Family Law Rules in Ontario (referred to as “the Rules” hereinafter) are regulations that apply to all family law cases in Ontario’s courts. These rules can also be applied for interpretation, enforcement, and/or variation of domestic contracts, including marriage contracts, cohabitation agreements, separation agreements, paternity agreements, family arbitration agreements, or family arbitration awards.
When read in conjunction with the provincial Family Law Act, R.S.O. 1990, c. F.3, the Children’s Law and Reform Act, as well as the federal Divorce Act, the Rules are an essential tool in moving your family law matter forward. They dictate what documents you must serve and to whom within how many days, set out what documents need to be filed with the court and within what timelines. They also outline what forms should be used when seeking specific relief from the court and guide what level of the court has jurisdiction over a particular issue. Family law litigants must abide by the Rules. Failure to adhere to the Rules often leads to incurring unnecessary legal costs, as well as lasting repercussions on the merits of a party’s case, such as costs ordered against them, or even worse, causing the court to draw an adverse inference against that party.
This article explains the most important and commonly referenced rules within the context of family law in Ontario. After reading this piece, you will gain some basic knowledge of where to start a court case, the importance of providing financial disclosure, how to change a final order or agreement, and the potential cost consequences in family litigation. The descriptions below are basic summaries and should not be taken as conclusive legal research. You should speak with a legal professional to determine what rules are applicable in your case and how they can help you achieve your objectives.
Rule 5: Where a Case Starts and Is To Be Heard
Where to start your court case is an essential question as it can be challenging to change jurisdictions once your file is commenced. If both parties live in the vicinity of one another or are still living together in the same house, this question may be irrelevant. However, if one party now lives in a different municipality or if the children are travelling back and forth between the parents, this would be an issue that requires much contemplation before starting litigation.
Rule 5(1) states that a case shall be started where a party who files the Application resides, where the child who is the subject of a custody/access litigation ordinarily resides, or in a municipality chosen by all parties if the court gives permission in advance. There are some exceptions to this, but the general understanding is that the case will be heard in a courthouse location where the party who starts the court proceeding lives or where the children usually live.
One exception to the above is Rule 5(2), where there is an immediate danger that a child may be removed from Ontario or immediate danger to a child’s or a party’s health or safety. In such cases, an Application can be filed in any municipality, and the case will be eventually transferred to the appropriate jurisdiction once the emergency motion is dealt with.
If you meet none of the above criteria, the clerk at the filing counter can refuse to accept your Application.
It should be noted that different levels of the court have jurisdiction over various subject matters. For example, cases that involve divorce and/or division of matrimonial property can only be heard in Superior Court of Justice because the subject matter falls under federal legislation. In contrast, cases that involve issues of child protection or adoption must be heard in the Ontario Court of Justice, as provincial laws govern these areas. Appeals of final orders or arbitration awards can be heard in the Superior Court of Justice, Divisional Court, or the Ontario Court of Appeal.
Therefore, it is important to find out where Ontario courthouses are located and what level of the court has jurisdiction over your matter.
Rule 13: Financial Disclosure
Financial disclosure is one of the most, if not the most, crucial piece of documentation that you can provide to and seek from the other party. Whether you are signing the most basic domestic contract or engaged in litigation, it is imperative you fully understand what your financial rights and obligations are. This can only be done through an exchange of full and frank financial disclosure with the other party.
Financial disclosure is essential because the determination of almost all economic issues in family law rests on what is revealed in the financial disclosure. Examples of these legal issues include, but are not limited to, division of marital property, exclusive possession of the matrimonial home and its contents, spousal support, child support, special and extraordinary expenses for the children (also known as Section 7 expenses), security for support, and resulting/constructive trust.
Financial disclosure comprises several different types of documents; depending on the claim you are making, different pieces of financial information will be required. The most common pieces of financial disclosure exchanged by the parties are each party’s Financial Statement, income tax returns and notices of assessment for last three years, most recent pay stubs, employment contracts, bank statements, investment statements, and/or other benefits or income statements each party is receiving. Sometimes you might have to include charts listing the expenses that relate to the children or the marital home, as well as corresponding receipts. These documents must be delivered within a specific timeframe. Parties, if they suspect that the other party is not being forthright in disclosing their real financial circumstances, can request further supplementary documentation. Suppose the parties are engaged in a dispute over whether the requested documents are relevant and necessary to the proceeding. In that case, the party who requested the documents can bring a motion for a production order.
Disclosure is an ongoing obligation, and the information provided to the other party must be accurate, current, and relevant. The courts expect the parties to fulfill their disclosure obligations; failure to comply with the Rules might result in an adverse inference being drawn by the judge hearing the motion or trial. This usually means that the court will find the party who has not fulfilled his/her financial disclosure obligations has more than s/he has disclosed on paper, which may lead impact the final determination of the financial issues to that party’s detriment.
Providing complete disclosure on time saves everybody time and legal costs.
Rule 15: Motions to Change a Final Order or Agreement
This is the applicable rule when you bring a motion to change custody (in Ontario) a final court order or an agreement for support filed with the court under Section 35 of the Family Law Act. Note that this rule is not applicable when you want to change an order made under the provincial child protection legislation.
You might bring a motion to change custody because your employment status changed since the last time you were ordered to pay child and/or spousal support, your child is no longer living with the other parent, or you and your new partner must move with the child. These are just a couple of examples of life events that may qualify as a ‘material change in circumstances’ in triggering the alteration of final order or agreement.
The burden of proof is on the party seeking a change in the final order or agreement; he or she must show that a material change occurred since the date of the order or agreement, and had the court been aware of these new circumstances, a different order or agreement would have been made. This means that if the life event on which you are relying would not have led to a different legal result, you will likely be unsuccessful in your motion to change custody.
If you are served with materials from the other party who commenced a motion to change, you must serve and file a response to the motion to change or a consent motion to change custody in return. If you do not agree to the change requested by the other party, or if you want to ask the court to make an additional or a different change to the final order or agreement, you must serve and file a response. Otherwise, you risk not participating in the case in any way, and the court may deal with the case in your absence.
Therefore, it is vital to respond to the motion to change custody on time.
Rule 24: Costs
Family law proceedings can be costly. This is mainly the case when the case is high-conflict, and the parties are litigious; adamance in their respective positions, numerous motions, and failure to abide by the procedural timelines are some of the most common causes in driving up legal costs.
There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case, or appeal. This means that if you are the party who was successful in obtaining the relief you sought from the court, the court will presumptively order the other party to pay for some – and quite rarely, all – of your legal costs. This presumption can be rebutted if the successful party behaved unreasonably throughout the proceeding. If you do not act reasonably, the court may not award you any costs, or even worse, order you to pay for the other party’s costs, even if you were successful in your case.
In most family law cases, success is ‘divided.’ This means that it is infrequent that one party will triumph in obtaining all the relief they seek from the court, and the other party will lose on every issue. If this is the case, the court can divide costs as appropriate.
In setting the number of costs, the court must consider the following factors as per Rule 24(12):
The reasonableness and proportionality of the following factors, concerning the importance and complexity of the issues:
- Each party’s behaviour
- Time spent by each party
- Any written offers to settle
- Any legal fees, including the number of lawyers and their rates
- Any expert witness fees, including the number of experts and their rates
- Any other expenses
- Any other relevant matter
Some of the most surefire ways to have costs awarded against you are showing up to court unprepared, not showing up at all, or acting in bad faith. It takes a considerable amount of funds and preparation time for a court appearance; therefore, judges do not look favourably upon parties who do not use their time wisely to prepare for a case or entirely ignore their obligations to the court.
If a party is found to have acted in bad faith, the court is mandated by the Rules to order costs on a full recovery basis against them. However, because this is a drastic and ultimate measure, courts are cautious in finding bad faith. Proving that the other party acted in bad faith is a high legal threshold; it is best to consult a legal professional before alleging this ground in your cost submissions.
Family Law Rules in Ontario – Closing Remarks
The Rules are a vital part of the family court system. They are an essential toolkit to safeguard procedural fairness and efficiency for all litigants. The above four rules are only a small portion of the regulations, albeit arguably some of the most critical provisions, that can help you move your matter forward. You can only be successful in your case if you observe and comply with these rules. They provide legal guidance and boundaries in a process that can be one of the most turbulent and challenging times in your life.
The above information is NOT legal advice of any kind, and you should be sure to speak to a qualified family law lawyer about your specific situation and for questions about family law rules in Ontario. For more information, call us at 905-273-4588 or email us at contact@kainfamilylaw.com to book a free 30-minute consultation with one of our experienced family law lawyers at Kain & Ball Family Law.