O. Reg. 388/12: FAMILY LAW RULES

Link to law: http://www.ontario.ca/laws/regulation/r12388
Published: 2012-11-30

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ontario regulation 388/12

made under the

Courts of Justice Act

Made: October 15, 2012
Approved: November 28, 2012
Filed: November 30, 2012
Published on e-Laws: November 30, 2012
Printed in The Ontario Gazette: December 15, 2012


Amending O. Reg. 114/99

(FAMILY LAW RULES)

1. (1) Clause 1 (2) (b) of Ontario Regulation 114/99 is amended by striking out “separation agreement or paternity agreement” at the end and substituting “separation agreement, paternity agreement, family arbitration agreement or family arbitration award”.

(2) Subrule 1 (2) of the Regulation is amended by striking out “and” at the end of clause (c), by adding “and” at the end of clause (d) and by adding the following clause:

(e) for appeals of family arbitration awards under the Arbitration Act, 1991.

2. Subrule 2 (1) of the Regulation is amended by adding the following definitions:

“arbitration agreement” means an agreement by which two or more persons agree to submit to arbitration a dispute that has arisen or may arise between them; (“convention d’arbitrage”)

“family arbitration” means an arbitration that,

(a) deals with matters that could be dealt with in a marriage contract, separation agreement, cohabitation agreement or paternity agreement under Part IV of the Family Law Act, and

(b) is conducted exclusively in accordance with the law of Ontario or of another Canadian jurisdiction; (“arbitrage familial”)

“family arbitration agreement” and “family arbitration award” have meanings that correspond to the meaning of “family arbitration”; (“convention d’arbitrage familial”, “sentence d’arbitrage familial”) 

3. Rule 8 of the Regulation is amended by adding the following subrules:

enforcement of family arbitration award

(1.1) Despite subrule (1), a person who is entitled to the enforcement of a family arbitration award and who wants to ask the court to enforce the award under section 59.8 of the Family Law Act may do so by filing a request to enforce a family arbitration award (Form 32.1) under rule 32.1.

When Required to proceed by motion

(1.2) Despite subrules (1) and (1.1), if there is already a family law case to which these rules apply between the parties to the family arbitration agreement in the Superior Court of Justice or the Family Court of the Superior Court of Justice, the party entitled to enforcement shall make a motion in that case rather than an application under this rule or a request under rule 32.1, and subrule 14 (24) applies in respect of the motion.

. . . . .

Claim relating to Family Arbitration

(3.2) An application containing a claim under the Arbitration Act, 1991

or the Family Law Act relating to a family arbitration, family arbitration agreement or family arbitration award shall be accompanied by,

(a) copies of the certificates of independent legal advice required by the Family Law Act

for the parties;

(b) a copy of the family arbitration agreement; and

(c) if an award has been made, the original award or a certified copy.

4. Subrule 8.1 (2) of the Regulation is amended by striking out “or” at the end of clause (d) and by adding the following clause:

(d.1) parties to an application in which the only claims made in the application and any answer relate to a family arbitration, family arbitration agreement or family arbitration award, unless the court orders otherwise; or

5. Rule 13 of the Regulation is amended by adding the following subrules:

Exception, family arbitration claim

(1.4) If the only claim contained in the application, answer or motion is a claim under the Arbitration Act, 1991 or the Family Law Act relating to a family arbitration, family arbitration agreement or family arbitration award, the party making the claim is not required to file a financial statement, unless the court orders otherwise.

. . . . .

Exception, family arbitration claim

(14.1) Subrule (14) does not apply if the property claim arises within a claim under the Arbitration Act, 1991 or the Family Law Act relating to a family arbitration, family arbitration agreement or family arbitration award.

6. (1) Clause 14 (6) (f) of the Regulation is amended by striking out “subrule 37 (8) or 37.1 (8)” and substituting “subrule 32.1 (10), 37 (8) or 37.1 (8)”.

(2) Rule 14 of the Regulation is amended by adding the following subrule:

Motion relating to Family Arbitration

(24) A party who wishes to make a claim under the Arbitration Act, 1991 or the Family Law Act relating to a family arbitration, family arbitration agreement or family arbitration award that must or may be commenced by way of a motion may do so under this rule, even if the order being sought is a final order and, for the purpose, this rule applies with the following and any other necessary modifications:

1. In addition to the documents referred to in subrule (9) or (10), the motion also requires,

i. copies of the certificates of independent legal advice required by the Family Law Act for the parties,

ii. a copy of the family arbitration agreement, and

iii. if an award has been made, the original award or a certified copy.

2. The documents referred to in subparagraphs 1 i, ii and iii shall be served and filed in accordance with subrule (11).

3. In the case of a motion to enforce a family arbitration award under section 59.8 of the Family Law Act, subrules (12) to (15) do not apply.

7. Subrule 17 (12) of the Regulation is revoked and the following substituted:

When conferences optional

(12) A case conference, settlement conference or trial management conference is not required, but may be held at a party’s request or on a judge’s direction in the following circumstances:

1. In an enforcement.

2. In a request to enforce a family arbitration award under rule 32.1.

8. The Regulation is amended by adding the following rule:

Rule 32.1:  Enforcement of family arbitration awards

Requesting Enforcement

32.1 (1) A party who is entitled to the enforcement of a family arbitration award and who wants to ask the court to enforce the award under section 59.8 of the Family Law Act may file a request to enforce a family arbitration award (Form 32.1), together with,

(a) copies of the certificates of independent legal advice required by the Family Law Act

for the parties to the family arbitration agreement;

(b) a copy of the family arbitration agreement; and

(c) the original award or a certified copy.

When Required to proceed by motion

(2) Despite subrule (1), if there is already a family law case to which these rules apply between the parties to the family arbitration agreement in the Superior Court of Justice or the Family Court of the Superior Court of Justice, the party entitled to enforcement shall make a motion in that case rather than a request under this rule, and subrule 14 (24) applies in respect of the motion.

Application of other rules

(3) The rules that apply to an application apply to a request to enforce a family arbitration award that is proceeding under this rule, unless these rules provide otherwise.

Hearing Date

(4) When a request to enforce a family arbitration award is filed, the clerk shall set a hearing date.

Service

(5) The request shall be served immediately on every other party.

Request NOT SERVED ON OR BEFORE Hearing DATE

(6) If a request to enforce a family arbitration award is not served on a respondent on or before the hearing date, the clerk shall, at the applicant’s request, set a new hearing date for that respondent, and the applicant shall make the necessary change to the request and serve it immediately on that respondent.

Opposing a Request

(7) Despite subrule 10 (1) (serving and filing answer), a respondent who wants to oppose a request to enforce a family arbitration award shall serve a dispute of request for enforcement (Form 32.1A) on every other party and file it,

(a) no later than 30 days after being served with the request; or

(b) if the request is served outside Canada or the United States of America, no later than 60 days after being served with the request.

Written Hearing

(8) Unless the court orders otherwise under subrule (10), the request shall be dealt with on the basis of written documents without the parties or their lawyers needing to come to court.

Request for Oral Hearing

(9) A respondent may request an oral hearing by filing a motion (Form 14B) within seven days after being served with the request to enforce a family arbitration award.

Order for Oral hearing

(10) The court may order an oral hearing, on motion or on its own initiative, if it is satisfied that an oral hearing is necessary to deal with the case justly.

9. Paragraph 5 of subrule 34 (6) of the Regulation is amended by striking out “(Form 35G.1)” and substituting “(Form 34G.1)”.

10. Rule 38 of the Regulation is amended by adding the following subrules:

Appeals, family arbitration awards

(46) Subrules (5), (8) to (21), (23) and (25) to (32) apply, with necessary modifications, including the modifications set out in subrules (47) to (55), to the appeal of a family arbitration award under section 45 of the Arbitration Act, 1991 and, for the purpose,

(a) a reference to the Ontario Court of Justice or to the court being appealed from shall be read as a reference to the arbitrator who made the family arbitration award; and

(b) a reference to the order or decision being appealed from shall be read as a reference to the family arbitration award.

Same, Service

(47) In addition to the persons listed under clause (5) (a), the appellant shall serve the notice of appeal on the arbitrator.

Same, Contents of appellant’s appeal record

(48) The material referred to in paragraph 5 of subrule (17) shall include,

(a) copies of the certificates of independent legal advice required by the Family Law Act

for the parties;

(b) a copy of the family arbitration agreement; and

(c) the original family arbitration award or a certified copy.

Same, If Leave required

(49) If the appeal of a family arbitration award requires the leave of the court, rule 14 applies, with necessary modifications, including the modifications set out in subrules (50) to (55), to the motion for leave to appeal, other than subrules 14 (4), (4.2), (6), (7), (10) to (15) and (17).

Same

(50) The notice of motion (Form 14) shall,

(a) be served on every other party affected by the appeal or entitled to appeal and on the arbitrator no later than 15 days after the making of the family arbitration award; and

(b) be filed no later than five days after service. 

Same

(51) The affidavit (Form 14A) and any additional evidence mentioned in clause 14 (9) (b) shall be served and filed no later than 30 days after the filing of the notice of motion for leave to appeal, together with,

(a) a copy of the notice of motion;

(b) the documents listed in subrule (48); and

(c) a factum consisting of a concise argument stating the facts and law relied on by the party making the motion.

Same

(52) The notice of motion and factum shall set out the specific questions that it is proposed the court should answer on appeal if leave to appeal is granted.

Same

(53) Any response to the motion for leave to appeal by a party shall be served and filed no later than 15 days after the materials referred to in subrule (51) were served on the party.

Same

(54) The clerk shall fix a date for the hearing of the motion, which shall not, except with the consent of the party responding to the motion, be earlier than 15 days after the filing of the materials referred to in subrule (51).

Same

(55) If leave to appeal is granted,

(a) the notice of appeal shall be served no later than seven days after the granting of leave; and

(b) the 30-day deadline set out in clause (5) (a) does not apply, but the filing deadline set out in clause (5) (b) continues to apply.

11. (1) Clause 39 (2) (b) of the Regulation is revoked and the following substituted:

(b) cases under rule 32.1, 37 or 37.1; or

(2) Subrule 39 (7) of the Regulation is revoked and the following substituted:

Standard Track

(7) Applications in which the applicant makes any of the following claims are standard track cases (subrule (8)):

1. A claim for divorce.

2. A property claim.

3. A claim under the Arbitration Act, 1991 or the Family Law Act relating to a family arbitration, family arbitration agreement or family arbitration award.

12. Clause 41 (2) (b) of the Regulation is revoked and the following substituted:

(b) cases under rule 32.1, 37 or 37.1.

13. (1) The Table of Forms to the Regulation is amended by striking out,

 


8


Application (general)


June 15, 2007



. . . . .

 


10


Answer


September 1, 2005



and substituting,

 


8


Application (general)


October 1, 2012



. . . . .

 


10


Answer


October 1, 2012



(2) The Table of Forms to the Regulation is amended by adding the following:

 


32.1


Request to enforce a family arbitration award


October 1, 2012




32.1A


Dispute of request for enforcement


October 1, 2012




Commencement

14. This Regulation comes into force on the day it is filed.

 

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