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Family Law Rules – Rule 37.1: Provisional Orders and Confirmation of Provisional Orders — Divorce Act, Family Law Act

Angela Princewill

November 21, 2015

RULE 37.1:  PROVISIONAL ORDERS AND CONFIRMATION OF PROVISIONAL ORDERS — DIVORCE ACT, FAMILY LAW ACT

APPLICATION

37.1 (1) This rule applies to orders made under sections 18 and 19 of the Divorce Act (Canada) and under section 44 of the Family Law Act.  O. Reg. 56/03, s. 6.

DEFINITIONS

(2) In this rule,

“confirming court” means,

(a) in the case of an order under section 19 of the Divorce Act (Canada), the court in Ontario or another province or territory of Canada that has jurisdiction to confirm a provisional variation of the order, or

(b) for the purpose of section 44 of the Family Law Act,

(i) the Ontario Court of Justice sitting in the municipality where the respondent resides, or

(ii) the Family Court of the Superior Court of Justice, if the respondent resides in an area where that court has jurisdiction; (“tribunal d’homologation”)

“originating court” means,

(a) in the case of an order under section 18 of the Divorce Act (Canada), the court in Ontario or another province or territory of Canada that has jurisdiction under section 5 of that Act to deal with an application for a provisional variation of the order, or

(b) for the purpose of section 44 of the Family Law Act,

(i) the Ontario Court of Justice sitting in the municipality where the provisional order is made, or

(ii) the Family Court of the Superior Court of Justice when it makes the provisional order; (“tribunal d’origine”)

“send”, when used in reference to a person, means to,

(a) mail to the person’s lawyer or, if none, to the person,

(b) send by courier to the person’s lawyer or, if none, to the person,

(c) deposit at a document exchange to which the person’s lawyer belongs, or

(d) fax to the person’s lawyer or, if none, to the person. (“envoyer”)  O. Reg. 56/03, s. 6.

DOCUMENTS TO BE SENT TO CONFIRMING COURT

(3) When the court makes a provisional order under section 18 of the Divorce Act (Canada) or section 44 of the Family Law Act, the clerk shall send the following to the confirming court (if it is in Ontario) or to the Attorney General to be sent to the confirming court (if it is outside Ontario):

1. One copy of,

i. the application (Form 8),

ii. the applicant’s financial statement (Form 13),

iii. a statement giving any information about the respondent’s identification, whereabouts, income, assets and liabilities, and

iv. if the confirming court is in another municipality in Ontario, proof that the application was served on the respondent.

2. Three certified copies of,

i. the applicant’s evidence and, if reasonably possible, the exhibits, and

ii. the provisional order.  O. Reg. 56/03, s. 6.

NO FINANCIAL STATEMENT FROM FOREIGN APPLICANT

(4) When a confirming court in Ontario receives a provisional order made outside Ontario, the applicant does not have to file a financial statement.  O. Reg. 56/03, s. 6.

NOTICE OF CONFIRMATION HEARING

(5) A clerk of a confirming court in Ontario who receives a provisional order shall,

(a) serve on the respondent, by special service (subrule 6 (3)),

(i) a notice of hearing (Form 37),

(ii) a copy of the documents sent by the originating court, and

(iii) blank response forms; and

(b) send a notice of hearing and an information sheet (Form 37A) to,

(i) the applicant,

(ii) the clerk of the originating court, and

(iii) the Attorney General, if the provisional order was made outside Ontario.  O. Reg. 56/03, s. 6.

RESPONDENT’S FINANCIAL STATEMENT

(6) A respondent at a confirmation hearing under section 19 of the Divorce Act (Canada) shall serve and file a financial statement (Form 13) within 30 days after service of the notice of confirmation hearing.  O. Reg. 56/03, s. 6.

WRITTEN HEARING

(7) Unless the court orders otherwise under subrule (9), the application shall be dealt with on the basis of written documents without the parties or their lawyers needing to come to court.  O. Reg. 56/03, s. 6.

REQUEST FOR ORAL HEARING

(8) The respondent may request an oral hearing by filing a motion form (Form 14B) within 30 days after being served with the notice of hearing.  O. Reg. 56/03, s. 6; O. Reg. 69/15, s. 13.

ORDER FOR ORAL HEARING

(9) The court may order an oral hearing, on the applicant’s motion or on its own initiative, if it is satisfied that an oral hearing is necessary to deal with the case justly.  O. Reg. 56/03, s. 6.

COURT RECEIVES REQUEST FOR FURTHER EVIDENCE

(10) When an originating court in Ontario receives a request for further evidence from the confirming court, the clerk shall send to the applicant a notice for taking further evidence (Form 37E) and a copy of the documents sent by the confirming court.  O. Reg. 56/03, s. 6.

COURT SENDS REQUEST FOR FURTHER EVIDENCE

(11) When a confirming court in Ontario requests further evidence from the originating court,

(a) the confirming court shall adjourn the confirmation hearing to a new date; and

(b) the clerk shall send to the originating court two certified copies of the evidence taken in the confirming court.  O. Reg. 56/03, s. 6.

CONTINUING THE CONFIRMATION HEARING

(12) When a confirming court in Ontario receives further evidence from the originating court, the clerk shall promptly prepare a notice of continuation of hearing (Form 37C) and send it, with copies of the evidence, to the respondent and, if the provisional order was made outside Ontario, to the Attorney General.  O. Reg. 56/03, s. 6.

RESPONDENT’S AFFIDAVIT

(13) If the respondent wishes to respond to the further evidence, he or she shall file an affidavit containing the response with the court, within 30 days after receiving the notice of continuation of hearing.  O. Reg. 56/03, s. 6.

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