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Family Law Rules – Rule 39: Case Management in Family Court of Superior Court of Justice

Angela Princewill

November 21, 2015

RULE 39:  CASE MANAGEMENT IN FAMILY COURT OF SUPERIOR COURT OF JUSTICE

CASE MANAGEMENT IN CERTAIN AREAS ONLY

39. (1) This rule applies only to cases in the Family Court of the Superior Court of Justice, which has jurisdiction in the municipalities listed in subrule 1 (3).  O. Reg. 114/99, r. 39 (1).

EXCLUDED CASES

<>(2) This rule does not apply to,

(a) enforcements;

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

(c) cases under the Child and Family Services Act. O. Reg. 439/07, s. 3 (1); O. Reg. 388/12, s. 11 (1).

PARTIES MAY NOT LENGTHEN TIMES

(3) A time set out in this rule may be lengthened only by order of the case management judge and not by the parties’ consent under subrule 3 (6).  O. Reg. 114/99, r. 39 (3).

FAST TRACK

(4) Applications to which this rule applies, except the ones mentioned in subrule (7), and motions to change a final order or agreement are fast track cases (subrules (5) and (6)).  O. Reg. 114/99, r. 39 (4).

FAST TRACK — FIRST COURT DATE

(5) In a fast track case the clerk shall, on or before the first court date,

(a) confirm that all necessary documents have been served and filed;

(b) refer the parties to sources of information about the court process, alternatives to court (including mediation), the effects of separation and divorce on children and community resources that may help the parties and their children;

(c) if an answer has been filed in response to an application, or if a response to motion to change (Form 15B) or a notice of financial interest has been filed in a motion to change a final order or agreement under rule 15, confirm that the case is ready for a hearing, case conference or settlement conference and schedule it accordingly;

(d) if no answer has been filed in response to an application, send the case to a judge for a decision on the basis of affidavit evidence or, on request of the applicant, schedule a case conference; and

(e) if no response to motion to change (Form 15B), consent motion to change (Form 15C) or notice of financial interest is filed in response to a motion to change a final order or agreement under rule 15, send the case to a judge for a decision on the basis of the evidence filed in the motion.  O. Reg. 114/99, r. 39 (5); O. Reg. 202/01, s. 7; O. Reg. 89/04, s. 14 (1); O. Reg. 151/08, s. 7.

FAST TRACK — CASE MANAGEMENT JUDGE ASSIGNED AT START

(6) In a fast track case, a case management judge shall be assigned by the first time the case comes before a judge.  O. Reg. 114/99, r. 39 (6).

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. O. Reg. 388/12, s. 11 (2).

FEATURES OF STANDARD TRACK

(8) In a standard track case,

(a) the clerk shall not set a court date when the application is filed;

(b) a case management judge shall be assigned when a case conference or a motion is scheduled, whichever comes first; and

(c) the clerk shall schedule a case conference on any party’s request.  O. Reg. 114/99, r. 39 (8); O. Reg. 89/04, s. 14 (2).

FUNCTIONS OF CASE MANAGEMENT JUDGE

(9) The case management judge assigned to a case,

(a) shall generally supervise its progress;

(b) shall conduct the case conference and the settlement conference;

(c) may schedule a case conference or settlement conference at any time, on the judge’s own initiative; and

(d) shall hear motions in the case, when available to hear motions.

(e) Revoked:  O. Reg. 76/06, s. 11 (2).

O. Reg. 114/99, r. 39 (9); O. Reg. 76/06, s. 11 (2).

SUBSTITUTE CASE MANAGEMENT JUDGE

(10) If the case management judge is, for any reason, unavailable to continue as the case management judge, another case management judge may be assigned for part or all of the case.  O. Reg. 114/99, r. 39 (10).

NOTICE OF APPROACHING DISMISSAL AFTER 365 DAYS

(11) The clerk shall serve a notice of approaching dismissal (Form 39) for a case on the parties by mail, fax or email if the case has not been settled, withdrawn or scheduled or adjourned for trial before the 365th day after the date the case was started, and that time has not been lengthened by an order under subrule (3).  O. Reg. 439/07, s. 3 (2); O. Reg. 140/15, s. 4.

EXCEPTION

(11.1) Despite subrule (11), if a case conference or settlement conference is arranged before the 365th day after the date the case was started for a date on or later than the 365th day, the clerk shall not serve a notice of approaching dismissal except as set out in subrule (11.2).  O. Reg. 439/07, s. 3 (2).

NOTICE SENT IF CONFERENCE DOES NOT TAKE PLACE

(11.2) If a case conference or settlement conference is arranged for a date on or later than the 365th day after the date the case was started, but the hearing does not take place on that date and is not adjourned by a judge, the clerk shall serve the notice of approaching dismissal on the parties by mail, fax or email.  O. Reg. 439/07, s. 3 (2); O. Reg. 140/15, s. 4.

DISMISSAL OF CASE

(12) A case for which a notice of approaching dismissal has been served shall be dismissed without further notice, unless one of the parties, within 60 days after the notice is served,

(a) obtains an order under subrule (3) to lengthen that time;

(b) files an agreement signed by all parties and their lawyers, if any, for a final order disposing of all issues in the case, and a notice of motion for an order carrying out the agreement;

(c) serves on all parties and files a notice of withdrawal (Form 12) that discontinues all outstanding claims in the case;

(d) schedules or adjourns the case for trial; or

(e) arranges a case conference or settlement conference for the first available date.  O. Reg. 439/07, s. 3 (2).

SAME

(12.1) If a case conference or settlement conference is arranged for a date as described in clause (12) (e), but the hearing does not take place on that date and is not adjourned by a judge, the case shall be dismissed without further notice.  O. Reg. 439/07, s. 3 (2).

DISMISSAL AFTER NOTICE

(12.2) The clerk shall dismiss a case under subrule (12) or (12.1) by preparing and signing an order dismissing the case, with no costs payable by any party.  O. Reg. 439/07, s. 3 (2).

SERVICE OF DISMISSAL ORDER BY CLERK

(13) The clerk shall serve the order on each party by mail, fax or email.  O. Reg. 114/99, r. 39 (13); O. Reg. 140/15, s. 4.

SERVICE OF DISMISSAL ORDER BY LAWYER ON CLIENT

(14) A lawyer who is served with a dismissal order on behalf of a client shall serve it on the client by mail, fax or email and file proof of service of the order.  O. Reg. 114/99, r. 39 (14); O. Reg. 140/15, s. 4.

JUDGE MAY SET CLERK’S ORDER ASIDE

(14.1) The case management judge or another judge may, on motion, set aside an order of the clerk under subrule (12).  O. Reg. 76/06, s. 11 (3).

(15) Revoked: O. Reg. 322/13, s. 20.

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