions unless indicated below.  All prior Provincial Notices have been archived in the section “Notices no longer in effect”.

This Provincial Notice is supplemented by Regional Notices.  Counsel, parties, the public and the media should consult the Regional Notices for specific scheduling and Region-specific practices and protocols including the Region’s direction on how the Court’s Guidelines determining the mode of proceeding in Civil, Family & Criminal will be scheduled.

I. PROCEDURES GOVERNING ALL SCJ PROCEEDINGS

1. Gowning

Effective April 19, 2022, counsel must be gowned for any virtual proceeding that, if conducted in person, would require gowning. Unless a Region-specific Notice or Practice Direction states otherwise, counsel are not required to gown for the following court attendances:

  • Trial scheduling court (also known as assignment court, “speak to” court or “purge court”) in family, criminal or civil proceedings;
  • Case conferences, settlement conferences, trial scheduling conferences, trial management conferences, or pre-trials; and
  • Small Claims Court proceedings.

Counsel must be gowned for all other in-person or virtual proceedings. They must do so regardless of whether the presiding judicial official is a judge or an associate judge.

2. Standard document naming protocol

When documents are submitted to the court in electronic format, the document name must be saved as follows:

  1. Document type (including the form number in family cases),
  2. Type of party submitting the document,
  3. Name of the party submitting the document (including initials if the name is not unique to the case), and
  4. Date on which the document was created or signed, in the format DD-MMM-YYYY (e.g. 12-JAN-2021).

For example, documents should be saved as follows:

Expert Report – Defendant – Loblaws Inc. – 13-MAR-2021

Financial Statement Form 13.1 – Respondent – A. Wong – 21-NOV-2021

11b Application – Defence – Nathanson – 12-JAN-2021

Document names shall not include firm-specific naming conventions, abbreviations, or file numbers. Form numbers are only to be included in the names of documents submitted in family cases.

3. Electronically filing materials for Court & Court Fee Payments

A. For Civil and Family: Justice Services Online

Counsel and parties are expected to issue and file their documents electronically, along with any necessary filing fees, by using the Ministry’s Justice Services Online (JSO) platform through the appropriate portal – for Civil use the Civil online filing portals and for Family use the Family online filing portals.  See additional procedures for filing materials for Civil in this Notice here and additional procedures for filing materials for Family in this Notice here.

Once accepted by the court clerk, documents will be considered to have been issued or filed on the date indicated in the document.

Filings must comply with restrictions that have been placed on the length of material that can be submitted in connection with each event, such as limits on the number of pages for an affidavit or conference brief.  Refer to the direction provided in this Notice for Civil here and for Family here and the relevant Regional Notice for these requirements. Filed materials should also include any prior orders or endorsements that were issued and that are relevant to the request(s) being made.

Caselaw and other source materials referenced in factum should be hyperlinked. Where hyperlinks are provided, it will not be necessary to file Books of Authorities.

Filing at the court office remains available for parties who are unable to file documents electronically or for documents that must be filed urgently. The Court will also accept these limited filings by e-mail at the specific e-mail addresses indicated in each Region’s Notice for the following matters:

  • For matters that are urgent, including requests for an urgent hearing
  • Documents that must be filed for a deadline that is no more than 5 business days away.

Unless the court directs otherwise, where counsel and parties deliver materials by email, they must:

  1. retain any documents that were originally signed, certified or commissioned in paper format until the day on which the case is finally disposed of or, if no notice of appeal is served in the case, the time for serving the notice has expired, subject to any requirement in the Family Law Rules to give the document to the clerk before that day; and
  2. promptly make the original document available for inspection and copying on the request of the court or of any party to the case.

For questions on electronic filing, members of the public can call or email the Ministry’s Contact Centre for assistance with the Justice Services Online portal.

JSO Contact Centre information:

Court fees for documents that were filed by email between March 16, 2020 to date can be paid over the phone through a secure credit card transaction. Phone fee payments can also be made for documents that are filed by email pursuant to this Notice and Regional Notices. Court office phone numbers can be found on the Ministry of the Attorney General’s website.

Court fee payments may also be sent by mail or courier to the court office or provided at the court office. Cheque payments must include a letter that indicates the court file number and title of proceeding, identifies the document that was filed by email, date of the email filing, party who filed the document by email and the name of the representative of the party (if any).

Information about requesting a fee waiver can be found in the Ministry of the Attorney General’s Court Fee Waiver Guide and Forms.

B.  For Criminal

All filings for Criminal matters must be emailed to the address(s) located in the Region’s Notice and follow the protocol set out in the Region’s Notice.

 

4. Uploading materials for Court: CaseLines

A. Document Sharing and uploading requirements into CaseLines

CaseLines is now being used for many Superior Court of Justice events.  Where it is being used, after materials are accepted for filing by the court, parties shall upload electronic copies of their documents into CaseLines for review by all participants before and during a court hearing.

If you have received an email from CaseLines inviting you to a case, click the link provided and upload the documents you will rely on for your hearing. Documents must be uploaded at least 5 days in advance of the hearing , or at the same time as any filing deadlines that are less than 5 days as set out by a rule of court or a Regional Notice.

For more information about CaseLines including how to upload documents to CaseLines and tips for using it, see:

CaseLines Tips for Counsel and Self-Represented Parties are available at: https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/supplementary-notice-september-2-2020/caseline-tips/

View and 18-minute Caselines tutorial on how to access, update, invite people and review evidence for cases here.

A link to a demonstration of CaseLines may be accessed here: https://vimeo.com/448576991

B. Parties’ Responsibilities for Civil and Family

To facilitate the effective use of CaseLines, counsel and self-represented parties must do the following:

  1. Email Addresses –Include your current email addresses on all documents that are filed with the court.
  2. Trusted Sender/Junk Folder –Make CaseLines a trusted sender by saving com in your contacts list, or regularly check your junk folder for emails from CaseLines.
  3. Register in the Correct Version of CaseLines (i.e. Ontario) – Upon receipt of an email from CaseLines, click the link for one-time registration. You can also register in advance at https://ontariocourts.caselines.com/by clicking on Register.
  4. Page Limits –Abide by page limits set out in the rules of court, practice directions and Notices to the Profession.  Please split documents larger than 500 pages into multiple documents.
  5. Upload Documents into Hearing Sub-Bundle –After your documents have been accepted for filing by the court office, upload them into the sub-bundle created for the hearing (e.g. Motion sub-bundle, Pre-trial sub-bundle, Trial sub-bundle) at least 5 days in advance of the hearing, or as soon as possible for any filing deadlines that are less than 5 days, unless directed otherwise by Regional Notice. Do not upload documents into the Master Bundle.
  6. Use Document Naming Protocol and Number Your Documents – Use the Court’s Standard Document Naming Protocol when submitting documents to the court in electronic format. Documents are organized in each sub-bundle numerically, so you can control the order in which your documents appear by adding a number at the beginning of the file name (i.e. Factum – Respondent Smith – 01-JAN-2021). If you upload a new document later, add it to the end of your numerical list so that it does not change the CaseLines-generated document and page numbers.
  7. Affidavits of Service –Upload affidavits of service to CaseLines in all family cases. In civil cases, upload affidavits of service only if service is contested or proof of service is necessary for determining the motion (e.g. motions where responding materials were not filed, solicitor removal motions, motions to add a party (defendant), etc.).
  8. Do Not Upload Sealed Documents– Unredacted versions of documents that are or, are proposed to be, the subject of a sealing order should NOT be uploaded into CaseLines. Although the notice of motion for the sealing order can be uploaded, the unredacted document proposed to be sealed must be emailed to the Trial Coordination Office, identifying the case name, court file number and the hearing date (if assigned), together with a request that the document be forwarded to the presiding judge or associate judge as a sealing order is being sought. If the hearing takes place by telephone or videoconference, immediately following the granting of the sealing order, the moving party must enclose an unredacted version of the document in a sealed envelope, append the court order/endorsement to the envelope, and file it in hardcopy at the court office for inclusion in the court file.
  9. Motions for Removal as Lawyer– In motions for removal as lawyer of record under rule 15.04(1.2) and (1.3) of the Rules of Civil Procedure, unredacted motion materials should not be uploaded into CaseLines. Similarly, in motions to remove a lawyer under r. 4 (13) of the Family Law Rules, evidence in support of the motion should not be uploaded into CaseLines. These documents should be emailed to the Trial Coordination Office for delivery to the judicial official, unless a regional practice direction or notice to the profession provides for another method of delivery.
  10. Exhibits – It is counsel’s obligation to upload Exhibits into CaseLines. These documents should be uploaded separately, as the Registrar can only add one electronic exhibit stamp per document.
  11. Participant Information Form –Prior to each hearing, upload into the hearing sub-bundle a completed Participant Information formWhere possible, the moving party for the event is asked to coordinate with other parties to complete one form for the hearing. In criminal matters, each party may upload their own form. The participant information form must also be saved using the court’s document naming convention (e.g. Participant Information – All Parties – 01-JUN-2021 or Participant Information – Applicant Smith – 01-JUN-2021).
  12. Upload Prior Orders and Endorsements –Parties must ensure that all previous orders and endorsements in the case that are relevant at the hearing have been uploaded into the Orders and Endorsements sub-bundle in CaseLines so they can be accessed by the judiciary at future hearings. If neither party is represented by counsel, assistance is available from the filing office to help upload these documents into CaseLines.
  13. Upload Pleadings–Parties must also ensure that all pleadings have been uploaded into the Pleadings sub-bundle in CaseLines. For Family cases, parties must also upload Form 35.1/A affidavits into this sub-bundle so they can be accessed at upcoming events.
  14. Note Any Documents Improperly Uploaded into CaseLines– Parties should identify any documents that have been inappropriately uploaded by opposing parties by making a case note in CaseLines specifying the document/s and why it/they should not have been uploaded. Where a confirmation form is required for the event, any documents that have been improperly uploaded should also be noted on that form.

C. Release of Orders and Endorsements

Where an event was heard using CaseLines, court staff may release orders and endorsements to the parties by uploading them to CaseLines instead of sending them by e-mail, subject to any direction from the presiding judicial official. You can locate these documents by accessing the Orders and Endorsements sub-bundle in CaseLines.

CaseLines will automatically alert parties to changes that occur in a bundle, for instance if a party uploads material or if the court uploads an order or endorsement following the event. These notifications are sent from noreply@caselines.com to the email address of all parties with access to the bundle. Staff provide this notification feature to parties when they are first invited into the case file. Please be sure to save noreply@caselines.com as a safe sender in your email settings.

D. Access and Use of CaseLines in Criminal

In criminal matters, CaseLines access will be limited to the judiciary, court staff, lawyers and their necessary Crown and defence staff requiring access.

Counsel are prohibited from inviting their clients/accused persons to access CaseLines.

Counsel are required to make other arrangements to share documents, as appropriate, with their clients.

No Criminal matters involving self-represented persons will use CaseLines.

E. Items that should not be uploaded onto CaseLines in Criminal

No materials related to child pornography.

No document referring to a confidential informant.

Unless specifically directed by the court to do otherwise, Crown and defence counsel will not upload the following documents into CaseLines:

  • a sealed document
  • a document for which a sealing order is sought
  • a privileged document, or a document where privilege is being asserted
  • Any other document where counsel have concerns, until judicial direction is given. If counsel have concerns about uploading any specific item, they should seek the direction of the Court at a judicial pretrial. Counsel should ensure that this direction is placed on the record at the subsequent court appearance to be endorsed on the indictment or other written record by the Registrar.

F. Implementation of CaseLines in each Region

Events in Civil: to confirm which events in Civil require uploading into CaseLines in each Region see the Civil section in this Notice here.

Events in Family: to confirm which events in Family require uploading into CaseLines in each Region see the Family section in this Notice here.

Events in Criminal: to confirm which events in Criminal require uploading into CaseLines in each Region see the Criminal section in this Notice here.

G. Help with CaseLines: Ministry of the Attorney General – JSO Contact Centre

Members of the public can call or email the Ministry’s Contact Centre for assistance with CaseLines.

JSO Contact Centre information:

5. Orders: Civil & Family

Judgments, endorsements and orders of the Court are effective as of the date they are made, unless the judgment, endorsement or order states otherwise.

Where a draft order is filed online for issuing and entering, the registrar can electronically issue the order and email it to the requestor. Attending the courthouse to have an order issued and entered in person is not recommended unless it is time-sensitive, such as a family law restraining order, or an issued order is needed to commence an appeal.

Please note that an issued and entered order is required for the purpose of an appeal to the Court of Appeal for Ontario or an appeal to the Divisional Court Branch of the Superior Court of Justice.

6. Communicating with Court, Staff and Trial Coordinators

Counsel and self-represented persons shall not communicate directly with a judge, unless the court directs otherwise. Instead, they may communicate with the court filing and trial coordination offices by email pursuant to a Region’s Notice.

When communicating by email with court filing and trial coordination offices, counsel and self-represented parties should:

  1. Include the following information in the subject line:
    • LEVEL OF COURT (SCJ)
    • TYPE OF MATTER (Criminal, Family, Civil, Commercial List, Estates)
    • FILE NUMBER (indicate NEW if no court file number exists)
    • ORIGINATING COURT LOCATION
    • TYPE OF DOCUMENT (e.g., Motion, Conference Brief, Other Request)
    • STYLE OF CAUSE
    • DATE OF EVENT
  2. Include in the body of the email the following information if applicable:
    • court file number (if it is an existing file)
    • style of cause
    • date of event
    • short title of proceeding
    • list of documents attached (note: attachments cannot exceed 35 MB)
    • type of request
    • name, role (i.e. lawyer, representative, party, etc.,) and contact information of person submitting the request (email and phone number)
    • all parties should be copied on emails sent to the court.

7. Virtual Hearings

A. Preparing for your virtual hearing

To ensure the virtual hearing runs smoothly, please see the Court’s guidance to help with your preparation in advance of the hearing, including testing your internet connectivity here:

Link to the SCJ Best Practices for Remote Hearings and the Virtual Courtroom Etiquette Rules.

You may also find guidance in the Best Practices for Remote Hearings, Second Edition prepared by the Joint E-Hearings Task Force, However, the guidance in these Best Practices is subject to the discretion of the judge hearing the matter and to the direction in this consolidated Notice, Practice Directions and Regional Notices as applicable.

B. Virtual Courtroom Etiquette Rules

All participants and members of the public that attend a virtual court proceeding must conduct themselves as if they were physically in the courtroom.  We ask all individuals participating in virtual court proceedings to continue to observe the following well-established rules of court decorum which can be found here: Virtual Courtroom Etiquette Rules

C. Public and media access to SCJ Virtual Hearings

The SCJ remains committed to the open court principle regardless of whether the hearing is conducted virtually or in-person.

Any member of the media or the public who wishes to hear/observe a remote proceeding may email their request to the local courthouse staff in advance of the hearing. The person requesting access should advise of the hearing they wish to hear/observe, and their contact information.

Every effort will be made to provide the requestor with information on how they may hear/observe the proceeding, however, the request may be reviewed by the court.  Additionally, certain proceedings are closed to the media and public by legislation or court order.

D. Recording and other illegal conduct during a virtual hearing

Participants and observers shall not record, take photos, screen capture or broadcast any part of a Court proceeding unless it is expressly authorized by the presiding judicial official.  It is an offence under section 136 of the Courts of Justice Act and you may also be charged with an offence under the Criminal Code, if you record, photograph, screen capture, publish, broadcast (or live stream) any part of a court proceeding without the express permission of the presiding judicial official.

Other conduct during the course of a virtual court hearing may be an offence under the Criminal Code or may constitute contempt of court, for example, racist comments or threats to harm a person or justice participant written in the Chat function during the course of a hearing.

8. Access to digital recordings and transcripts of SCJ hearings

All requests for access to court recordings should follow the procedures outlined in paragraphs 67 to 94, in Part VI(C) of the Consolidated Provincial Practice Direction.

A request for an official transcript of a court proceeding may be made by accessing the information and following the procedure set forth on the Ministry of Attorney General website for Court Transcripts:

https://www.attorneygeneral.jus.gov.on.ca/english/courts/court_transcripts.php.

If the authorized court transcriptionist is unable to access the recording to make a transcript, you may make a motion to the judge to ask that access be granted.

 

II. ADDITIONAL PROCEDURES GOVERNING CIVIL MATTERS

1. Electronically filing materials for Court for Civil Matters:

In addition to the general instructions in this Notice above on electronically filing materials with the Court here, counsel and parties are expected to issue and file their documents, along with any necessary filing fees, electronically by using the Ministry’s Justice Services Online (JSO) platform, including the Civil online filing portals, in accordance with the Rules of Civil Procedure or as directed in each Region’s Notice.

2. Requirement for CaseLines: Regional implementation

The status of CaseLines expansion for Civil matters is as follows:

(i) Toronto: Subject to a judicial order or endorsement, all scheduled Civil events will use CaseLines.

(ii) East Region: CaseLines is being used for Civil long motions, pre-trials, and trials;

(iii) Northwest Region: Subject to a judicial order or endorsement, all scheduled Civil events will use CaseLines with the exception of Assignment Courts and Motions Court..

(iv) Central East Region: CaseLines is being used for Civil long motions, pre-trials and trials;

(v) Central South Region: CaseLines is being used for Civil long motions, pre-trials, and trials;

(vi) Central West Region: Subject to a judicial order or endorsement, all scheduled Civil events will use CaseLines with the exception of Assignment Courts;

(vii) Northeast Region: Subject to a judicial order or endorsement, all scheduled Civil events will use CaseLines.

(viii) Southwest Region: CaseLines is being used for Civil regular and long motions, pre-trials, and trials.

3. Help with JSO filing & CaseLines: Ministry of the Attorney General

Members of the public can call or email the Ministry’s Contact Centre for assistance with the Justice Services Online portal and CaseLines.

JSO Contact Centre information:

4. Email Processes for Estate Certificates (Probate)

Applications for probate certificates, including an application for a certificate of appointment of estate trustee or an application for a small estate certificate or amended small estate certificate, and supporting and responding documents, may be filed electronically by email to the Superior Court of Justice at the email address for the court location set out at the following link: https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/consolidated-notice/email-probate/.

Where email is used to file documents in probate applications, the following requirements must be met:

(i) Applicants must complete an Information Form and email it to the court together with the probate application. The application form and supporting documents (affidavits, consents, proof of death, renunciations, draft certificates, motions) should be submitted by email only.

(ii) The subject line of the email sent to the court must indicate the acronym for the court, the area of law, court file number (if any), and type of document, as set out in the examples below:

SCJ – ESTATES – ES-1234567 – Application for Certificate of Appointment of Estate Trustee

SCJ – ESTATES – new file – Application for Certificate of Appointment of Estate Trustee

(iii) Each email sent to the court, including attachments, must not exceed 35 MB.

(iv) Document attachments must be in PDF format.

(v) Each PDF attachment must contain only one court form and must be saved with name that specifies the court form number and type of document (e.g. Form 74.10 Affidavit of Condition of Will)

(vi) Original documents filed in support of the application (e.g. wills, codicils, bonds, ancillary certificates) and certified copies must be filed in hard copy by mail or courier to the Superior Court of Justice location where the application was filed or provided at the court office.

(vii) Estate administration tax payments must also be sent by mail or courier to the court office or provided at the court office. Filing fees, if any, may be paid by mail, courier or secure credit card transaction over the phone. Contact information for court locations can be found on the Ministry of the Attorney General’s website.

(viii) Probate certificates will be electronically issued and delivered by email to the address provided by the applicant.

If court staff advise that documents emailed to the court require correction, the corrected versions can be sent to the court by email. If additional documents are needed to complete the application, then court staff will advise which ones can be emailed and which ones need to be provided in hard copy.

The above process for emailing documents to the court does not apply to documents filed in estate litigation cases. Estate litigation documents should continue to be filed through the Civil online filing portals.

5. Guidelines to Determine Mode of Proceeding in Civil

Please see Regional Notices for scheduling protocols related to the application of the following presumptive guidelines including scheduling processes related to requests for changes in the presumption.

A. Over-arching principles in the application of the presumptive guidelines

These guidelines set out presumptive methods of attendance for events in Superior Court of Justice proceedings.  In applying these guidelines, the Court will take into account the following general principles:

  1. Discretion of the Court:

While presumptions for each event set out the default position of the Court, the final determination of how an event will proceed will remain subject to the discretion of the Court.  This will take into account the issues in the proceeding, the expected length of the hearing, the evidentiary record, the status of parties (e.g. self-represented litigants) and access to technology (including virtual capacity at institutions and courthouses).

  1. Rule 1.08:

Rule 1.08 of the Rules of Civil Procedure sets out the procedure for the moving party to specify the proposed method of attendance at a hearing or other step in a proceeding.  The moving party and responding party/parties are to refer to these guidelines which set out the general expectations of the Court regarding the method of attendance.

  1. Access to justice:

While virtual platforms to conduct proceedings remotely have enhanced access to justice for many, the Court also recognizes that there are significant variations in the abilities of litigants to access and use the technology that is required for virtual hearings.  Until such time as there is a means to provide access to technology to those who do not have it so that they can fully participate in a remote hearing, the Court will take this access issue into account when determining the appropriate mode of proceeding.  In that respect, if remote proceedings are utilized, the needs of all participants must be met so they can fully and equally participate.

  1. Self-represented litigants:

While the Court’s determination of the appropriate mode of proceeding will necessarily take into account the ability of litigants to access and effectively use technology for virtual hearings, the Court will also consider other circumstances uniquely related to self-represented litigants.  Issues such as the inability to obtain timely assistance from duty counsel and court staff, needing support to use technology or the inability to adequately address issues in writing may mean that in proceedings involving a self-represented litigant, Courts may favour an in-person mode of proceeding.

  1. In-person hearings important:

While the continued use of virtual proceedings increases efficiency at many stages in the litigation process, the Court also recognizes the importance of in-person interaction and hearings for more substantive attendances.  For these matters, in-person advocacy and participation will remain an essential feature of our justice system.

  1. Hybrid options:

In determining the mode of proceeding and the application of the guidelines, the Court will also take into account whether some parts of a proceeding should be conducted virtually and other parts conducted in person.  In other words, hybrid options will be considered where appropriate or necessary.

  1. Impediments to a virtual hearing:

There may be statutory, security or other impediments to having a remote hearing in certain matters, particularly criminal cases, civil contempt hearings and other matters that deal with sensitive information (e.g. child protection cases). Moreover, a party’s or participant’s personal circumstances (e.g. disabilities or caregiver responsibilities) may make remote hearings less suitable.

B. Terms used in the guidelines

“Virtual” = proceedings using a platform like Zoom video or audioconference or by teleconference.

“Hybrid” = proceedings in which some justice participants are appearing physically in the courtroom and others are participating virtually.

“In-person” = all parties, counsel and the judge are physically in the courtroom.

“Videoconference or audioconference” = connecting into a proceeding using a platform like Zoom through video and audio or audio only.

“Teleconference” = connecting into a proceeding via a telephone number to a landline.

C. Presumptive guidelines to determine mode of proceeding in civil matters

The following guidelines set out the Court’s expectations for the default method of appearance for all civil events that will be applied across the province.  However, the Court also recognizes that some Regions, in particular the Northwest, Northeast and those with circuiting judges, will require greater flexibility in hearing more cases virtually.

  1. Case conferences:

All case conferences will be held virtually (by videoconference or audioconference or by teleconference) unless the Court specifies a different method of attendance.

  1. Pre-trial conferences involving trial management and scheduling issues only:

All pre-trial conferences involving trial scheduling issues only will be held virtually (by videoconference or audioconference or by teleconference) unless the Court specifies a different method of attendance.

  1. Pre-trial conferences: settlement and trial management conferences:

All pre-trial conferences directed at settlement or both settlement and trial management will be held virtually (by videoconference or audioconference or by teleconference) unless the Court directs that an in-person pre-trial conference is required.

  1. Trial and motion scheduling court:

All trial and long motion scheduling court appearances will be held virtually (by video conference or audioconference or by teleconference) unless the Court specifies a different method of attendance.

  1. Consent motions, without notice motions and unopposed motions:

All motions on consent of both parties, all motions without notice and all motions that are unopposed will be held in writing unless the Court specifies a different mode of proceeding.

  1. Contested motions and applications:

All contested motions (short or long) and all contested applications will be held virtually unless a party requests that it be held in person and the Court agrees or the Court directs that it will be held in person.  In directing that the contested motion or contested application be held in person, the Court will take into account the positions of the parties; the complexity of the legal or factual issue; whether the outcome of the motion or application is legally or practically dispositive of a material issue in the case (e.g. summary judgement); whether viva voce evidence will be heard; and any other factor bearing on the administration of justice.

  1. Examinations for discovery:

All examinations for discovery will be held in person, unless the parties consent to it being conducted virtually or unless the Court specifies a different mode of proceeding.

  1. Mandatory mediations:

All mediations will be held in person, unless the parties consent to it being conducted virtually or unless the Court specifies a different mode of proceeding.

  1. Judge-alone trials:

All judge-alone trials will be held in person unless all parties consent to a virtual trial and the Court approves.  The Court may consider the option of a hybrid proceeding and whether a witness, at the request of either party, may be permitted to testify virtually by videoconference.

  1. Jury trials:

All civil jury trials will be held in person.  The Court may consider the option of a hybrid proceeding and whether a witness, at the request of either party, may be permitted to testify virtually by videoconference.

  1. Assessment hearings:

All assessments for solicitor fees or judge-referred orders for assessment of costs will be held virtually (by videoconference).

  1. Costs:

All motions for costs will be held in writing or as the Court directs.

  1. Motions for leave to appeal to the Divisional Court:

All motions for leave to appeal to the Divisional Court will be held in writing unless the Court specifies a different mode of proceeding.

  1. Appeals to the Divisional Court and applications for judicial review:

All appeals and applications for judicial review in Divisional Court will be held in person, unless all parties consent to it being heard virtually and the Court agrees or the Court decides that the appeal or application should be conducted virtually.

 

III. ADDITIONAL PROCEDURES GOVERNING FAMILY MATTERS

1. Restrictions on materials filed & Electronically filing materials for Family

A. Restrictions on Materials Filed

Focused materials help facilitate a focused hearing.  Unfortunately, many filings include unfocused material with unnecessarily voluminous attachments.  Litigants are directed to prepare material that is focused and includes only the supplementary documents that are needed to facilitate a resolution of the outstanding issues.

Conferences

Conference materials must comply with the following requirements:

  1. Case conference briefs shall not exceed 8 pages, plus permissible attachments (as defined below) and additional documents that are required below or by the Family Law Rules. This 8 page limit only includes the brief itself (Form 17A) and any additional pages of facts and/or arguments that are attached to the brief as an appendix or schedule;
  2. Settlement conference briefs shall not exceed 12 pages, plus permissible attachments (as defined below) and additional documents that are required below or by the Family Law Rules.  This 12 page limit only includes the brief itself (Form 17C) and any additional pages of facts and/or arguments that are attached to the brief as an appendix or schedule;
  3. Pursuant to subrule 17(13)(4), trial management conference briefs should not be filed in advance of a trial management conference.  Instead, litigants must file the completed trial scheduling endorsement form and additional documents in accordance with this rule;
  4. In preparing conference briefs, litigants may remove portions of the form that are not applicable to their situation (for example, the parenting sections where there are no parenting issues in dispute);
  5. Permissible attachments should only include relevant excerpts from the following documents, which are not included in the above page restrictions:
    1. Parenting assessments (pursuant to Section 30 of the Children’s Law Reform Act), Office of the Children’s Lawyer reports and Voice of the Child Reports;
    2. Documents that establish a child’s educational needs (for example, report cards or Individual Education Plans);
    3. Lists of any disclosure that remains outstanding;
    4. Income or business valuations, pension valuations or real estate appraisals (where the value of property is in dispute);
    5. Proof of income for the relevant period(s) including pay stubs, confirmation of benefits received and/or Statement of Business or Professional Activities from a party’s Income Tax Return; and,
    6. Domestic contracts, including separation agreements, marriage contracts or cohabitation agreements that are relevant to the issues in dispute.
  6. In addition, the parties should include with their materials:
      1. Previous orders and/or endorsements that are relevant to the issues that are to be addressed at the event;
      2. Support calculations; and,
      3. Terms of recognizance, police reports or reports from the Children’s Aid Society, where applicable.

    These documents are also not included in the above page restrictions.

  7. Litigants must not include as attachments voluminous texts, emails and/or social media postings. Instead, only the relevant and necessary excerpts from these communications should be referred to in the conference brief itself;
  8. Litigants must also file additional documents that are required by the Rules, including Financial Statements, Net Family Property Statements/ Comparative Net Family Property Statements, litigation expert reports and Offers to Settle.

Motions

For short or regular motions, each party is restricted to one primary affidavit in support of their position on the motion and cross-motion (if applicable) which shall not exceed 12 pages of narrative.  If a party also intends to rely on an affidavit that has been previously filed with the Court, the length of that affidavit is included in the 12 page limit. This limit does not include third party and reply affidavits, where required, which shall not exceed 5 pages each, or affidavits relating to a party’s financial statement in accordance with Rule 13(12)(b).

In addition, exhibits to each party’s affidavit shall be limited to only the necessary and relevant evidence and are generally expected not to exceed 10 pages. Litigants shall not include voluminous texts, emails and/or social media postings.  Instead, only the relevant and necessary excerpts from these communications should be attached as exhibits.  The documents that are referred to in paragraph 5 above should also be filed (where applicable) and are not counted in these page limits.

Parties should also file the documents referred to in paragraphs 6 and 8 above for all regular motions, if applicable (with the exception of Offers to Settle which should not be included with motion materials).  If attached as an exhibit to an affidavit, these documents are also not counted in the page limits above.

Pursuant to a Regional Notice, additional restrictions may apply to the length of a factum or summary of argument, where required.  These restrictions do not apply to long motions for summary judgment or hearings with respect to the wrongful removal or retention of a child.  Additional direction regarding the materials that may be filed for these events may be included in the applicable regional Notice.

In addition, without exception, all documents filed for a family conference or motion must be prepared using a font size of no less than 12 point and double spacing.

Leave is required to file material beyond what is permitted above which will only be granted in exceptional circumstances.  For motion materials, leave should be sought at the case conference.  Unless approval has been obtained in advance or a Regional Notice permits otherwise, material that is filed in excess of these restrictions will not be reviewed by the presiding judge and may result in an adjournment.

To assist the Court in finalizing family orders more quickly, litigants should also provide a draft order that lists the specific relief that they are seeking with reference to the appropriate legislative authority in accordance with the new Form 25 Order (General).  References to legislation that do not apply can be removed. Sample order clauses that can be used in the preparation of draft orders are available at: http://ontariocourtforms.on.ca/en/family-law-rules-forms/standard-clauses/. A sample draft order is attached as Appendix A

B. Further direction for electronically filing materials for Family matters:

In addition to the general instructions in this Notice on electronically filing materials with the Court here, counsel and parties are expected to issue and file their documents, along with any necessary filing fees, electronically by using the Ministry’s Justice Services Online (JSO) platform, including the Family online filing portals which is authorized to accept the electronic filing of most documents in a family law or child protection case, along with any necessary filing fees, except for the documents that should be emailed directly to the court.

In addition, court documents relating to a simple or joint divorce applications may continue to be filed electronically by using the Ministry’s Family online filing portals in accordance with the Family Law Rules.

Parties are reminded of the importance of ensuring that previous orders and endorsements are available to the judge at each event.  If CaseLines is not being used for the event, counsel and the parties are asked to submit copies of these documents via the Family online filing portals.

To help address any disputes regarding what material has been accepted for filing, parties are asked to retain the most recent copy of the confirmation of filed documents that they receive with the Ministry email confirming acceptance of the filings so that it can be uploaded into CaseLines at the judge’s request.

2. Requirement for CaseLines: Regional implementation

The status of CaseLines expansion for Family matters is as follows:

(i) Toronto: Subject to a judicial order or endorsement, all scheduled Family events will use CaseLines. This does not include child protection appeals or family cases subject to a sealing order.

(ii) East Region:  CaseLines is being used for Family long motions and trials, in addition to family settlement conferences in Ottawa.

(iii) Northwest Region:  Subject to a judicial order or endorsement, all scheduled Family events will use CaseLines with the exception of Assignment Courts and Motions Court.. This does not include child protection appeals or family cases subject to a sealing order.

(iv) Central East Region: Family long motions, case conferences and trials.

(v) Central South Region: Family long motions, trials, and settlement conferences.

(vi) Central West Region: Subject to a judicial order or endorsement, all scheduled Family events will use CaseLines with the exception of Assignment Courts. This does not include child protection appeals or family cases subject to a sealing order.

(vii) Northeast Region: Subject to a judicial order or endorsement, all scheduled Family events will use CaseLines. This does not include child protection appeals or family cases subject to a sealing order.

(viii) Southwest Region: Family case conferences, settlement conferences, and trial management conferences.

3. Help with JSO filing & CaseLines: Ministry of the Attorney General

Members of the public can call or email the Ministry’s Contact Centre for assistance with the Justice Services Online portal and CaseLines.

JSO Contact Centre information:

For litigants without access to the necessary technology, assistance is also available through the court filing office.

4. Financial Disclosure

Family litigants are expected to exchange full and frank financial disclosure as early as possible in the case to avoid unnecessary delay and expense.  It is the Court’s expectation that all reasonable efforts will be made to provide this disclosure to the other party in advance of the case conference.

If disclosure cannot be resolved despite these efforts, the party seeking that disclosure must include in their materials a list of the outstanding disclosure in accordance with Rule 13(11.01).

Costs may be awarded pursuant to Rules 17(18) or 24(7) where a party has failed to comply with their disclosure obligations in accordance with the applicable legislation or the Family Law Rules.

Disclosure issues should be addressed in advance of the settlement conference.  Any necessary motions for disclosure must be heard in advance of the settlement conference.

5. Requirements to Confer in Advance of a Conference:

In accordance with Rules 17(3.1, 3.3 and 4.2) of the Family Law Rules, to ensure that each conference is as productive as possible, in advance of each conference, each party shall confer or, if unable to do so, make best efforts to confer with every other party about (i) each party’s outstanding requests for financial disclosure, (ii) any other procedural matters that need to be addressed; and (iii) a resolution of the outstanding issues, unless the parties are prohibited from such communication by court order or terms of recognizance, or there are concerns about family violence and the alleged abusive party is not represented by counsel.

It is expected that the parties will be able to identify any areas of agreement arising from these discussions at the outset of each conference.

Legal Advice

It is recommended that self-represented litigants seek legal advice in advance of court attendances to help understand the law and how it applies to their circumstances.  For litigants with modest incomes, assistance may be available from Legal Aid Ontario (1-800-668-8258 or www.legalaid.on.ca/services/family-legal-issues/) or the virtual Family Justice Centre (Pro Bono Students Canada).  Legal assistance may also be available at reduced rates through lawyers that are associated with JusticeNet (www.justicenet.ca/how-to-find-a-professional/). Family law services are also available on an unbundled basis from lawyers across Ontario through the Family Law Limited Scope Service project (www.familylawlssp.ca).

In Unified Family Court locations, assistance may also be available on the day of court from Duty Counsel.  Litigants who may qualify financially are encouraged to contact Legal Aid Ontario (1-800-668-8258 or www.legalaid.on.ca/services/family-legal-issues/) in advance to request these services.

6. Confirmation Forms

It is the Court’s expectation that parties will communicate with each other in advance of completion of the confirmation form, unless the parties are prohibited from such communication by court order or terms of recognizance, or there are concerns about family violence and the alleged abusive party is not represented by counsel, with respect to:

  • The event itself, in terms of the time needed, and the material that should be reviewed by the judge;
  • Any outstanding procedural issues including disclosure requests; and,
  • The issues that are to be addressed at the upcoming event, including a potential resolution of those issues on a temporary or final basis.

When completing the confirmation form for a motion or conference, parties shall list the specific issues that need to be addressed at the event.

7. Early Judicial Intervention and Procedural Direction

In many family cases, access to an early attendance before a judge can help the parties to (i) attempt to put temporary arrangements in place to avoid the need for a motion or other urgent attendance; and, (ii) obtain procedural directions including determining what the next step should be and whether any part of the case needs to be expedited.  In many centres in Ontario, these issues can be canvassed at a case conference within a month and a half of the start of the case.

Where caseload pressures and backlogs do not allow the Court to provide early access to a case conference, several regions are providing an opportunity for litigants to seek the Court’s assistance to address these limited issues at an early, brief attendance (e.g. 15-20 minutes).   Notices to the Profession in these regions will provide further direction regarding:

  • The availability of these attendances;
  • The limited materials that can be filed for these attendances;
  • Limits that apply to the number of issues that can be raised at these attendances, if any; and,
  • How these attendances should be scheduled.

The Court, counsel and the parties must take a more proactive approach to controlling the trajectory of family cases.  Counsel and the parties are encouraged to seek procedural direction at any subsequent attendances pursuant to rules 1(7.2) and 17(8), which authorities should be used to address specific roadblocks (e.g. financial disclosure) and also to ensure the most proportionate process for the case.  In some circumstances, where resolution efforts are proving unsuccessful, this can include requests to move the matter to conclusion by way of a trial or other hearing.

8. Restrictions on Adjournments

In several regions, events in family cases are routinely being adjourned on short notice.  This limits the Court’s ability to use the available time and, as a result, its ability to offer timely events.

For this reason, a few regions have specific policies that require permission for adjournments, even on consent.  Even where such regional policies do not exist, it is the Court’s expectation that matters will not need to be adjourned because counsel and/or litigants have not spoken ahead of time and/or taken the necessary steps for the matter to be able to proceed as scheduled.  Where a matter is adjourned because a party is not prepared, the Court may make a costs order against that party pursuant to subrules 17(18) or 24(7).

9. Straight to a combined Case/Settlement Conference pathway

Recognizing that many separating families will attempt another form of dispute resolution prior to seeking relief from the Court, requests can now be made to obtain the Court’s permission to move directly to a combined case conference/settlement conference as the first step in the case.  Rule 17(7.1) allows parties to make this request after they have tried to resolve the issues that are in dispute through mediation or Legal Aid Ontario settlement conference provided they are able to confirm that:

  • There are no outstanding temporary issues; and,
  • Neither party is seeking disclosure from the other party.

These requests can be made by filing a 14B Motion Form along with the Form 17G: Certificate of Dispute Resolution from each party that addresses the above requirements.

If permission is granted, the parties will be expected to comply with all requirements relating to a settlement conference, including the filing of a Form 17C: Settlement Conference Brief and any additional documentation (for example, a Net Family Property Statement/Comparative Net Family Statement/litigation expert reports/Offers to Settle).

In addition to requests that are made pursuant to Rule 17(7.1), pursuant to this Notice, where both parties consent to this process, they can request the Court’s permission to proceed directly to a combined case conference/settlement conference where they have participated in another dispute resolution process (for example collaborative family law) and also (i) there are no outstanding temporary issues and (ii) neither party is seeking disclosure from the other party.  These requests should be made by filing Form 14B and a Form 17G from each party with any necessary revisions.

10. Early Organization of Long Motions

Last minute adjournments of long motions must be avoided so that court time is not wasted.

Parties are strongly encouraged to file materials for long motions in advance of the regular timelines under the Family Law Rules so that these motions can proceed as scheduled. Where possible, these timelines should be addressed at the case conference.  Regional Notices may also include timelines for the filing of materials and confirmation of a long motion.

Regions that do not yet have protocols in place to ensure that these events can proceed at the scheduled time have been encouraged to introduce them in their Notices to the Profession.

11. Mediation and Other Court-Connected and Community Resources

Court supports and processes that facilitate early resolution of parenting and financial disputes creates earlier and better outcomes for families and allows for a more efficient use of court resources for the family cases that require more extensive judicial intervention. These include:

  • Local family law, separation and divorce resources: Litigants are encouraged to access parenting education programs, counselling services, supervised contact/parenting timeparenting coordinationand other related services. Information about these services is available through the Family Law Information Centres.
  • Mandatory Information Programs (MIP):Parties are required to attend a MIP at an early stage of the proceeding with limited exceptions. Virtual MIPs are available in centres across Ontario.  Information about how to register for the MIP is available through the Family Law Information Centre or
  • Mediation: Affordable, court-connected mediation servicesare available in connection with all SCJ centres. Contact information for local mediation service providers is available hereReferrals to private family mediation services are also available through professional organizations like OAFM and FDRIO.
  • Family Court Support WorkersFamily Court Support Workersprovide direct support to victims of domestic violence who are involved in the family court process.

Parties are encouraged to consider using family mediation services to attempt to resolve their disputes.  Information about these services including whether they may be appropriate in the circumstances and how they can be arranged is available by contacting local mediation service providers.

12. Motions to Change

Changes were made to rule 15 to streamline the process for Motions to Change effective December 1, 2021.  These changes direct the Court to determine the next steps in the motion, with a view to ensuring that the motion proceeds in the most efficient manner appropriate in the circumstances.  The new subrule also directs the Court to determine the most appropriate process for reaching a quick and just conclusion of the case, if possible in the circumstances.

A new Motion to Change Endorsement form is available here. Parties are encouraged to provide a draft Motion to Change Endorsement form with their materials for the first judicial conference to obtain early direction regarding the appropriate process for the case.

13. Law Society Pilot Project

To help facilitate the delivery of affordable family law services, effective January 17, 2022, lawyer candidates may appear on certain events in a family law case without needing advance permission from the Court as required by Family Law Rule 4(1)(c). Articling students, Law Practice Program students, students who are completing a work term through an approved Integrated Practice Curriculum (currently, Lakehead University and Ryerson University) and lawyer candidates who have not yet been called to the bar but have a Law Society-approved supervision agreement in place with a licensed lawyer may appear under this pilot. The list of attendances where the lawyer candidates may appear is available here.

Lawyer candidates who are authorized to appear for these steps in a family case must (i) be prepared with full instructions for all matters that are expected to be addressed at the attendance, and (ii) be appropriately supervised by a lawyer in their firm. Moreover, a supervising lawyer with knowledge of the matter must be available on-call to assist with the matter at the request of the presiding judge. More details about the requirements relating to this pilot are available at Rights of Appearance | Law Society of Ontario (lso.ca).

14. Automatic Orders

As noted above, litigants must exchange their financial disclosure as early as possible to make each court attendance meaningful.

Effective February 1, 2022, an order will be issued administratively when certain claims are made in an Application, Motion to Change or Answer in accordance with rule 8.0.1 of the Family Law Rules. These orders require each party to comply with their financial disclosure responsibilities relating to support from the applicable legislation and the Family Law Rules so the case conference is productive.

Rule 13(3.1) of the Family Law Rules addresses the documents that must be included with a financial statement where child or spousal support has been sought.

More information about the documents that shall be exchanged to support your financial statement is available at:  https://stepstojustice.ca/steps/family-law/3-get-your-supporting-documents/ and https://disclosureclinic.com/wp-content/uploads/2021/10/Top-5-Income-Documents.pdf.

An updated Certificate of Financial Disclosure should be provided to the other party with this documentation.

A party who has not made all reasonable efforts to comply with these obligations in advance of the case conference may be responsible for the other party’s costs.

15. Guidelines to Determine Mode of Proceeding in Family

Please see Regional Notices for scheduling protocols related to the application of the following presumptive guidelines including scheduling processes related to requests for changes in the presumption.

A. Over-arching principles in the application of the presumptive guidelines

These guidelines set out presumptive methods of attendance for events in Superior Court of Justice proceedings.  In applying these guidelines, the Court will take into account the following general principles:

  1. Discretion of the Court:

While presumptions for each event set out the default position of the Court, the final determination of how an event will proceed will remain subject to the discretion of the Court.  This will take into account the issues in the proceeding, the expected length of the hearing, the evidentiary record, the status of parties (e.g. self-represented litigants) and access to technology (including virtual capacity at institutions and courthouses).

  1. Access to justice:

While virtual platforms to conduct proceedings remotely have enhanced access to justice for many, the Court also recognizes that there are significant variations in the abilities of litigants to access and use the technology that is required for virtual hearings.  Until such time as there is a means to provide access to technology to those who do not have it so that they can fully participate in a remote hearing, the Court will take this access issue into account when determining the appropriate mode of proceeding.  In that respect, if remote proceedings are utilized, the needs of all participants must be met so they can fully and equally participate.

  1. Self-represented litigants:

While the Court’s determination of the appropriate mode of proceeding will necessarily take into account the ability of litigants to access and effectively use technology for virtual hearings, the Court will also consider other circumstances uniquely related to self-represented litigants.  Issues such as the inability to obtain timely assistance from duty counsel and court staff, needing support to use technology or the inability to adequately address issues in writing may mean that in proceedings involving a self-represented litigant, Courts may favour an in-person mode of proceeding.

  1. In-person hearings important:

While the continued use of virtual proceedings increases efficiency at many stages in the litigation process, the Court also recognizes the importance of in-person interaction and hearings for more substantive attendances.  For these matters, in-person advocacy and participation will remain an essential feature of our justice system.

  1. Hybrid options:

In determining the mode of proceeding and the application of the guidelines, the Court will also take into account whether some parts of a proceeding should be conducted virtually and other parts conducted in person.  In other words, hybrid options will be considered where appropriate or necessary.

  1. Impediments to a virtual hearing:

There may be statutory, security or other impediments to having a remote hearing in certain matters, particularly criminal cases, civil contempt hearings and other matters that deal with sensitive information (e.g. child protection cases).  Moreover, a party’s or participant’s personal circumstances (e.g. disabilities or caregiver responsibilities) may make remote hearings less suitable.

 

B. Terms used in the guidelines

“Virtual” = proceedings using a platform like Zoom video or audioconference or by teleconference.

“Hybrid” = proceedings in which some justice participants are appearing physically in the courtroom and others are participating virtually.

“In-person” = all parties, counsel and the judge are physically in the courtroom.

“Videoconference or audioconference” = connecting into a proceeding using a  platform like Zoom through video and audio or audio only.

“Teleconference” = connecting into a proceeding via a telephone number to a landline.

 

C. Presumptive guidelines to determine mode of proceeding in family matters

The following guidelines set out the Court’s expectations for the default method of appearance for all family events that will be applied across the province.  However, the Court also recognizes that some Regions, in particular the Northwest, Northeast and those with circuiting judges, will require greater flexibility in hearing more cases virtually.

I. Family

  1. First appearances:

Where required, first appearance courts will be heard virtually unless the Court specifies a different method of attendance.  In deciding whether these attendances will be conducted other than virtually, the Court will take into account the availability of duty counsel and on-site mediation services.

  1. Early or urgent case conferences and triage courts (where available):

All early or urgent case conferences and early intervention courts will be held by videoconference unless the Court specifies a different method of attendance.

  1. Urgent motions:

All urgent motions will be heard by videoconference unless the Court specifies a different method of attendance when the event is scheduled.  A party who takes the position that the urgent motion should be heard in person should include in their motion materials the reasons why the motion should not be heard by videoconference.

  1. Case conferences, settlement conferences and trial management conferences:

All (i) case conferences, (ii) settlement conferences, and (iii) trial management conferences with a settlement focus, will be held in person unless a different method of attendance is approved by the Court in advance.

  1. Trial scheduling conferences, other trial management conferences and assignment court attendances (where required):

All trial scheduling conferences, trial management conferences where the focus is on preparation for trial and assignment court attendances (where required) will be heard by videoconference unless, at a prior conference, the Court has specified a different method of attendance.

  1. Motions for procedural relief and motions on consent:

All motions on consent, unopposed motions and simple procedural motions will be conducted in writing.  More complex procedural motions will be conducted by videoconference, unless the Court specifies that an in-person attendance is required.

  1. Substantive regular/short motions:

Outside of Toronto and Windsor, where regular motions in family cases are heard on mixed civil and family lists, substantive motions of less than an hour will be held by videoconference.

In Unified Family Court locations, Toronto and Windsor, regional Notices will direct the mode of appearance for these events.

All motions for contempt will be held in person.

  1. Long motions:

All long motions will be held in person unless the Court has agreed to a virtual attendance in advance, which will be decided at the case conference.

If contempt is sought or there is a hearing alleging the wrongful removal or retention of a child, the motion will be held in person.

  1. Trials:

All trials will be held in person unless all parties consent to a virtual trial and the Court approves.  The Court may consider the option of a hybrid proceeding and whether a witness may be permitted to testify virtually by videoconference.  Requests for virtual or hybrid trials will be addressed with the completion of the Trial Scheduling Endorsement Form prior to the scheduling of the trial.

II. Child Protection

  1. First hearing where child has been brought to a place of safety (5-day hearings):

5-day hearings will be heard virtually unless the Court decides that an in-person hearing is required, taking into account any concerns regarding: (i) parental participation in virtual hearings or (ii) Legal Aid support for these events.

  1. Child protection lists or TBST appearances:

Child protection lists or To Be Spoken To appearances will be held by videoconference unless the Court decides that an in-person hearing is required, taking into account any concerns regarding: (i) parental participation in virtual hearings or (ii) Legal Aid support for these events.

  1. Settlement conferences and trial management conferences:

All (i) settlement conferences and (ii) trial management conferences with a settlement focus will be held in person unless a different method of attendance is approved by the Court in advance.

  1. Trial scheduling conferences, other trial management conferences and assignment court attendances (where required):

All trial scheduling conferences, trial management conferences where the focus is on preparation for trial and assignment court attendances (where required) will be heard by videoconference unless, at a prior conference, the Court has specified a different method of attendance.

  1. Motions on consent and motions for procedural relief only (including 14B motions):

All motions on consent, unopposed motions or simple procedural motions will be conducted in writing.  More complex procedural motions will be conducted by videoconference, unless the Court specifies that an in-person attendance is required.

  1. Substantive/regular short motions:

Regional Notices will direct the mode of appearance for these attendances.

  1. Long motions including summary judgment motions and temporary care and custody hearings:

All long motions, including summary judgment motions, and temporary care and custody hearings will be held in person unless the Court has agreed to a virtual attendance in advance, which requests should be raised at a prior court attendance.

  1. Trials:

All trials will be held in person unless all parties consent to a virtual trial and the Court approves.  The Court may consider the option of a hybrid proceeding and whether a witness may be permitted to testify virtually by videoconference.  Requests for virtual or hybrid trials will be addressed with the completion of the Trial Scheduling Endorsement Form prior to the scheduling of the trial.

III. FRO Lists and Refraining Motions

All Family Responsibility Office matters will be heard in person unless the Court directs a different method of attendance.

Refraining motions that are not held on regular FRO sittings at Unified Family Court locations, including those held in generalist locations, will be held by videoconference unless the Court directs a different method of attendance.

IV. Dispute Resolution Conferences

All Dispute Resolution Conferences will continue to be held by videoconference.

 

IV.  ADDITIONAL PROCEDURES GOVERNING CRIMINAL MATTERS

1. Filings in Criminal Matters

All filings for Criminal matters must be emailed to the address(s) located in the Region’s Notice and follow the protocol set out in the Region’s Notice.  Also, for further direction, please refer to section IX, X, and XI in the the Provincial Practice Direction /Amendment to the Criminal Proceedings Rules Regarding Criminal Proceedings

2. Requirement for CaseLines: Regional implementation

The status of CaseLines expansion for Criminal matters is as follows:

(i) Toronto: CaseLines is being used for summary conviction appeals, prerogative remedies/special motions, pre-trial motions, bail hearings and bail reviews.

(ii) East Region: CaseLines is being used for Criminal bail reviews, bail hearings, pre-trial motions, judicial pre-trials and trials (and proceedings subsequent to the judicial pre-trial).

(iii) Northwest Region: Subject to a judicial order or endorsement, all scheduled Criminal events will use CaseLines with the exception of Assignments Courts, bail estreatments and detention reviews.

(iv) Central East Region: Criminal bail reviews, bail hearings and judicial pre-trials (and proceedings subsequent to the judicial pre-trial).

(v) Central South Region: CaseLines is being used for summary conviction appeals, pre-trial motions, bail reviews, bail hearings and judicial pre-trials (and proceedings subsequent to the judicial pre-trial).

(vi) Central West Region: Subject to a judicial order or endorsement, CaseLines will be used for all criminal matters except for judicial pre-trials, Trial Readiness Court, Assignment Court, bail treatments and TBST matters.

(vii) Northeast Region: Subject to a judicial order or endorsement, all scheduled Criminal events will use CaseLines.

(viii) Southwest Region: CaseLines is being used for judicial pre-trials, bail reviews, bail hearings, and summary conviction appeals.

3. Guidelines to Determine Mode of Proceeding in Criminal

These guidelines will take effect April 19th, 2022.

Please see Regional Notices for scheduling protocols related to the application of the following presumptive guidelines including scheduling processes related to requests for changes in the presumption.

A. Over-arching principles in the application of the presumptive guidelines

These guidelines set out presumptive methods of attendance for events in Superior Court of Justice proceedings.  In applying these guidelines, the Court will take into account the following general principles:

  1. Discretion of the Court:

While presumptions for each event set out the default position of the Court, the final determination of how an event will proceed will remain subject to the discretion of the Court.  This will take into account the issues in the proceeding, the expected length of the hearing, the evidentiary record, the status of parties (e.g. self-represented litigants) and access to technology (including virtual capacity at institutions and courthouses).

  1. Access to justice:

While virtual platforms to conduct proceedings remotely have enhanced access to justice for many, the Court also recognizes that there are significant variations in the abilities of litigants to access and use the technology that is required for virtual hearings.  Until such time as there is a means to provide access to technology to those who do not have it so that they can fully participate in a remote hearing, the Court will take this access issue into account when determining the appropriate mode of proceeding.  In that respect, if remote proceedings are utilized, the needs of all participants must be met so they can fully and equally participate.

  1. Self-represented litigants:

While the Court’s determination of the appropriate mode of proceeding will necessarily take into account the ability of litigants to access and effectively use technology for virtual hearings, the Court will also consider other circumstances uniquely related to self-represented litigants.  Issues such as the inability to obtain timely assistance from duty counsel and court staff, needing support to use technology or the inability to adequately address issues in writing may mean that in proceedings involving a self-represented litigant, Courts may favour an in-person mode of proceeding.

  1. In-person hearings important:

While the continued use of virtual proceedings increases efficiency at many stages in the litigation process, the Court also recognizes the importance of in-person interaction and hearings for more substantive attendances.  For these matters, in-person advocacy and participation will remain an essential feature of our justice system.

  1. Hybrid options:

In determining the mode of proceeding and the application of the guidelines, the Court will also take into account whether some parts of a proceeding should be conducted virtually and other parts conducted in person.  In other words, hybrid options will be considered where appropriate or necessary.

  1. Impediments to a virtual hearing:

There may be statutory, security or other impediments to having a remote hearing in certain matters, particularly criminal cases, civil contempt hearings and other matters that deal with sensitive information (e.g. child protection cases).  Moreover, a party’s or participant’s personal circumstances (e.g. disabilities or caregiver responsibilities) may make remote hearings less suitable.

 

B. Terms used in the guidelines:

“Virtual” = proceedings using a platform like Zoom video or audioconference or by teleconference.

“Hybrid” = proceedings in which some justice participants are appearing physically in the courtroom and others are participating virtually.

“In-person” = all parties, counsel and the judge are physically in the courtroom.

“Videoconference or audioconference” = connecting into a proceeding using a platform like Zoom through video and audio or audio only.

“Teleconference” = connecting into a proceeding via a telephone number to a landline.

 

C. Presumptive guidelines to determine mode of proceeding in criminal matters

  1. Assignment court:

Assignment court appearances will be held virtually (either by video or audioconference or in some jurisdictions by teleconference) unless the Court specifies a different method of attendance.  In deciding whether any assignment court appearance will be conducted other than virtually, the Court will take into account whether the accused is self-represented (either in custody or out of custody) and any other factor bearing on the administration of justice, including any access to justice issues.

  1. Bail hearings, bail reviews and detention reviews:

(i) Bail hearings:

All bail hearings will be held virtually subject to the discretion of the Court, which will take into account: the availability of a virtual suite from the custodial institution, whether the accused is self-represented, the position(s) of the parties and any other factor bearing on the administration of justice.  The mode of appearance can be decided at the pre-bail hearing conference or a party may request one for this purpose.

(ii) Bail reviews and detention reviews:

All bail reviews and 90-day detention reviews will be held virtually subject to the discretion of the Court, which will take into account: the availability of a virtual suite from the custodial institution, whether the accused is self-represented, the position(s) of the parties and any other factor bearing on the administration of justice.  The mode of appearance can be decided at the pre-bail hearing conference or a party may request one for this purpose.

  1. Judicial pre-trials:

All judicial pre-trials will be held virtually (either by video or audioconference or in some jurisdictions by teleconference) unless the Court directs that an in-person judicial pre-trial is required in light of the accused being self-represented, there being multiple accused in a case, the complexity of trial issues, the length of the trial, or any other factor the Court decides warrants an in-person judicial pre-trial.

  1. Pre-trial motions:

All pre-trial motions will be held in person unless both the accused and the Crown consent to it being heard virtually and the Court approves.  The Court may consider the option of a hybrid proceeding and whether a witness, at the request of either party, may be permitted to testify virtually by videoconference.  This direction does not otherwise limit either the accused’s or Crown’s ability to seek to call a particular witness’ evidence remotely as authorized by the Criminal Code or the common law.

  1. Judge-alone trials:

All judge-alone trials will be held in person unless both the accused and Crown consent to a virtual trial and the Court approves.  The Court may consider the option of a hybrid proceeding and whether a witness, at the request of either party, may be permitted to testify virtually by videoconference.  This direction does not otherwise limit either the accused’s or Crown’s ability to seek to call a particular witness’ evidence remotely as authorized by the Criminal Code or the common law.

  1. Jury trials:

All jury trials will be held in person.  The Court may consider the option of a hybrid proceeding and whether a witness, at the request of either party, may be permitted to testify virtually by videoconference.  This direction does not otherwise limit either the accused’s or Crown’s ability to seek to call a particular witness’ evidence remotely as authorized by the Criminal Code or the common law.

  1. Guilty pleas:

All guilty pleas will be held in person unless both the accused and the Crown consent to it being heard virtually and the Court approves.

  1. Sentencing hearings:

All sentencing hearings will be held in person unless both the accused and the Crown consent to it being heard virtually and the Court approves.

  1. Summary conviction appeals and special motions:

(i) Assignment court (in jurisdictions where these are held):

All assignment court appearances related to summary conviction appeals and special motions will be held virtually (either by video or audioconference or in some jurisdictions by teleconference), with the exception of self-represented litigants, unless the Court specifies a different method of attendance.

(ii) Hearing of the motion:

All summary conviction appeals will be held virtually subject to the discretion of the Court, which will take into account: whether the accused is self-represented, the position(s) of the parties, and any other factor bearing on the administration of justice.  Where one of the parties requests another mode of appearance, they can do so at a case management conference or they can request a case management conference for this purpose.

 

Geoffrey B. Morawetz, Chief Justice.

April 14, 2022.