Canada: The Family Rules Are Changing On July 1, 2018 And Lawyers And Litigants Should Take Note

Last Updated: June 8 2018
Article by Devry Smith Frank LLP

Come July 1, 2018, the Family Law Rules (the rules that govern the process of family law court cases in Ontario) will undergo some substantial changes. Changes have been made to the rules that govern the timelines for serving and filing court materials, the rules for costs and the rules for motions and conferences. The changes are not insignificant and family law litigants and lawyers alike will have to take note.

Timelines for Motion Materials

One of the major areas of change is in relation to the time in which parties have to serve and file materials for motions. If a party wishes to have the court grant a temporary order, they have to (in most cases), bring a motion. To do this, they have to serve and file a notice of motion outlining the orders they want to make, and the evidence supporting those orders.

Under the "old" rules, a motion and the supporting evidence had to be served no later than four days before the hearing date. A party responding to the motion had up until two days before the hearing date to provide their evidence in response to the motion. The party bringing the motion would have a right to reply, but this would also have to be submitted two days before the hearing date. This led to numerous motions being adjourned when responding materials were filed at the last moment, necessitating an adjournment to allow for reply evidence. Finally, two days before the hearing, the parties had to confirm that the motion was proceeding by filing a confirmation.

The new rules have extended the timelines and (one hopes) eliminated the need for adjournments to file reply evidence. Under the new rules, motions must be served six days before the hearing, and responses must be filed by four days before the motion. If a party wishes to file a reply, they will have to do so three days before the hearing date. Confirmations will now have to be filed three days before the motion.

Hopefully, these amendments will result in fewer motions being brought at the last possible moment and fewer motions being adjourned as a result of it. Delay works a real injustice in family law, and regularizing the process for booking motions and filing the material for them will hopefully work against this.

Timelines for Conferences

The new rules have also changed the timelines for filing conference briefs. Under the old rules, the party requesting the conference (or if no one requested it, the Applicant) had to serve and file their brief seven days before the conference. The responding party had to serve and file their brief four days before. The new rules now require that the initial brief be filed six days before the conference. Litigants will now have to keep Rule 3(2) in mind when filing briefs. Under Rule 3(2), if a rule specifies a period of less than seven days, you don't count weekends or other days when the court is closed. So six business days may turn into eight calendar days depending on the timing of the conference.

Costs

It is unlikely that the changes to the rules for service and filing of motions will lead to any substantive changes in the law – people often do not litigate about how many days there are in the week (thankfully). However, the last major changes to the Rules will likely lead to some litigation over their interpretation and application. After all, the changes are to the cost rules.

The current costs regime is enumerated in Rule 24. Its language and interpretation have been the subject of countless court decisions. The old Rule 24(11) listed the factors that judges had to consider when awarding costs. The new Rule 24(12) does the same but imports the language of 'reasonableness' and 'proportionality' into an assessment of each of the factors. While these concepts always have loomed large in the assessment of costs, it will be interesting to see if the slight linguistic changes will have an impact on how and when costs are awarded. There is a legal maxim that the legislature does not speak in vain, and changes in the language of the law should bring about changes in its application. Otherwise, the changes will have had no effect and the legislature will have 'spoken in vain.' We will just have to wait and see how these new rules are applied.

One of the last major changes is when the Court can award costs. The 'old' rules required a judge to address costs at the end of each step in a case, be it motion, conference or otherwise. In Islam v Rahman, the Court of Appeal decided that if a judge did not address costs at the end of a step, a party could not seek costs for that step later in the case. The new Rule 24(11) has done away with this and allows the court to award costs related to a step at any point in the case.

The Final Word

It is only in half-jest that I say that one would need a law degree to understand the Family Law Rules. While they are meant to be understood by average people, many people find them confusing and tough to navigate. The new amendments to the Rules will hopefully prevent motions being brought at the last moment to 'ambush' other parties, and motions from being adjourned to allow for reply evidence. However, the new rules also make clear that motions will not proceed if the rules are not followed exactly. It is important to ensure that all the rules are followed, or cases will continue to be delayed. That is why it is always recommended that you have an experienced family law lawyer assist with your case.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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