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Family Law Rules – Rule 40: Case Management in Ontario Court

Angela Princewill

November 21, 2015

RULE 40:  CASE MANAGEMENT IN ONTARIO COURT OF JUSTICE

CASE MANAGEMENT IN CERTAIN AREAS ONLY

40. (1) This rule applies only to cases in the Ontario Court of Justice.  O. Reg. 114/99, r. 40 (1).

EXCLUDED CASES

(2) This rule does not apply to,

(a) enforcements;

(b) cases under rule 37 or 37.1; or

(c) cases under the Child and Family Services Act.  O. Reg. 439/07, s. 4 (1).

PARTIES MAY NOT LENGTHEN TIMES

(3) A time set out in this rule may be lengthened only by order and not by the parties’ consent under subrule 3 (6).  O. Reg. 114/99, r. 40 (3).

FIRST COURT DATE

(4) 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. 40 (4); O. Reg. 202/01, s. 8; O. Reg. 89/04, s. 15; O. Reg. 151/08, s. 8.

NOTICE OF APPROACHING DISMISSAL AFTER 365 DAYS

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of approaching dismissal (Form 39) for a case on the parties by mail, fax or email if the case has not been settled, withdrawn or scheduled or adjourned for trial before the 365th day after the date the case was started, and that time has not been lengthened by an order under subrule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

EXCEPTION

(5.1) Despite subrule (5), 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 (5.2).  O. Reg. 439/07, s. 4 (2).

NOTICE SENT IF CONFERENCE DOES NOT TAKE PLACE

(5.2) 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. 4 (2); O. Reg. 140/15, s. 4.

DISMISSAL OF CASE

(6) 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. 4 (2).

SAME

(6.1) If a case conference or settlement conference is arranged for a date as described in clause (6) (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. 4 (2).

DISMISSAL AFTER NOTICE

(6.2) The clerk shall dismiss a case under subrule (6) or (6.1) by preparing and signing an order dismissing the case, with no costs payable by any party.  O. Reg. 439/07, s. 4 (2).

SERVICE OF DISMISSAL ORDER BY CLERK

(7) The clerk shall serve the order on each party by mail, fax or email.  O. Reg. 114/99, r. 40 (7); O. Reg. 140/15, s. 4.

SERVICE OF DISMISSAL ORDER BY LAWYER ON CLIENT

(8) 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. 40 (8); O. Reg. 140/15, s. 4.

JUDGE MAY SET CLERK’S ORDER ASIDE

(9) A judge may, on motion, set aside an order of the clerk under subrule (6).  O. Reg. 114/99, r. 40 (9).

(10) Revoked: O. Reg. 322/13, s. 21.

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