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Partition and Sale of the Family Home

April 30th, 2017 by

Transcript – Blog Video – Partition & Sale of the Family Home

My name is Angela Princewill and I would like to talk to you about partition and sale of the matrimonial home.

You might be experiencing a situation where your partner is not agreeing to buy out your interest in the home and is also not agreeing to the home being put up for sale.

It might seem like there is no way out and today we want to talk to you about an option that is available to you under the Partitions Act which can compel your partner to put up that home for sale or otherwise buyout your interest in the property.

According to the Partitions Act, so long as you have an interest in a property, whether it is a legal or equitable interest, you have a right to seek that that property be partitioned and sold. The partition is so that your interest in the property can be divided—separated so to speak—from your partner’s and you can get whatever value that you seek for your portion of the property.

The key factors to know is that the property has to be situated in Ontario; it also does not matter whether or not you have legal title to the property. In other words, you may not be on title to the home and you would still have this remedy available to you.

If all options for negotiation have been exhausted, you need to bring an Application to court and make sure to check the box that you are asking for the sale of the matrimonial home. The court will grant that order except where there are compelling reasons why the home should not be partitioned and your share sold off.

It is very fact based and the court will look at each case based on its merit. There have been different reasons that we have seen in our practice as to why people have raised the issue of why it is not appropriate for the home to be sold or partitioned.

If it is not going to affect the other person’s interest negatively—when we say negatively, we do not simply mean there will be no negative impact at all, the other side may have an interest in holding on to the property for whatever reason and a partition and sale might negatively affect them—the court will likely grant the order. But it will be very fact based.

At the end of the day, your job is to make sure that you present it to a judge to see that whatever factors or reasons that the other side is presenting for not putting up the home for sale, that they are not good reasons and are not sufficient reasons to block you being able to get value for your interest in the property.

The partition and sale of a matrimonial home can get quite technical. It is generally not requested under the Family Law Act, even though there are some provisions there that speak to this. It generally can only be compelled under the Partitions Act.

But the take away from this video is to know that there are options. You do not always have to wait for the other side to consent and as always it is best to approach things from a negotiation perspective.

But if those are falling through, do not feel all hope is lost and that perhaps because you are not on title to this property that you do not have any remedy.

Realize that so long as that property is in Ontario that you do have an interest in the property, whether it is a legal interest or an equitable interest, that there is a remedy to you to be able to get value for that interest.

I hope this is helpful to you. You can refer to the Partitions Act as well as the Family Law Act of Ontario, or you can give us a call or send us an email.

We would be happy to show you how those specific provisions of the Act may be applicable in your case.

www.aprincewill.com | 905-492-7662 | [email protected]

Settlement Conferences and Trial Management Conferences in Ontario Family Courts

January 22nd, 2016 by

Before a family law case can be heard in front of a judge on trial, there are many steps that need to be initiated that encourage the parties to settle disputes and issues from early on so that the matter does not have to end in trial. There are many reasons why it is better to stay away from taking your family law case to trial. These range from court expenses, to delayed settlements and long wait times, unpredictable outcomes, waste of judicial time etc.

Trial periods are long, expensive and can take a toll on your health and life. This is why settlement and trial management conferences were implemented to assist in resolving issues between parties in family law matters.

Settlement Conference

The purpose of a settlement conference is for both parties to come before a judge and discuss the issues in dispute and methods to resolve the issues without interference of the court. This conference follows after a case conference to which the judge has a duty to listen to each party, assess the issues at dispute and give their opinion as to about how your case will be decided should you go to trial. As a party to the proceedings, you have a right to listen or ignore the opinion of the judge, however, there are many added benefits to making the most out of your time at a settlement conference.

Some advantages of a settlement conference include, but are not limited to, saving money, saving time, avoiding trial and the stress/costs that are attached to it and having the flexibility of choosing your own settlement rather than having someone else choose it for you. You are free to discuss your case in a wholesome manner to which the judge will use his experience and knowledge to provide an opinion and point out any procedural issues brought up. Keep in mind that a good settlement is when both the parties have reached a fair compromise. To learn more about offers to settle, look at rule 18 of the Family Law Rules.

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In terms of supporting documents, make sure to also bring with you a copy of the Trial Management Conference Form 17E. It is imperative that this is filed and served to before the conference at least 7 days prior if you are the Applicant and 4 days prior if your are the Respondent.

After the trial management conference, the next and final stage is the trial so it is crucial that all details are discussed before the trial occurs.

Our approach in representing you in your family law matter

January 13th, 2016 by

Case Conferences in Ontario Family Court

November 30th, 2015 by

Case Conferences

A Case Conference, is an important part of the Family Law Court process. Pursuant to Rule 17 of the Family Law Rules, a Case Conference is a meeting, usually chaired by a judge, with the Applicant, Respondent and their lawyers, if any. If anyone else, such as Children’s Aid Society (CAS), Family Responsibility (FRO) or a Children’s Lawyer is directly involved, they will also be a part of the Case Conference.  A judge chooses to meet only with the lawyers or with the lawyers and their clients to discuss the issues and how the case will go forward.

Goals of a Case Conference

Case Conferences take place early in a Family Law case for a chance explore settlement, identify which issues are in dispute, determine the strengths and weaknesses of each parties’ position, explore ways to resolve disputed issues (in and outside of court) and set up a date for the next steps involved in the matter such as a Settlement Conference.

A judge may encourage the parties’ to speak frankly about their positions so that he or she may make procedural orders so that the case proceeds more efficiently. Usually there are some issues that are left unresolved or some issues are determined on a temporary or final basis by virtue of the judge’s Endorsement.

If the parties reach an agreement on an issue, the judge may ask the lawyers to write it down and have each party sign it. If desired, this can be turned into a court order.

Do I need a Case Conference?

A Case Conference is a crucial step in a Family Law proceeding and is required if any party wants the court to make a temporary order about any of the issues, hear a motion to change a final order or agreement and proceed further with the matter.

There are exceptions to bringing a motion before a Case Conference based on urgency or hardship but a Case Conference is usually held before any notice of motion or hearing. Exceptions are listed in Rule 14(6) of the Family Law Rules.

Should you choose to skip a Case Conference and the judge determines that your matter is not urgent, you may be ordered to pay court costs for the other party. These costs could include all or part of the other party’s lawyer fees.

Documents required for a Case Conference

Case Conference Brief
Case Conference Brief

Each party must serve and file their Case Conference Brief (Form 17A) on the other party. The party that asked for the Case Conference has to serve and file their Brief at least 7 days before the scheduled conference. The other party has 4 days to serve and file their Brief before the conference date. If neither party requested a Case Conference, the Applicant has 7 days to serve and file and the Respondent has 4 days to serve and file before the conference date.

If child or spousal support is an issue in the case, the parties’ must also serve and file a Financial Statement Form (Form 13 or Form 13.1) or an Affidavit updating the existing Financial Statement.

It is important to have these documents served and filed within the specified time limits before the scheduled conference date because the other party, and the judge, need to review the material.

Can the judge make orders at the Case Conference?

In limited circumstances, the judge can make an order regarding the issues of the matter. The judge usually makes procedural orders which include disclosure of documents, questioning of a party or setting time lines. However, should there be an undisputed issue, such as child support based on the payer’s income and Child Support Guidelines, this can be ordered as well.

How can we help?

At A. Princewill Law Firm, we have the expertise to successfully ensure your best interests are represented before the court. In family law cases, it is very important and beneficial to get the assistance of a lawyer because as a party to the proceeding, this is very emotional and stressful. It is common to miss a crucial step in the process or not know what the next steps are which can disrupt your position on the issues.

We have the expertise, experience and knowledge to outline your rights and obligations for you. We will always support your best interests and our understanding of these processes makes it easier for us to represent everything you want and interests that you may not even be aware of. We will successfully guide you and walk you through the best approach for you and your situation. Contact us to schedule a consultation to discuss your Family Law matter today.

Family Law Rules – Rule 23: Evidence and Trial

November 21st, 2015 by

RULE 23:  EVIDENCE AND TRIAL

TRIAL RECORD

23. (1) At least 30 days before the start of the trial, the applicant shall serve and file a trial record containing a table of contents and the following documents:

1. The application, answer and reply, if any.

2. Any agreed statement of facts.

3. If relevant to an issue at trial, financial statements and net family property statements by all parties, completed not more than 30 days before the record is served.

3.1 If the trial involves a claim for custody of or access to a child, the applicable documents referred to in rule 35.1.

4. Any assessment report ordered by the court or obtained by consent of the parties.

5. Any temporary order relating to a matter still in dispute.

6. Any order relating to the trial.

7. The relevant parts of any transcript on which the party intends to rely at trial.

8. Any evidence that is the subject of an order made under clause 1 (7.2) (g).  O. Reg. 114/99, r. 23 (1); O. Reg. 202/01, s. 6 (1, 2); O. Reg. 6/10, s. 8 (1, 2); O. Reg. 69/15, s. 9 (1).

RESPONDENT MAY ADD TO TRIAL RECORD

(2) Not later than seven days before the start of the trial, a respondent may serve, file and add to the trial record any document referred to in subrule (1) that is not already in the trial record.  O. Reg. 114/99, r. 23 (2).

SUMMONS TO WITNESS

(3) A party who wants a witness to give evidence in court or to be questioned and to bring documents or other things shall serve on the witness a summons to witness (Form 23) by special service in accordance with subrule 6 (4), together with the witness fee set out in subrule (4).  O. Reg. 114/99, r. 23 (3); O. Reg. 322/13, s. 13.

WITNESS FEE

(4) A person summoned as a witness shall be paid, for each day that the person is needed in court or to be questioned,

(a) $50 for coming to court or to be questioned;

(b) travel money in the amount of,

(i) $5, if the person lives in the city or town where the person gives evidence,

(ii) 30 cents per kilometre each way, if the person lives elsewhere but within 300 kilometres of the court or place of questioning,

(iii) the cheapest available air fare plus $10 a day for airport parking and 30 cents per kilometre each way from the person’s home to the airport and from the airport to the court or place of questioning, if the person lives 300 or more kilometres from the court or place of questioning; and

(c) $100 per night for meals and overnight stay, if the person does not live in the city or town where the trial is held and needs to stay overnight.  O. Reg. 114/99, r. 23 (4).

MEANING OF “CITY OR TOWN”

(4.1) For the purposes of subrule (4), a municipality shall be considered a city or town if it was a city or town on December 31, 2002.  O. Reg. 92/03, s. 2.

CONTINUING EFFECT OF SUMMONS

(5) A summons to witness remains in effect until it is no longer necessary to have the witness present.  O. Reg. 114/99, r. 23 (5).

SUMMONS FOR ORIGINAL DOCUMENT

(6) If a document can be proved by a certified copy, a party who wants a witness to bring the original shall not serve a summons on the witness for that purpose without the court’s permission.  O. Reg. 114/99, r. 23 (6).

FAILURE TO OBEY SUMMONS

(7) The court may issue a warrant for arrest (Form 32B) to bring a witness before the court if,

(a) the witness has been served as subrule (3) requires, but has not obeyed the summons; and

(b) it is necessary to have the witness present in court or at a questioning.  O. Reg. 114/99, r. 23 (7).

INTERPROVINCIAL SUMMONS TO WITNESS

(8) A summons to a witness outside Ontario under the Interprovincial Summonses Act shall be in Form 23A.  O. Reg. 114/99, r. 23 (8).

SETTING ASIDE SUMMONS TO WITNESS

(9) The court may, on motion, order that a summons to witness be set aside.  O. Reg. 114/99, r. 23 (9).

ATTENDANCE OF A PRISONER

(10) If it is necessary to have a prisoner come to court or to be questioned, the court may order (Form 23B) the prisoner’s custodian to deliver the prisoner on payment of the fee set out in the regulations under the Administration of Justice Act.  O. Reg. 114/99, r. 23 (10).

CALLING OPPOSING PARTY AS WITNESS

(11) A party may call the opposing party as a witness and may cross-examine the opposing party.  O. Reg. 544/99, s. 9.

ATTENDANCE OF OPPOSING PARTY

(11.1) A party who wishes to call an opposing party as a witness may have the opposing party attend,

(a) by serving a summons under subrule (3) on the opposing party; or

(b) by serving on the opposing party’s lawyer, at least 10 days before the start of the trial, a notice of intention to call the opposing party as a witness.  O. Reg. 544/99, s. 9.

OPPOSING PARTY DISOBEYING SUMMONS

(12) When an opposing party has been served with a summons under subrule (3), the court may make a final order in favour of the party calling the witness, adjourn the case or make any other appropriate order, including a contempt order, if the opposing party,

(a) does not come to or remain in court as required by the summons; or

(b) refuses to be sworn or to affirm, to answer any proper question or to bring any document or thing named in the summons.  O. Reg. 114/99, r. 23 (12).

READING OPPOSING PARTY’S ANSWERS INTO EVIDENCE

(13) An answer or information given under rule 20 (questioning) by an opposing party may be read into evidence at trial if it is otherwise proper evidence, even if the opposing party has already testified at trial.  O. Reg. 114/99, r. 23 (13).

READING OTHER PERSON’S ANSWERS INTO EVIDENCE

(14) Subrule (13) also applies, with necessary changes, to an answer or information given by a person questioned on behalf of or in place of an opposing party, unless the trial judge orders otherwise.  O. Reg. 114/99, r. 23 (14).

USING ANSWERS — SPECIAL CIRCUMSTANCES

(15) Subrule (13) is subject to the following:

1. If the answer or information is being read into evidence to show that a witness’s testimony at trial is not to be believed, answers or information given by the witness earlier must be put to the witness as sections 20 and 21 of the Evidence Actrequire.

2. At the request of an opposing party, the trial judge may direct the party reading the answer or information into evidence to read in, as well, any other answer or information that qualifies or explains what the party has read into evidence.

3. A special party’s answer or information may be read into evidence only with the trial judge’s permission.  O. Reg. 114/99, r. 23 (15).

REBUTTING ANSWERS

(16) A party who has read answers or information into evidence at trial may introduce other evidence to rebut the answers or information.  O. Reg. 114/99, r. 23 (16).

USING ANSWERS OF WITNESS NOT AVAILABLE FOR TRIAL

(17) The trial judge may give a party permission to read into evidence all or part of the answers or information given under rule 20 (questioning) by a person who is unable or unwilling to testify at the trial, but before doing so the judge shall consider,

(a) the importance of the evidence;

(b) the general principle that trial evidence should be given orally in court;

(c) the extent to which the person was cross-examined; and

(d) any other relevant factor.  O. Reg. 114/99, r. 23 (17).

TAKING EVIDENCE BEFORE TRIAL

(18) The court may order that a witness whose evidence is necessary at trial may give evidence before trial at a place and before a person named in the order, and then may accept the transcript as evidence.  O. Reg. 114/99, r. 23 (18).

TAKING EVIDENCE BEFORE TRIAL OUTSIDE ONTARIO

(19) If a witness whose evidence is necessary at trial lives outside Ontario, subrules 20 (14) and (15) (questioning person outside Ontario, commissioner’s duties) apply, with necessary changes.  O. Reg. 114/99, r. 23 (19).

EVIDENCE BY AFFIDAVIT, OTHER METHOD

(20) A party may request that the court make an order under clause 1 (7.2) (i) permitting the evidence of a witness to be heard by affidavit or another method not requiring the witness to attend in person. O. Reg. 69/15, s. 9 (2).

(20.1) Revoked: O. Reg. 69/15, s. 9 (2).

CONDITIONS FOR USE OF AFFIDAVIT OR OTHER METHOD

(21) Evidence at trial by affidavit or another method not requiring a witness to attend in person may be used only if,

(a) the use is in accordance with an order under clause 1 (7.2) (i);

(b) the evidence is served at least 30 days before the start of the trial; and

(c) the evidence would have been admissible if given by the witness in court.  O. Reg. 114/99, r. 23 (21); O. Reg. 202/01, s. 6 (4); O. Reg. 69/15, s. 9 (3, 4).

AFFIDAVIT EVIDENCE AT UNCONTESTED TRIAL

(22) At an uncontested trial, evidence by affidavit in Form 14A or Form 23C and, if applicable, Form 35.1 may be used without an order under clause 1 (7.2) (i), unless the court directs that oral evidence must be given.  O. Reg. 114/99, r. 23 (22); O. Reg. 202/01, s. 6 (5); O. Reg. 6/10, s. 8 (3); O. Reg. 69/15, s. 9 (5).

EXPERT WITNESS REPORTS

(23) A party who wants to call an expert witness at trial shall serve on all other parties a report signed by the expert and containing the information listed in subrule (25),

(a) at least 90 days before the start of the trial; or

(b) in the case of a child protection case, at least 30 days before the start of the trial.  O. Reg. 6/10, s. 8 (4).

SAME, RESPONSE

(24) A party who wants to call an expert witness at trial to respond to the expert witness of another party shall serve on all other parties a report signed by the expert and containing the information listed in subrule (25),

(a) at least 60 days before the start of the trial; or

(b) in the case of a child protection case, at least 14 days before the start of the trial.  O. Reg. 6/10, s. 8 (4).

SAME, CONTENTS

(25) A report provided for the purposes of subrule (1) or (2) shall contain the following information:

1. The expert’s name, address and area of expertise.

2. The expert’s qualifications and employment and educational experiences in his or her area of expertise.

3. The substance of the expert’s proposed evidence.  O. Reg. 6/10, s. 8 (4).

SUPPLEMENTARY REPORT

(26) Any supplementary expert witness report shall be signed by the expert and served on all other parties,

(a) at least 30 days before the start of the trial; or

(b) in the case of a child protection case, at least 14 days before the start of the trial.  O. Reg. 6/10, s. 8 (4).

FAILURE TO SERVE EXPERT WITNESS REPORT

(27) A party who has not followed a requirement under subrule (23), (24) or (26) to serve and file an expert witness report, may not call the expert witness unless the trial judge allows otherwise.  O. Reg. 6/10, s. 8 (4).

Family Law Rules – Rule 21: Report of Children’s Lawyer

November 21st, 2015 by

RULE 21:  REPORT OF CHILDREN’S LAWYER

REPORT OF CHILDREN’S LAWYER

21. When the Children’s Lawyer investigates and reports on custody of or access to a child under section 112 of the Courts of Justice Act,

(a) the Children’s Lawyer shall first serve notice on the parties and file it;

(b) the parties shall, from the time they are served with the notice, serve the Children’s Lawyer with every document in the case that involves the child’s custody, access, support, health or education, as if the Children’s Lawyer were a party in the case;

(c) the Children’s Lawyer has the same rights as a party to document disclosure (rule 19) and questioning witnesses (rule 20) about any matter involving the child’s custody, access, support, health or education;

(d) within 90 days after serving the notice under clause (a), the Children’s Lawyer shall serve a report on the parties and file it;

(e) within 30 days after being served with the report, a party may serve and file a statement disputing anything in it; and

(f) the trial shall not be held and the court shall not make a final order in the case until the 30 days referred to in clause (e) expire or the parties file a statement giving up their right to that time.  O. Reg. 114/99, r. 21.

Family Law Rules – Rule 22: Admission of Facts

November 21st, 2015 by

RULE 22:  ADMISSION OF FACTS

MEANING OF ADMISSION THAT DOCUMENT GENUINE

22. (1) An admission that a document is genuine is an admission,

(a) if the document is said to be an original, that it was written, signed or sealed as it appears to have been;

(b) if it is said to be a copy, that it is a complete and accurate copy; and

(c) if it is said to be a copy of a document that is ordinarily sent from one person to another (for example, a letter, fax or electronic message), that it was sent as it appears to have been sent and was received by the person to whom it is addressed.  O. Reg. 114/99, r. 22 (1).

REQUEST TO ADMIT

(2) At any time, by serving a request to admit (Form 22) on another party, a party may ask the other party to admit, for purposes of the case only, that a fact is true or that a document is genuine.  O. Reg. 114/99, r. 22 (2).

COPY OF DOCUMENT TO BE ATTACHED

(3) A copy of any document mentioned in the request to admit shall be attached to it, unless the other party already has a copy or it is impractical to attach a copy.  O. Reg. 114/99, r. 22 (3).

RESPONSE REQUIRED WITHIN 20 DAYS

(4) The party on whom the request to admit is served is considered to have admitted, for purposes of the case only, that the fact is true or that the document is genuine, unless the party serves a response (Form 22A) within 20 days,

(a) denying that a particular fact mentioned in the request is true or that a particular document mentioned in the request is genuine; or

(b) refusing to admit that a particular fact mentioned in the request is true or that a particular document mentioned in the request is genuine, and giving the reasons for each refusal.  O. Reg. 114/99, r. 22 (4).

WITHDRAWING ADMISSION

(5) An admission that a fact is true or that a document is genuine (whether contained in a document served in the case or resulting from subrule (4)), may be withdrawn only with the other party’s consent or with the court’s permission.  O. Reg. 114/99, r. 22 (5).

Family Law Rules – Rule 24: Costs

November 21st, 2015 by

RULE 24:  COSTS

SUCCESSFUL PARTY PRESUMED ENTITLED TO COSTS

24. (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.  O. Reg. 114/99, r. 24 (1).

NO PRESUMPTION IN CHILD PROTECTION CASE OR IF PARTY IS GOVERNMENT AGENCY

(2) The presumption does not apply in a child protection case or to a party that is a government agency.  O. Reg. 114/99, r. 24 (2); O. Reg. 544/99, s. 10 (1).

COURT’S DISCRETION — COSTS FOR OR AGAINST GOVERNMENT AGENCY

(3) The court has discretion to award costs to or against a party that is a government agency, whether it is successful or unsuccessful.  O. Reg. 114/99, r. 24 (3); O. Reg. 544/99, s. 10 (2).

SUCCESSFUL PARTY WHO HAS BEHAVED UNREASONABLY

(4) Despite subrule (1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs.  O. Reg. 114/99, r. 24 (4).

DECISION ON REASONABLENESS

(5) In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,

(a) the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;

(b) the reasonableness of any offer the party made; and

(c) any offer the party withdrew or failed to accept.  O. Reg. 114/99, r. 24 (5).

DIVIDED SUCCESS

(6) If success in a step in a case is divided, the court may apportion costs as appropriate.  O. Reg. 114/99, r. 24 (6).

ABSENT OR UNPREPARED PARTY

(7) If a party does not appear at a step in the case, or appears but is not properly prepared to deal with the issues at that step, the court shall award costs against the party unless the court orders otherwise in the interests of justice.  O. Reg. 114/99, r. 24 (7).

BAD FAITH

(8) If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately.  O. Reg. 114/99, r. 24 (8).

COSTS CAUSED BY FAULT OF LAWYER OR AGENT

(9) If a party’s lawyer or agent has run up costs without reasonable cause or has wasted costs, the court may, on motion or on its own initiative, after giving the lawyer or agent an opportunity to be heard,

(a) order that the lawyer or agent shall not charge the client fees or disbursements for work specified in the order, and order the lawyer or agent to repay money that the client has already paid toward costs;

(b) order the lawyer or agent to repay the client any costs that the client has been ordered to pay another party;

(c) order the lawyer or agent personally to pay the costs of any party; and

(d) order that a copy of an order under this subrule be given to the client.  O. Reg. 114/99, r. 24 (9).

COSTS TO BE DECIDED AT EACH STEP

(10) Promptly after each step in the case, the judge or other person who dealt with that step shall decide in a summary manner who, if anyone, is entitled to costs, and set the amount of costs.  O. Reg. 114/99, r. 24 (10).

FACTORS IN COSTS

(11) A person setting the amount of costs shall consider,

(a) the importance, complexity or difficulty of the issues;

(b) the reasonableness or unreasonableness of each party’s behaviour in the case;

(c) the lawyer’s rates;

(d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;

(e) expenses properly paid or payable; and

(f) any other relevant matter.  O. Reg. 114/99, r. 24 (11).

PAYMENT OF EXPENSES

(12) The court may make an order that a party pay an amount of money to another party to cover part or all of the expenses of carrying on the case, including a lawyer’s fees.  O. Reg. 114/99, r. 24 (12).

ORDER FOR SECURITY FOR COSTS

(13) A judge may, on motion, make an order for security for costs that is just, based on one or more of the following factors:

1. A party ordinarily resides outside Ontario.

2. A party has an order against the other party for costs that remains unpaid, in the same case or another case.

3. A party is a corporation and there is good reason to believe it does not have enough assets in Ontario to pay costs.

4. There is good reason to believe that the case is a waste of time or a nuisance and that the party does not have enough assets in Ontario to pay costs.

5. A statute entitles the party to security for costs.  O. Reg. 114/99, r. 24 (13).

AMOUNT AND FORM OF SECURITY

(14) The judge shall determine the amount of the security, its form and the method of giving it.  O. Reg. 114/99, r. 24 (14).

EFFECT OF ORDER FOR SECURITY

(15) Until the security has been given, a party against whom there is an order for security for costs may not take any step in the case, except to appeal from the order, unless a judge orders otherwise.  O. Reg. 114/99, r. 24 (15).

FAILURE TO GIVE SECURITY

(16) If the party does not give the security as ordered and, as a result, a judge makes an order dismissing the party’s case or striking out the party’s answer or any other document filed by the party, then subrule (15) no longer applies. O. Reg. 322/13, s. 14.

SECURITY MAY BE CHANGED

(17) The amount of the security, its form and the method of giving it may be changed by order at any time.  O. Reg. 114/99, r. 24 (17).

Family Law Rules – Rule 25.1: Payment into and out of court

November 21st, 2015 by

RULE 25.1:  PAYMENT INTO AND OUT OF COURT

DEFINITION

25.1 (1) In this rule,

“Accountant” means the Accountant of the Superior Court of Justice. O. Reg. 389/12, s. 1.

NON-APPLICATION OF RULE

(2) This rule does not apply to,

(a) money paid or to be paid into court for the enforcement of an order for the payment or recovery of money, including enforcement by garnishment; or

(b) money for the support of a child or spouse that is paid or to be paid into court by the payor on behalf of a recipient. O. Reg. 389/12, s. 1.

PAYMENT INTO COURT, FILING IN PERSON WITH CLERK OR ACCOUNTANT

(3) Subject to subrule (9), a party who is required to pay money into court shall do so in accordance with subrules (4) to (8). O. Reg. 389/12, s. 1.

DOCUMENTS TO BE FILED

(4) The party shall file with the clerk or Accountant a written request for payment into court and a copy of the order under which the money is payable. O. Reg. 389/12, s. 1.

DIRECTION

(5) On receiving the documents filed under subrule (4), the clerk or Accountant shall give the party a direction to receive the money, addressed to a bank listed in Schedule I or II to the Bank Act (Canada) and specifying the account in the Accountant’s name into which the money is to be paid. O. Reg. 389/12, s. 1.

CLERK TO FORWARD DOCUMENTS

(6) If the documents are filed with the clerk, the clerk shall forward the documents to the Accountant. O. Reg. 389/12, s. 1.

PAYMENT

(7) On receiving from the clerk or Accountant the direction referred to in subrule (5), the party shall pay the money into the specified bank account in accordance with the direction. O. Reg. 389/12, s. 1.

BANK’S DUTIES

(8) On receiving the money, the bank shall give a receipt to the party paying the money and immediately send a copy of the receipt to the Accountant. O. Reg. 389/12, s. 1.

PAYMENT INTO COURT, PAYMENT BY MAIL TO ACCOUNTANT

(9) A party may pay money into court by mailing to the Accountant the documents referred to in subrule (4), together with the money that is payable. O. Reg. 389/12, s. 1.

ACCOUNTANT TO PROVIDE RECEIPT

(10) On receiving money under subrule (9), the Accountant shall give a receipt to the party paying the money. O. Reg. 389/12, s. 1.

PAYMENT OUT OF COURT, AUTHORITY

(11) Money may only be paid out of court under an order or on consent of all parties. O. Reg. 389/12, s. 1.

PAYMENT OUT UNDER AN ORDER

(12) A person who seeks payment of money out of court under an order shall file with the Accountant,

(a) a written request for payment out naming the person to whom the money is to be paid under the order;

(b) the original order for payment out or a copy certified by an official of the court, unless one or the other has already been filed with the Accountant; and

(c) an affidavit stating that the order for payment out is not under appeal and that the time for appealing the order has expired, or that any appeal of the order has been disposed of. O. Reg. 389/12, s. 1.

CHILDREN’S LAWYER, PUBLIC GUARDIAN AND TRUSTEE

(13) If the person seeking payment out under an order is the Children’s Lawyer or the Public Guardian and Trustee, the documents referred to in clauses (12) (a) and (c) are not required to be filed. O. Reg. 389/12, s. 1.

PAYMENT OUT ON CONSENT

(14) A person who seeks payment of money out of court on consent shall file with the Accountant,

(a) a written request for payment out naming the person to whom the money is to be paid, and an affidavit stating that neither the person making the request nor the person to whom the money is to be paid is a special party or a child under the age of 18 years who is not a party, with copies of the following attached as exhibits:

(i) photo identification of the requesting person,

(ii) proof of that person’s date of birth,

(iii) proof of that person’s current address; and

(b) the affidavit of each party or each of the other parties, as the case may be, stating that the party consents to the payment out as set out in the request and that neither the party nor the person to whom the money is to be paid is a special party or a child under the age of 18 years who is not a party, with copies of the documents referred to in subclauses (a) (i), (ii) and (iii), as they relate to the party providing the affidavit, attached as exhibits. O. Reg. 389/12, s. 1.

ACCOUNTANT’S DUTIES

(15) If the requirements of subrule (12) or (14), as the case may be, are met, the Accountant shall pay the money to the person named in the order or request for payment out, and the payment shall include any accrued interest, unless a court orders otherwise. O. Reg. 389/12, s. 1.

ORDER FOR PAYMENT OUT, SPECIAL PARTY OR NON-PARTY CHILD

(16) The court may, on motion, order payment out of court of money for or on behalf of a special party or a child who is not a party. O. Reg. 389/12, s. 1.

WHERE NOTICE IS NOT REQUIRED

(17) A motion under subrule (16) by the Children’s Lawyer or the Public Guardian and Trustee may be made without notice, unless the court orders otherwise. O. Reg. 389/12, s. 1.

COSTS

(18) In making an order under subrule (16), the court may order that costs payable to the person who made the motion be paid directly to that person’s representative out of the money in court. O. Reg. 389/12, s. 1.

APPLICATION

(19) This rule applies to the payment into and out of court of money paid into court on and after the day on which Ontario Regulation 389/12 comes into force. O. Reg. 389/12, s. 1.

Family Law Rules – Rule 26: Enforcement of Orders

November 21st, 2015 by

RULE 26:  ENFORCEMENT OF ORDERS

WHERE TO ENFORCE AN ORDER

26. (1) The place for enforcement of an order is governed by subrules 5 (5), (6), (7) and (7.1) (place for starting enforcement).  O. Reg. 114/99, r. 26 (1); O. Reg. 142/14, s. 11 (1).

HOW TO ENFORCE AN ORDER

(2) An order that has not been obeyed may, in addition to any other method of enforcement provided by law, be enforced as provided by subrules (3) and (4).  O. Reg. 114/99, r. 26 (2).

PAYMENT ORDERS

(3) A payment order may be enforced by,

(a) a request for a financial statement (subrule 27 (1));

(b) a request for disclosure from an income source (subrule 27 (7));

(c) a financial examination (subrule 27 (11));

(d) seizure and sale (rule 28);

(e) garnishment (rule 29);

(f) a default hearing (rule 30), if the order is a support order;

(g) the appointment of a receiver under section 101 of the Courts of Justice Act; and

(h) registration under section 42 of the Family Responsibility and Support Arrears Enforcement Act, 1996.  O. Reg. 114/99, r. 26 (3).

OTHER ORDERS

(4) An order other than a payment order may be enforced by,

(a) a writ of temporary seizure of property (subrule 28 (10));

(b) a contempt order (rule 31); and

(c) the appointment of a receiver under section 101 of the Courts of Justice Act.  O. Reg. 114/99, r. 26 (4).

STATEMENT OF MONEY OWED

(5) A statement of money owed shall be in Form 26, with a copy of the order that is in default attached.  O. Reg. 114/99, r. 26 (5).

SPECIAL FORMS FOR STATEMENT OF MONEY OWED

(6) Despite subrule (5),

(a) if the Family Responsibility and Support Arrears Enforcement Act, 1996 applies, a statement of arrears in the form used by the Director may be used instead of Form 26;

(b) if the Interjurisdictional Support Orders Act, 2002 applies, a document receivable under section 49 of that Act may be used instead of Form 26.  O. Reg. 114/99, r. 26 (6); O. Reg. 544/99, s. 11 (1); O. Reg. 56/03, s. 4.

RECIPIENT’S OR DIRECTOR’S ENTITLEMENT TO COSTS

(7) Unless the court orders otherwise, the recipient or the Director is entitled to the costs,

(a) of carrying out a financial examination; and

(b) of issuing, serving, filing and enforcing a writ of seizure and sale, a writ of temporary seizure and a notice of garnishment and of changing them by statutory declaration.  O. Reg. 114/99, r. 26 (7).

ENFORCEMENT OF ADMINISTRATIVE COSTS

(8) For the purpose of subrule (7), the recipient or the Director may collect under a writ of seizure and sale, a notice of garnishment or a statutory declaration changing either of them,

(a) the amounts set out in the regulations under the Administration of Justice Act and awarded under rule 24 (costs) for filing and renewing with the sheriff a writ of seizure and sale or a writ of temporary seizure;

(b) payments made to a sheriff, clerk, official examiner, authorized court transcriptionist or other public officer in accordance with the regulations under the Administration of Justice Act and awarded under rule 24 (costs), on filing with the sheriff or clerk a copy of a receipt for each payment or an affidavit setting out the payments made; and

(c) the actual expense for carrying out a financial examination, or any other costs to which the recipient or the Director is entitled under subrule (7), on filing with the sheriff or clerk an affidavit (Form 26A) setting out the items of expense in detail.  O. Reg. 114/99, r. 26 (8); O. Reg. 142/14, s. 11 (2).

AFFIDAVIT FOR FILING DOMESTIC CONTRACT OR PATERNITY AGREEMENT

(9) An affidavit for filing a domestic contract or paternity agreement under subsection 35 (1) of the Family Law Act shall be in Form 26B.  O. Reg. 114/99, r. 26 (9).

DIRECTOR’S STATUS

(10) If the Director enforces an order under the Family Responsibility and Support Arrears Enforcement Act, 1996, anything in these rules relating to enforcement by the person in whose favour the order was made applies to the Director.  O. Reg. 114/99, r. 26 (10).

FILING AND REFILING WITH THE DIRECTOR

(11) A person who files or refiles a support order in the Director’s office shall immediately send notice of the filing, by mail, fax or email, to the clerk at any court office where the recipient is enforcing the order.  O. Reg. 114/99, r. 26 (11); O. Reg. 544/99, s. 11 (2); O. Reg. 140/15, s. 4.

TRANSFERRING ENFORCEMENT FROM RECIPIENT TO DIRECTOR

(12) A recipient who files a support order in the Director’s office shall, on the Director’s request, assign to the Director any enforcement that the recipient has started, and then the Director may continue with the enforcement as if the Director had started it.  O. Reg. 114/99, r. 26 (12).

TRANSFERRING ENFORCEMENT FROM DIRECTOR TO RECIPIENT

(13) If the parties withdraw a support order from the Director’s office, the Director shall, on the recipient’s request, given to the Director at the same time as the notice of withdrawal, assign to the recipient any enforcement that the Director has started, and then the recipient may continue with the enforcement as if the recipient had started it.  O. Reg. 114/99, r. 26 (13).

NOTICE OF TRANSFER OF ENFORCEMENT

(14) A person who continues an enforcement under subrule (12) or (13) shall immediately send a notice of transfer of enforcement (Form 26C), by mail, fax or email to,

(a) all parties to the enforcement;

(b) the clerk at every court office where the enforcement is being carried on; and

(c) every sheriff who is involved with the enforcement at the time of transfer.  O. Reg. 114/99, r. 26 (14); O. Reg. 544/99, s. 11 (3); O. Reg. 140/15, s. 4.

PLACE OF REGISTRATION OF SUPPORT ORDER UNDER THE DIVORCE ACT (CANADA)

(15) If a person wants to enforce an order for support made outside Ontario under the Divorce Act (Canada), the order shall be registered in a court, as defined in subsection 20 (1) of that Act, as follows:

1. If the recipient resides in Ontario, in the municipality where the recipient resides.

2. If the recipient does not reside in Ontario, in the municipality where the payor resides.

3. If neither the recipient nor the payor resides in Ontario, in the municipality where any property owned by the payor is located or, if the payor doesn’t have any property, in any municipality.  O. Reg. 89/04, s. 9.

PLACE OF REGISTRATION OF CUSTODY OR ACCESS ORDER UNDER THE DIVORCE ACT (CANADA)

(16) If a person wants to enforce an order involving custody of or access to a child that is made outside Ontario under the Divorce Act (Canada), the order shall be registered in a court, as defined in subsection 20 (1) of that Act, in accordance with clause 5 (6) (a) of these rules.  O. Reg. 89/04, s. 9.

REGISTRATION REQUIREMENTS

(17) The person requesting the registration shall send to the court a certified copy of the order and a written request that the order be registered under paragraph 20 (3) (a) of the Divorce Act (Canada).  O. Reg. 89/04, s. 9.