Everyone has a family. You might be parents with children, married couples, common-law partners, or children. Any of these situations have a legal aspect. Family law in Ontario dictates what happens under any circumstances, including marriage and divorce.
Because of the complexity of relationships, several laws and regulations may apply to any situation. The Ontario Family Law Rules ensure the cohesive application of all these.
If you are in a situation with a legal component, you might find yourself at a loss. Making sense of all the different laws and rules can be challenging for anyone without legal knowledge. When dealing with a case involving your children, spouse, or partner, consult with a lawyer specializing in family law in Ontario to protect your rights.
Learn the difference between family law and Family Law Rules below. You will also find out the different rules and how they apply.
Family Law in Ontario
Family law addresses the responsibilities and rights of people regarding family matters in Canada based on provincial legislation. Aside from people in a civil marriage or common-law unions, family law cases include people with biological or adopted children. They also involve people in an ongoing relationship of three years or more.
It covers the following:
- Spousal support – financial support of one partner for the other, whether in a civil marriage or common-law relationship when the relationship ends; includes the duration of that support and any amendments that might apply based on developing circumstances
- Child support – financial support of one parent for the other for the maintenance of a child and any special circumstances that apply
- Decision-making responsibility and parenting time – also known as child custody and access; refers to arrangements for the primary residence of a child and visitation rights of the non-custodial parent after separation
- Division of property – pertains to how married couples or common-law partners handle assets and liabilities accumulated during the marriage
The situation is never the same, even for people in similar circumstances. As a result, family law in Toronto and other parts of Canada can get complicated. The applicable law may refer to several pieces of legislation or regulations. These include the following:
- Divorce Act
- Family Law Act
- Children’s Law Reform Act
- Child Support Guidelines
- The Spousal Support Advisory Guidelines
- Precedents in family law cases decided established by judicial decisions; a handy guide for these is the CanLII Primer, where you can filter the results by subject and date
The Ministry of the Attorney General provides various resources to help families understand the system. However, it’s not that easy. A cursory reading of these laws, regulations and judicial cases makes most people’s heads spin. Consult with a law firm dealing with practice areas in family law that address your legal issues.
Understanding the Family Law Rules
On the other hand, Ontario Family Law Rules (Rules) are regulations under the Courts of Justice Act. They apply to all family law cases, including the interpretation, modification, and enforcement of domestic contracts.
These arrangements include prenuptial, postnuptial, cohabitation, paternity, separation, and family arbitration. It also rules over family arbitration awards.
The Rules do not stand on their own. They operate in tandem with provincial and federal laws. These include the Family Law Act, Divorce Act, and Children’s Law and Reform Act to move a family case forward.
The Rules deal with all the technical steps of a family law case. These include what documents to file and serve, to whom, and when. It dictates what forms are applicable in specific circumstances and the jurisdiction of each court.
The Rules also specify the timelines, which is very important. You must abide by these if you file a family law case in Ontario. Failure to do so can make your case more expensive than necessary and may adversely affect its success.
Ontario Family Law Rules
Since the Rules play such a critical part in litigating family law cases, it might help to get an overview of what they contain. Below are the key points and summary of each section.
Rule 1: General (O. Reg. 114/99, r. 1 (1))
Rule 1 deals with the Rules’ jurisdiction and applicable laws and regulations. It specifies case management, conditions, and directions for courts to which the Rules apply.
The Rules apply to the federal Divorce Act, provincial Ontario Family Law Act (except Part V), and Children’s Law and Reform Act. OtherOntario laws covered by the Rules include the following:
- Change of Name Act
- Child, Youth and Family Services Act (Parts III, VI, and VII)
- Family Responsibility and Support Arrears Enforcement Act, 1996
- Marriage Act (Section 6 and 9)
- Interjurisdictional Support Orders Act, 2002
Rule 1 specifies the jurisdictions in Ontario to which the Rules apply. It also guides courts on what to do when parties fail to follow directions or obey court orders. Litigants can also see where to find forms, the use of these forms, and the format of written documents. Other items under Rule 1 include Practice Directions and Transitional Provisions (for cases started before July 1, 2004).
Rule 2: Interpretation
The bulk of Rule 2 deals with the definition of terms used throughout the Rules, including “child,” “file,” “lawyer,” and “property claim.” It also states the primary objective of the Rules, dealing with cases justly, the duty to promote the primary purpose, and the duty to manage these cases.
Rule 3: Time
Rule 3 provides the definition and examples for “counting days” and “counting days – short period.” It also specifies what will happen when a court order or the last day of any period applicable to the Rules falls on a day when the court offices are closed.
The rule further specifies how parties can request to change the time set out in the Rules and when a court can change the time for an order. It also states that the court offices must refuse documents filed according to the order or particulars set out in the Rules.
Rule 4: Representation
As the title implies, Rule 4 sets the guidelines for lawyers and non-lawyer advocates in family law cases. Generally, the acceptability of representation relies on the discretion of the court.
The rule provides for when a public guardian or trustee may be appropriate, a party to the case dies, or one of the parties is a child. It also specifies how to change representation, exceptions in a child protection case, and how to remove a lawyer from a case.
Rule 5: Where a Case Starts and Is to Be Heard
Rule 5 establishes where family law cases must start. It specifies under what circumstances a court clerk can accept filing applications.
Generally, it should be in the municipality of residence of the litigant or child (in child custody or access cases). However, the case may start in another locality if there is an immediate danger to the child.
All steps other than enforcement must occur in the municipality where the case started or was transferred. Rule 5 spells out the conditions regarding where enforcement of payment and other orders should take place. The exception is enforcement by contempt motion, in which case it must take place where the order was made.
Finally, Rule 5 establishes the process for a change of venue for any case and child protection cases. All such cases require a motion form.
Rule 6: Service of Documents
All family cases involve serving legal documents to one or more parties. Rule 6 describes regular and special methods of serving these papers.
Some documents require special service, such as a summons to witness. In all service of document cases, proof of service must be provided, such as Form 6B (affidavit of service).
Rule 6 also lays out the regulations when a party changes address. It specifies the effective dates for service under different circumstances. These include service outside business hours and by mail, fax, courier, or document exchange.
Service by advertisement uses Form 6A. In some cases, service may not be required or may require the use of substituted or irregular service.
When sending by fax, the rule specifies the information to be included and the maximum length of the document. Some of these papers cannot be sent by fax.
Rule 7: Parties
Most people understand that there are applicants and respondents to a legal case. However, Rule 7 gives it chapter and verse. It describes parties in a case or motion in general and persons who must be named as parties.
Additionally, there are parties in cases involving children and those added by court order. It also stipulates the manner of arriving at the permanent case name and court file number with exceptions.
Rule 8: Starting a Case
Rule 8 sets out the various aspects of starting family law cases, including what constitutes a claim in an application. It describes the following processes:
- Filing an application
- Changing an order or agreement by motion
- Setting the court date
- Serving the application to all parties
- Serving the application to officials, agencies, etc
- Serving a protection order for a child
- Serving the application to a child’s lawyer
- Serving protection application before a case starts
- Application not served to a respondent on or before the court date
Subrule 8.1 details the Mandatory Information Program in The Superior Court of Justice in Toronto. This applies to divorce cases started after July 1, 1998, and cases governed by Part III of the Children’s Law Reform Act and Parts I, II, and III of the Family Law Act.
Rule 9: Continuing Record
Rule 9 stipulates that a person starting a case should create a continuing record of the case and serve it to all parties. It is unnecessary under certain circumstances, such as when the parties file a consent motion for a final order. Cases where a continuing record is mandatory include the following:
- Support order filed with the Director of the Family Responsibility Office
- Application for a child protection order or status review of a child protection order
The rule also provides the formal requirements of the continuing record and legal requirements of child protection continuing record. Under specific circumstances, breaking up a single continuing record into separate records is appropriate.
Separate records may also be combined by court order or by consent of all parties. In cases where the court orders the separation or combination of records, the court will decide which party shall do so. Otherwise, the party requesting the separation or combination of records shall have that decision.
Other items in Rule 9 include the following:
- Duties of parties serving documents such as an updated table of contents
- No service or filing of documents already in the record, except in special cases
- Disposition of written reasons for an order
- Preparing a new continuing record
- Transfer of records
- Confirmation of support order
- Transitional provision for cases started before, on, or after July 1, 2004, and before May 1, 2006, in The Superior Court of Justice or Family Court
Rule 10: Answering a Case
Respondents to a file family law case application must follow Rule 10 regulations. These pertain to how and when (30-60 days) to serve and file an answer. An exception is when adding a claim (14-30 days) and answering an adoption placement where the time to respond is shorter (20-40 days).
The rule stipulates the time allowed to reply to an answer (10 days). It also lays out the consequences of the failure of a respondent to answer the case within the prescribed time.
Rule 11: Amending an Application, Answer or Reply
Rule 11 sets out the applicable conditions for amending an application, answer, or reply with and without a court’s permission. It has special stipulations for child protection cases.
Rule 12: Withdrawing, Combining, or Splitting Cases
Parties to a case may withdraw an application, answer, or reply by serving a notice of withdrawal to all parties. A special party (children’s lawyer or public guardian) must serve a notice of motion for permission. Rule 12 specifies the costs of withdrawing cases. It also stipulates that combining and splitting cases requires filing a court motion and getting an order.
Rule 13: Financial Statements
Financial statements are often critical documents regarding cases with support, property, and matrimonial home possession claims. Rule 13 sets down the forms and requirements for different circumstances.
It also addresses the need for financial disclosure in the following cases:
- Decision-making responsibility and parenting time
- Claims for payment orders under the Child and Family Services Act
- Motion to change support
The rule states that clerks cannot accept documents without financial statements in cases where they are required. It also stipulates full disclosure from anyone who files these statements. Failure of a party to submit financial statements or answer questions pertaining to these documents may result in case dismissal.
Rule 14: Motions for Temporary Orders
Generally, Rule 14 states that any party cannot make a motion for temporary orders such as spousal or child support orders before a case conference. However, it can take months before a case gets to the conference stage. A party can make a motion at any time involving matters of urgency or hardship, with or without notice (Form 14C or 14B). Rule 14(6) describes that some cases do not require a case conference.
Rule 15: Motions to Change a Final Order or Agreement
In cases where a final court order or agreement for support is filed under the Family Law Act, you can make a motion to change it. However, you must prove there have been material changes in the circumstances. For example, your child is no longer living with your spouse, or your employment status changed. However, you must show that material changes after the order date would have affected the court’s decision.
Rule 15 also stipulates how and when you must respond to a motion to change by the other party. Your response will depend on whether you agree with it or if you want to make a different change. Failing to respond to a motion to change may result in a default decision.
Rule 16: Summary Judgment
A summary judgment is when the court rules a case without a trial. Rule 16 states you can make a motion for summary judgment for a final order if the responding party fails to answer on time. The summary judgment may be on all or part of any claim or defence presented in that case. However, you must provide affidavit evidence demonstrating facts proving there is no genuine issue that requires trial. A motion for summary judgment may not include a divorce claim. Rule 16 sets out the consequences for a failed motion or a motion made in bad faith.
Rule 17: Conferences
As you can probably guess, Rule 17 applies to conferences in defended and undefended cases in family courts. It sets out the purposes of case conferences, settlement conferences and trial management conferences and who may conduct these conferences. Rule 17 also specifies the forms for case conference briefs and other documents. It also sets the time, costs, and participation required for different aspects and stages of these conferences.
Rule 18: Offers to Settle
Rule 18 applies to an offer by one party to any other party to settle a claim, case, appeal, or motion. It stipulates the conditions for all factors that may affect an offer or settlement conference.
You can make an offer anytime, including before a case is started, and may include a counteroffer. The party making an offer may withdraw it before the other party accepts. An offer is not part of the continuing record or mentioned to the judge.
Rule 19: Document Disclosure
Rule 19 requires all parties to provide an affidavit listing all relevant documents available within ten days after a request. The other party has access to these papers at the legal aid rate, including those mentioned in court. These include documents mentioned in net family property statements and financial statements.
A party may deny access to privileged documents but not use them during trial unless the judge says otherwise. The court can order access to these papers under the control of a non-party if it is of material value to a case.
Rule 20: Questioning a Witness and Disclosure
Questioning a witness under Rule 20 takes place orally under oath or affirmation and may include cross-examination. The purpose of this rule is to obtain information not readily available by any other method.
Rule 20 sets out the conditions and requirements for questioning a witness in all cases. These include those involving a special party, child protection, net family property, non-parties, and people outside Ontario.
The court decides on the particulars of the questioning, including the date, time, method, and payment of expenses.
Rule 21: Report of the Children’s Lawyer
In decision-making responsibility and parenting time (child custody and access) cases, the Children’s Lawyer acts as a party to the case. Rule 21 dictates the rights and obligations of the Children’s Lawyer under section 112 of the Courts of Justice Act. The goal is to enable the Children’s Lawyer to investigate and report on the child’s custody, access, education, and health. The lawyer may serve the notice of the report to other parties, enabling them to dispute any part.
Rule 22: Admission of Facts
Family law cases require the submission of many facts and documents. Rule 22 allows one party to serve another party a request to admit they are accurate and genuine. The other party can refuse to accept the accuracy or genuineness of a fact or document within 20 days. Otherwise, the facts or documents will be considered accurate and genuine. Withdrawing an admission may only occur with the consent of the requesting party or the court.
Rule 23: Evidence and Trial
Rule 23 sets out the process for submitting evidence to the court, starting with a trial record of all documents, expert reports, orders, and assessments. All parties can add to the trial record within seven days of serving and filing.
Any party wishing to bring in witnesses may serve a summons to witness using the proper forms and paying the required fees. The court may choose to issue a warrant of arrest for critical witnesses failing to obey a summons. An opposing party may also be called as a witness. Failure to obey may have adverse consequences for that party.
The rule also specifies the various methods for obtaining and using evidence in court. The evidence may be a witness statement, recording, or affidavit. An affidavit is typically acceptable in an uncontested trial unless the judge says otherwise.
Rule 24: Costs
Family law cases can be expensive, especially if the parties are combative. Rule 24 works on the presumption that the successful party gets back the costs of litigation. However, that is not always the case. The presumption does not apply in child protection cases or where the other party is a government agency.
When determining the cost consequences for each party, the court looks to Rule 24(12). It often considers the behaviour and time spent of each party, offers to settle, legal fees, expert witness fees, and other relevant expenses. The court may decide to award costs to the party that acts in good faith and comes to court prepared. Rule 24 also looks negatively at lawyers or agents that run up costs without cause.
Rule 25: Orders
A court judge can make an order without trial if the parties consent. Rule 25 stipulates which parties can draft an order for signing by the judge or clerk using specific forms. A family law lawyer typically draws an order per the conditions outlined in this rule or by the relevant law.
The parties may also dispute the order using the correct forms and within the prescribed time frame. The judge shall settle the dispute. Most orders must be served to the appropriate parties, except for a support deduction order.
Rule 26: Enforcement of Orders
Court orders are just as good as the ability to enforce them, as specified in Rule 26. It creates scenarios for where and how to implement an order. Enforcing payment orders refers to different sections of the Rules, particularly Rules 27, 28, 29, and 30.
Rule 26 also specifies enforcement methods for other orders and special forms for a statement of money owed. It includes enforcement of administrative costs and transfer of enforcement under the Family Responsibility and Support Arrears Enforcement Act, 1996. A significant portion of Rule 26 refers to enforcing orders under the Divorce Act.
Rule 27: Requiring Financial Information
Rule 27 addresses the issues that may arise when a payment order is in default. The recipient has the right to request financial information from the payor once every six months.
If the court orders it, the payor must serve it within ten days, following Rule 13 for financial statements. Failure to do so may result in prison time of not more than 40 days. The court may also order the payor’s income source to serve and file an income statement.
Alternatively, the recipient may serve the payor with an appointment request for a financial examination based on the prescribed scope. Resistance to the review may also result in imprisonment of not more than 40 days.
Rule 28: Seizure and Sale
What happens when a payor refuses to pay? Rule 28 states the recipient may file a request for a writ of seizure and sale of the payor’s property or a statement of money owed. In either case, there is a statutory declaration to the sheriff. Upon payment, the recipient must file a statutory declaration of payment details to enable the sheriff to amend the writ.
The rule specifies that the recipient has the power to withdraw a writ. Any court in Ontario, on motion, may change the terms of a writ, withdraw it, or temporarily suspend it.
Rule 29: Garnishment
Garnishment is one method of payment order enforcement provided in the Rules. Rule 29 describes the issuance of notice, serving the notice, and the effect and duration of a notice of garnishment. The rule stipulates to whom the garnishment applies and the division of joint debts. It also describes how payments are received and disbursed.
The garnishment does not end when the debt is paid as it attaches to future payments. The rule discusses the process attached to disputes, indexed support (to accommodate inflation), garnishment hearings, and modification of garnishment notices. Rule 29 further describes a variety of notices that apply to different scenarios.
Rule 30: Default Hearing
Rule 30 addresses support payments and the rights of a recipient to file a request for a default hearing against the payor. The payor has ten days to respond and file a default dispute. In the absence of a dispute, the presumption is the statement of money owed. The court may decide whether the arrears are enforceable on the hearing date. Rule 30 sets out the consequences if the court issues a warrant of committal.
Rule 31: Contempt of Court
It’s never a good idea to go against court orders because it opens you up to a contempt order. Rule 31 lays down the process and consequences of violating a court order other than a payment order. When served with a notice of contempt order with a supporting affidavit, the court may issue a warrant of arrest for the person served.
Additionally, Rule 31 enumerates the various contempt orders the court may issue. These include imprisonment, fines, writ of seizure against property, and anything else the court considers appropriate.
Rule 32: Bonds, Recognizances, and Warrants
Failing to come to court after being served with a case, motion, or enforcement may result in a court order that requires a bond. The court may issue a warrant of arrest for that person or hear the case in absentia. Rule 32 sets out the conditions, forms, and processes for posting a bond, entering recognizance, or posting bail. It also explains the motion to enforce, forfeit, and cancel a bond.
Rule 33: Child Protection
Rule 33 sets out the forms and timetable for all child protection cases and the assignment of the judge. It allows the court to lengthen completion for any step in a case if it is in the child’s best interest. Parties do not have that option. The rule also sets out the requirements for parties serving a plan of care or supervision of a child.
Rule 34: Adoption
Rule 34 sets out the adoption process and refers to the Child and Family Services Act for defining terms. The rule includes the materials for filing adoption applications, depending on the child’s relationship with the applicant. The rule requires additional materials when a child is a Crown ward (foster child) and not a Crown ward. It also specifies a parent’s and child’s rights to legal advice.
Rule 35: Change of Name
Based on the Change Name Act, Rule 35 stipulates the deadline for a change of name application after the Registrar General refuses the request. The applicant shall serve the form and supporting material to the Registrar General. The Registrar General has 15 days to file the reasons for the refusal.
Rule 36: Divorce
Rule 36 guides the divorce process in court. These include the following:
- Who may apply for a divorce
- Allegation of adultery
- Central Divorce Registry Certificate
- Divorce based on affidavit evidence
- Role of the clerk
- Verification of the divorce certificate
Rule 37: Interjurisdictional Support Orders Act, 2002
In some cases, the applicant and respondent to a case may reside in different jurisdictions. Rule 37 interprets the court’s role in support cases under the Interjurisdictional Support Orders Act, 2002, or Act. It sets out the definition of terms and notice of hearing for a support application.
Rule 37 also specifies the required information and documents from the respondent and applicant, including financial statements. While most support applications are in writing, the respondent may request an oral hearing. Once the court arrives at a decision, the clerk serves each party a notice of order. The court clerk will also coordinate with reciprocating jurisdictions when necessary.
Subrule 37.1 deals separately with provisional orders as it applies to sections 18 and 19 of the Divorce Act and section 44 of the Family Law Act. These include documents to be sent by the origination court to the confirming court and notice of confirmation hearing. The two courts may request additional evidence from each other.
Rule 38: Appeals
Rule 38 sets out guidelines for appeals to the Divisional Court (Superior Court of Justice) or Court of Appeal for family law cases. It also addresses appeals for temporary orders and modifications in appeals for cases under the Child and Family Services Act.
The details set out in Rule 38 include the following:
- Starting an appeal from a final order of the Ontario Court of Justice (OCJ) to the Superior Court of Justice (SCJ)
- Starting an appeal from a temporary order of the OCJ to the SCJ or in a case under the Child and Family Services Act
- Contents of appellant’s appeal record and factum
- Respondent’s factum and appeal record
- Scheduling of hearings
- Motions and stays
- Withdrawal of appeal
Rule 39: Case Management in the Family Court of the Superior Court of Justice
Rule 39 only applies to some cases over which the Family Court of the Superior Court of Justice has jurisdiction. Excluded cases include child protection, support orders, enforcements, and secure treatment under the Child and Family Services Act (Part VI).
The rule deals specifically with standard and fast-track cases. Standard track cases deal with divorce and property claims.
Fast-track cases deal with all other family law cases, except for excluded cases. Rule 39 describes the features of standard and fast-track cases.
The clerk will serve a Notice of Dismissal for cases that have not been scheduled for trial within 200 days after starting. If no one responds within 30 days, the clerk will dismiss the case without further notice.
Rule 40: Case Management in the Ontario Court of Justice
Dealing only with cases in the Ontario Court of Justice, Rule 40 has many of the same provisions as Rule 39. However, it does not mention anything about standard and fast-track cases.
“The Family Law Rules gives basic legal information about the steps in a family case. However, they do not provide legal advice that may apply to your situation. It would be best to speak with a family law lawyer for advice regarding your case.”
Contact Nussbaum Law Today for Legal Advice
The Ontario Family Law Rules are in English (and Français), but that does not make it easier to understand. Even when distilled and with the legalese pared down to a minimum, the Rules can still be confusing. You can make critical mistakes when dealing with family law cases, and you cannot afford to make any.
You must consult with an experienced family law lawyer if you have a family law issue. Whether in Toronto or other jurisdictions covered by the Rules, you need qualified legal advice. For this, you can contact the lawyers at Nussbaum Law. They are your best family law resource in Ontario.
Family law can be complicated as several different laws may apply in your situation. Contact the experienced family law lawyers at Nussbaum Law for legal advice regarding divorce, child custody, child support, and other cases under family law.
FAQs on Ontario Family Law Rules
What is an urgent motion in family law Ontario?
Generally, you have to wait until after you’ve had a case conference to make a motion. However, in rare instances, you can make an urgent motion for a temporary order before a case conference. These include situations where failure to obtain a temporary order immediately may result in hardship or danger to you or a child.
What are the jurisdictions in Ontario wherein the Rules apply?
- City of Hamilton
- City of Kawartha Lakes
- City of Ottawa
- County of Frontenac
- County of Haliburton
- County of Lanark
- County of Lennox and Addington
- County of Middlesex
- County of Northumberland
- County of Peterborough
- County of Simcoe
- Regional Municipality of Durham
- Regional Municipality of York
- Territorial District of Muskoka
- The part of The Regional Municipality of Niagara that was the County of Lincoln as it existed on December 31, 1969
- United Counties of Leeds and Grenville
- United Counties of Prescott and Russell
- United Counties of Stormont, Dundas and Glengarry
What are the three Ontario courts with jurisdiction over family law matters?
- Family Court of the Superior Court of Justice
- Superior Court of Justice
- Ontario Court of Justice