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Family Law Rules: Rule 40- Case management in Ontario Court of Justice

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Family Law Rules: Rule 40- Case management in Ontario Court of Justice

CASE MANAGEMENT IN CERTAIN AREAS ONLY

40. (1) This rule applies only to cases in the Ontario Court of Justice. O. Reg. 114/99, r. 40 (1).

EXCLUDED CASES

(2) This rule does not apply to,

(a) enforcements;

(b) cases under rule 37 or 37.1; or

(c) cases under the Child and Family Services Act. O. Reg. 439/07, s. 4 (1).

PARTIES MAY NOT LENGTHEN TIMES

(3) A time set out in this rule may be lengthened only by order and not by the parties’ consent under subrule 3 (6). O. Reg. 114/99, r. 40 (3).

FIRST COURT DATE

(4) The clerk shall, on or before the first court date,

(a) confirm that all necessary documents have been served and filed;

(b) refer the parties to sources of information about the court process, alternatives to court (including mediation), the effects of separation and divorce on children and community resources that may help the parties and their children;

(c) if an answer has been filed in response to an application, or if a response to motion to change (Form 15B) or a notice of financial interest has been filed in a motion to change a final order or agreement under rule 15, confirm that the case is ready for a hearing, case conference or settlement conference and schedule it accordingly;

(d) if no answer has been filed in response to an application, send the case to a judge for a decision on the basis of affidavit evidence or, on request of the applicant, schedule a case conference; and

(e) if no response to motion to change (Form 15B), consent motion to change (Form 15C) or notice of financial interest is filed in response to a motion to change a final order or agreement under rule 15, send the case to a judge for a decision on the basis of the evidence filed in the motion. O. Reg. 114/99, r. 40 (4); O. Reg. 202/01, s. 8; O. Reg. 89/04, s. 15; O. Reg. 151/08, s. 8.

NOTICE OF APPROACHING DISMISSAL AFTER 365 DAYS

(5) The clerk shall serve a notice of approaching dismissal (Form 39) for a case on the parties by mail, fax or electronic mail if the case has not been settled, withdrawn or scheduled or adjourned for trial before the 365th day after the date the case was started, and that time has not been lengthened by an order under subrule (3). O. Reg. 439/07, s. 4 (2).

EXCEPTION

(5.1) Despite subrule (5), if a case conference or settlement conference is arranged before the 365th day after the date the case was started for a date on or later than the 365th day, the clerk shall not serve a notice of approaching dismissal except as set out in subrule (5.2). O. Reg. 439/07, s. 4 (2).

NOTICE SENT IF CONFERENCE DOES NOT TAKE PLACE

(5.2) If a case conference or settlement conference is arranged for a date on or later than the 365th day after the date the case was started, but the hearing does not take place on that date and is not adjourned by a judge, the clerk shall serve the notice of approaching dismissal on the parties by mail, fax or electronic mail. O. Reg. 439/07, s. 4 (2).

DISMISSAL OF CASE

(6) A case for which a notice of approaching dismissal has been served shall be dismissed without further notice, unless one of the parties, within 60 days after the notice is served,

(a) obtains an order under subrule (3) to lengthen that time;

(b) files an agreement signed by all parties and their lawyers, if any, for a final order disposing of all issues in the case, and a notice of motion for an order carrying out the agreement;

(c) serves on all parties and files a notice of withdrawal (Form 12) that discontinues all outstanding claims in the case;

(d) schedules or adjourns the case for trial; or

(e) arranges a case conference or settlement conference for the first available date. O. Reg. 439/07, s. 4 (2).

SAME

(6.1) If a case conference or settlement conference is arranged for a date as described in clause (6) (e), but the hearing does not take place on that date and is not adjourned by a judge, the case shall be dismissed without further notice. O. Reg. 439/07, s. 4 (2).

DISMISSAL AFTER NOTICE

(6.2) The clerk shall dismiss a case under subrule (6) or (6.1) by preparing and signing an order dismissing the case, with no costs payable by any party. O. Reg. 439/07, s. 4 (2).

SERVICE OF DISMISSAL ORDER BY CLERK

(7) The clerk shall serve the order on each party by mail, fax or electronic mail. O. Reg. 114/99, r. 40 (7).

SERVICE OF DISMISSAL ORDER BY LAWYER ON CLIENT

(8) A lawyer who is served with a dismissal order on behalf of a client shall serve it on the client by mail, fax or electronic mail and file proof of service of the order. O. Reg. 114/99, r. 40 (8).

JUDGE MAY SET CLERK’S ORDER ASIDE

(9) A judge may, on motion, set aside an order of the clerk under subrule (6). O. Reg. 114/99, r. 40 (9).

TRANSITION

(10) Despite this rule, if the clerk served a notice of approaching dismissal before September 1, 2007, the version of this rule that applied to the case on August 31, 2007, as its application may have been modified by the court, continues to apply to the case unless the court orders otherwise. O. Reg. 439/07, s. 4 (3).

Written by Lisa Gelman

Senior Lawyer

Senior Lawyer Lisa Gelman has over 25 years of family law experience and founded Gelman & Associates to provide strategic legal counsel in family law matters concerning divorce, parenting, separation, and more.

Frequently Asked Questions - enforcement & modification orders

A restraining order in the context of family court is an order that prohibits the contact that one party can have with another. Based on the particulars of a given restraining order, it can prohibit direct and/or indirect contact, and require that the party against whom the restraining order has been taken out maintain a certain physical distance from the other party. In the family law context, a restraining order has to be requested by way of a motion brought at the court. The party seeking the order must provide affidavit evidence to substantiate the need for the restraining order. The party against whom the order is sought must likewise have an opportunity to argue his/her case, and to this end judges will usually ask that a motion for a restraining order be brought with notice to the other party.

If you believe that your restraining order is required immediately, you may bring an urgent, ex parte motion for same (ex parte means that the motion is brought without notice to the other party, who is not served with your motion materials and is not given notice that the motion will even be taking place). Because restraining orders can affect possession of the matrimonial home and parenting time, it is imperative that the party against whom the order is sought have the opportunity to make his or her own case. Accordingly, if a judge grants a restraining order brought on an urgent, ex parte motion, the judge will also order that the motion return in one week’s time so that the party against  whom the order has been granted may be  properly served with motions materials and  have an opportunity to defend the action.

Suppose one of the parents does not follow the court’s order. He or she may be called to court and explain why she wasn’t able to uphold the initial agreement. If his or her reason isn’t valid, the court may change the earlier deal, and it may favor the other parent.

Each province and territory in Canada has a maintenance enforcement program for family orders and agreements. Additionally, the federal government may refuse to issue a Canadian passport if the applicant is delinquent in child support payments. They also have the authority to garnish wages for the back payments owed. In the USA, the Office of Child Support Enforcement, which is part of the Administration for Children and Families in the Department of Health and Human Services, is now in charge of the federal child support enforcement program.

Ex parte motions provide an exemption to the principles of due process in emergencies by allowing you to petition the court without having to give notice or serve the other parties in your case. If the judge issues the ex parte order, it’s only for a limited time.

Yes, it is possible to change the initial terms of a separation agreement if you and your spouse agree to the changes and sign a written agreement to change the terms. If your spouse does not agree to change the terms, you can make a court application to change the separation agreement.

No matter what the circumstances surrounding your separation agreement are, our Toronto separation lawyers can help you make changes when you need to.

You can use this motion if you need to change your order. By filing this motion, you’re asking the court to change something in your final order. It would help if you showed that there has been a substantial change in circumstances since the last court order. You can’t file this motion just because you disagree with the order. You shouldn’t also file this motion too soon after the court releases the final order. If things have changed in your children’s lives, you can ask to modify the order based on those changes. Other samples you can change may include but not be limited to:

  • Spousal support
  • Decision-making issues for the children
  • Issues related to parenting time
  • Child support

If you deny court-approved parenting time, it could be a possibility. The court may find you in contempt. You may also have to compensate the other person for any lost parenting time or legal fees they had to pay to enforce the parenting arrangement.

If you get an order and want to change it, you first need to assess your relationship with the opposing party.
If you both agree, you can apply for a consent order and need not go to court. If you do not, you may seek help from mediators or counsellors who can help you talk things out. If you still do not agree after mediation, you will need to apply to the court to change the order.

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