Province-wide Notice to the Profession Regarding Family Law Cases

Effective September 13, 2021, amended January 10, 2022 to add sections 11 (regarding Motions to Change), 12 (regarding the new Law Society pilot program for family cases) and 13 (regarding automatic orders).

This Notice to the Profession introduces a number of changes to facilitate more timely, efficient and affordable access to justice in family law cases.  These initiatives focus on the need to streamline processes for family cases, consistent with the primary objective of the Family Law Rules to deal with cases justly including (i) ensuring that the procedure is fair to all parties, (ii) saving expense and time, (iii) dealing with the case in ways that are appropriate to its importance and complexity, and(iv) giving appropriate court resources to the case while taking account of the need to give resources to other cases. These considerations are particularly important in light of current COVID-related backlogs.  This Notice provides direction regarding:

1. 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, 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 to the Profession.

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 to the Profession 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.

2. Case Center

Case Center is a cloud-based document storage e-hearing platform that is used by the Court and the parties to access filed material for remote and in-person court proceedings.

Once litigants have been invited to a Case Center file, all material that has been accepted for filing by the Court must also be uploaded to Case Center immediately after receipt of confirmation that the filing has been accepted.

If the material has not been uploaded to Case Center in accordance with the timelines for filing, it may not be reviewed by the judge in advance.  If a self-represented litigant is not able to use Case Center because of lack of access to technology, they can obtain help at the filing office.  Assistance with Case Center is available through Justice Services Online by contacting 1-800-980-4962 or by email at info.Case Center@ontario.ca

Litigants are asked to use Case Center to facilitate the Court’s access to the entire court file, including relevant documents from the Continuing Record.  In addition to uploading event specific documents after they have been filed, this means uploading the pleadings and Form 35.1 affidavits into the Case Center pleadings bundle and the relevant orders and endorsements into the Case Center orders/endorsements bundle.  Litigants should also upload into the Case Center bundle for the event any additional documents that have been previously filed and will be relied upon at the event (e.g. financial statements that have been updated by affidavit).

If a party has improperly uploaded a document into Case Center, it can be noted on the confirmation form and in the notes section of the Case Center file.

Additional information and direction regarding the use of Case Center, including training and other resources, is available at:  https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/supplementary-notice-september-2-2020/.

3. 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.

4. Requirements to Confer in Advance of a Conference:

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.

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.

5. 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.

6. 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 will be 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.

7. 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).

8. 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.

9. 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 to the Profession 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.

10. 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 time, parenting coordination and 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 services are available in connection with all SCJ centres. Contact information for local mediation service providers is available here. Referrals to private family mediation services are also available through professional organizations like OAFM and FDRIO.
• Family Court Support Workers: Family Court Support Workers provide direct support to victims of domestic violence who are involved in the family court process.

11. 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.

12. 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).

13. 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.

Litigants and the bar should also be familiar with the applicable regional Notices to the Profession and Practice Directions.

Geoffrey B. Morawetz
Chief Justice
Ontario Superior Court of Justice