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Family Law Rules – Rule 5: Where a case starts and is to be heard

Angela Princewill

October 23, 2015

WHERE CASE STARTS

5. (1) Subject to sections 21.8 and 21.11 of the Courts of Justice Act (territorial jurisdiction — Family Court), a case shall be started,

(a) in the municipality where a party resides;

(b) if the case deals with custody of or access to a child, in the municipality where the child ordinarily resides, except for cases described in,

(i) section 22 (jurisdiction of an Ontario court) of the Children’s Law Reform Act, and

(ii) subsection 48 (2) (place for child protection hearing) and subsection 150 (1) (place for adoption proceeding) of the Child and Family Services Act; or

(c) in a municipality chosen by all parties, but only with the court’s permission given in advance in that municipality.  O. Reg. 114/99, r. 5 (1).

STARTING CASE — DANGER TO CHILD OR PARTY

(2) Subject to sections 21.8 and 21.11 of the Courts of Justice Act, if there is immediate danger that a child may be removed from Ontario or immediate danger to a child’s or party’s health or safety, a party may start a case in any municipality and a motion may be heard in that municipality, but the case shall be transferred to a municipality referred to in subrule (1) immediately after the motion is heard, unless the court orders otherwise.  O. Reg. 114/99, r. 5 (2).

CLERK TO REFUSE DOCUMENTS IF CASE IN WRONG PLACE

(3) The clerk shall refuse to accept an application for filing unless,

(a) the case is started in the municipality where a party resides;

(b) the case deals with custody of or access to a child and is started in the municipality where the child ordinarily resides;

(c) the case is started in a municipality chosen by all parties and the order permitting the case to be started there is filed with the application; or

(d) the lawyer or party asking to file the application says in writing that the case is one that is permitted by clause (1) (b) or subrule (2) to be started in that municipality.  O. Reg. 114/99, r. 5 (3).

PLACE FOR STEPS OTHER THAN ENFORCEMENT

(4) All steps in the case, other than enforcement, shall take place in the municipality where the case is started or transferred.  O. Reg. 114/99, r. 5 (4).

PLACE FOR ENFORCEMENT — PAYMENT ORDERS

(5) All steps in enforcement of a payment order, including a motion to suspend a support deduction order, shall take place,

(a) in the municipality where the recipient resides;

(b) if the recipient does not reside in Ontario, in the municipality where the order is filed with the court for enforcement;

(c) if the person enforcing the order so chooses, in the municipality where the payor resides; or

(d) in a motion under section 26 (income source dispute) of the Family Responsibility and Support Arrears Enforcement Act, 1996, in the municipality where the income source resides.  O. Reg. 114/99, r. 5 (5); O. Reg. 322/13, s. 3.

PLACE FOR ENFORCEMENT — OTHER ORDERS

(6) All steps in the enforcement of an order other than a payment order shall take place,

(a) if the order involves custody of or access to a child,

(i) in the municipality where the child ordinarily resides, or

(ii) if the child does not ordinarily reside in Ontario, in the municipality to which the child has the closest connection;

(b) if the order involves property, in the municipality where the person enforcing the order resides or the municipality where the property is located; or

(c) in a municipality chosen by all parties, but only with the court’s permission given in advance in that municipality.  O. Reg. 114/99, r. 5 (6).

FILING WRIT WITH SHERIFF

(6.1) Despite subrules (5) and (6), a writ of seizure and sale (Form 28) may be filed with a sheriff in a different municipality. O. Reg. 142/14, s. 3.

ALTERNATIVE PLACE FOR ENFORCEMENT — ORDER ENFORCED BY CONTEMPT MOTION

(7) An order, other than a payment order, that is being enforced by a contempt motion may also be enforced in the municipality in which the order was made.  O. Reg. 114/99, r. 5 (7).

PLACE FOR ENFORCEMENT — ELECTRONIC WRIT

(7.1) A writ of seizure and sale that is issued electronically under rule 28 (seizure and sale),

(a) shall specify the municipality in which the enforcement is taking place under subrule (5), (6) or (7), as the case may be; and

(b) is deemed to have been issued in that municipality. O. Reg. 142/14, s. 3.

TRANSFER TO ANOTHER MUNICIPALITY

(8) If it is substantially more convenient to deal with a case or any step in the case in another municipality, the court may, on motion, order that the case or step be transferred there.  O. Reg. 114/99, r. 5 (8).

CHANGE OF PLACE FOR CHILD PROTECTION CASE

(9) Notice of a motion under subsection 48 (3) of the Child and Family Services Act to transfer a case to a place within the jurisdiction of another children’s aid society shall be served on the parties and the other children’s aid society, with the evidence in support of the motion.  O. Reg. 114/99, r. 5 (9).

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