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O. Reg. 151/08: FAMILY LAW RULES

filed May 16, 2008 under Courts of Justice Act, R.S.O. 1990, c. C.43

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ontario regulation 151/08

made under the

Courts of Justice Act

Made: April 28, 2008
Approved: May 16, 2008
Filed: May 16, 2008
Published on e-Laws: May 21, 2008
Printed in The Ontario Gazette: May 31, 2008

Amending O. Reg. 114/99

(Family Law Rules)

1. Subrule 8 (2) of Ontario Regulation 114/99 is revoked and the following substituted:

Change to FINAL order or agreement

(2) Subject to subrule 25 (19) (changing order — fraud, mistake, lack of notice), a party who wants to ask the court to change a final order or an agreement for support filed under section 35 of the Family Law Act may do so only by a motion under rule 15 (if permitted to do so by that rule).

Exception

(2.1) Despite subrule (2), if a party who wants to ask the court to change a final order or agreement to which rule 15 applies also wants to make one or more related claims to which rule 15 does not apply, the party may file an application under subrule (1) to deal with the request for a change together with the related claim or claims and, in that case, subrules 15 (11) to (13) apply with necessary modifications to the request.

2. (1) Subrule 13 (1) of the Regulation is amended by striking out “notice of motion” in the portion before clause (a) and substituting “motion”.

(2) Clause 13 (1) (b) of the Regulation is amended by striking out “affidavit in response to the motion” wherever it appears and substituting in each case “affidavit or other document responding to the motion”.

(3) Subrules 13 (1.1), (1.2) and (1.3) of the Regulation are amended by striking out “notice of motion” wherever it appears and substituting in each case “motion”.

(4) The French version of subrule 13 (1.3) of the Regulation is amended by striking out “la réponse” and substituting “la défense”.

(5) Subrule 13 (3) of the Regulation is amended by striking out “notice of motion” and substituting “motion”.

(6) Subrule 13 (4) of the Regulation is revoked and the following substituted:

Financial statement with motion to change temporary support order

(4) Subject to subrule (1.3), the following requirements apply if a motion contains a request for a change in a temporary support order:

1. The party making the motion shall serve and file a financial statement (Form 13 or 13.1) with the notice of motion.

2. The party responding to the motion shall serve and file a financial statement as soon as possible after being served with the notice of motion, but in any event no later than two days before the motion date. Any affidavit in response to the motion shall be served and filed at the same time as the financial statement.

Exception — BY CONSENT

(4.1) Parties to a consent motion to change a temporary support order do not need to serve and file financial statements if they file a consent agreeing not to serve and file them.

financial statement with motion to change final support order or Support agreement

(4.2) Subject to subrule (1.3), the following rules apply if a motion is made under rule 15 requesting a change to a final support order or a support agreement:

1. The party making the motion shall serve and file a financial statement (Form 13 or 13.1) with the motion to change (Form 15).

2. The party responding to the motion shall serve and file a financial statement within the time for serving and filing the response to motion to change (Form 15B) or returning the consent motion to change (Form 15C) to the party making the motion, as set out in subrule 15 (10). Any response to motion to change (Form 15B) shall be served and filed at the same time as the financial statement.

3. Parties who bring the motion by filing a consent motion to change (Form 15C) shall each file a financial statement with the form, unless they indicate in the form that they agree not to do so.

4. Parties who bring the motion by filing a consent motion to change child support (Form 15D) do not need to serve or file financial statements.

Financial Statement Required by response

(4.3) Subrule (4) or (4.2), as the case may be, applies with necessary modifications if a party makes a motion to change an order or agreement for which the party is not required by this rule to file a financial statement, and the party responding to the motion requests a change to a support order or support agreement.

(7) Subrule 13 (5) of the Regulation is amended by striking out “subrule (4)” at the end and substituting “subrule (4) or (4.2)”.

(8) Subrule 13 (9) of the Regulation is revoked.

(9) Subrule 13 (10) of the Regulation is revoked and the following substituted:

Documents not to be filed without financial statement

(10) The clerk shall not accept a document for filing without a financial statement if these rules require the document to be filed with a financial statement.

3. Clause 14 (6) (a) of the Regulation is amended by striking out “subrule 15 (14)” and substituting “subrule 25 (19)”.

4. Rule 15 of the Regulation is revoked and the following substituted:

Rule 15:  Motions to Change a Final Order or Agreement

Definition

15. (1) In this rule,

“assignee” means an agency or person to whom a support order or agreement that is the subject of a motion under this rule is assigned under the Family Law Act or the Divorce Act (Canada).

Application

(2) Subject to subrule (3), this rule only applies to a motion to change,

(a) a final order; or

(b) an agreement for support filed under section 35 of the Family Law Act.

Exception

(3) This rule does not apply to a motion or application to change an order made under the Child and Family Services Act, other than a final order made under section 57.1 of that Act .

Place of Motion

(4) Rule 5 (where a case starts) applies to a motion to change a final order or agreement as if the motion were a new case.

Motion to Change

(5) Subject to subrules (17) and (18), a party who wants to ask the court to change a final order or agreement shall serve and file,

(a) a motion to change (Form 15); and

(b) a change information form (Form 15A), with all required attachments.

SERVICE TO INCLUDE BLANK FORMS

(6) The party making the motion shall serve on the other party a blank response to motion to change (Form 15B) and a blank consent motion to change (Form 15C) together with the documents referred to in subrule (5).

Special Service

(7) The documents referred to in subrules (5) and (6) shall be served by special service (subrule 6 (3)), and not by regular service.

Exception

(8) Despite subrule (7), service on the persons mentioned in subrule 8 (6) (officials, agencies, etc.) may be made by regular service.

Response or Consent to Motion

(9) The following rules apply to a party who is served with a motion to change a final order or agreement:

1. If the party does not agree to the change or if the party wants to ask the court to make an additional or a different change to the final order or agreement, the party shall serve and file a response to motion to change (Form 15B), with all required attachments, within the time set out in clause (10) (a) or (b), as the case may be.

2. If the party agrees to the change or if the parties agree to a different change, the party shall complete the applicable portions of the consent motion to change (Form 15C) and shall, within the time set out in clause (10) (a) or (b), as the case may be,

i. return a signed copy of the consent motion to change to the party making the motion, and

ii. provide a copy of the signed consent motion to change to the assignee, if any.

Same

(10) The documents referred to in paragraphs 1 and 2 of subrule (9) shall be served and filed or returned and provided,

(a) no later than 30 days after the party responding to the motion receives the motion to change and the supporting documents, if that party resides in Canada or the United States of America; or

(b) no later than 60 days after the party responding to the motion receives the motion to change and the supporting documents, in any other case.

Service on Assignee Required

(11) In a motion to change a final order or agreement that has been assigned to an assignee, a party shall, in serving documents under subrule (5) or paragraph 1 of subrule (9), serve the documents on the assignee as if the assignee were also a party.

Assignee may become party

(12) On serving and filing a notice claiming a financial interest in the motion, an assignee becomes a respondent to the extent of the financial interest.

Sanctions if assignee not served

(13) If an assignee is not served as required by subrule (11), the following rules apply:

1. The court may at any time, on motion by the assignee with notice to the other parties, set aside the changed order to the extent that it affects the assignee’s financial interest.

2. The party who asked for the change has the burden of proving that the changed order should not be set aside.

3. If the changed order is set aside, the assignee is entitled to full recovery of its costs of the motion to set aside, unless the court orders otherwise.

No Response or Consent, or Response struck out

(14) If a party does not serve and file a response to motion to change (Form 15B) or return a consent motion to change (Form 15C) to the party making the motion as required under subrule (9), or if the party’s response is struck out by an order,

(a) the party is not entitled to any further notice of steps in the case, except as subrule 25 (13) (service of order) provides;

(b) the party is not entitled to participate in the case in any way; and

(c) the court may deal with the case in the party’s absence.

Same, request for order

(15) If subrule (14) applies, the party making the motion to change may file a motion form (Form 14B) asking that the court make the order requested in the materials filed by the party, unless an assignee has filed a notice of financial interest in the motion and opposes the change.

Consent to Motion

(16) If a party returns to the party making the motion a consent motion to change (Form 15C) in accordance with subparagraph 2 i of subrule (9), the party making the motion shall complete and file the consent motion to change and, unless any assignee refuses to consent to the change being requested, the party making the motion shall file with the consent motion to change,

(a) a motion form (Form 14B) asking that the court make the order described in the consent motion to change;

(b) five copies of a draft order;

(c) a stamped envelope addressed to each party and to the assignee, if any; and

(d) if the order that is agreed on relates in whole or in part to a support obligation,

(i) a support deduction order information form prescribed under the Family Responsibility and Support Arrears Enforcement Act, 1996, and

(ii) a draft support deduction order.

Motion to Change on Consent

(17) Subject to subrule (18), if the parties to a final order or agreement want to ask the court to change the final order or agreement and the parties and any assignee agree to the change, the parties shall file,

(a) a change information form (Form 15A), with all required attachments;

(b) a consent motion to change (Form 15C);

(c) a motion form (Form 14B) asking that the court make the order described in the consent motion to change;

(d) five copies of a draft order;

(e) a stamped envelope addressed to each party and to the assignee, if any; and

(f) if the order that is agreed on relates in whole or in part to a support obligation,

(i) a support deduction order information form prescribed under the Family Responsibility and Support Arrears Enforcement Act, 1996, and

(ii) a draft support deduction order.

Motion to Change on Consent — Child Support Only

(18) If the parties to a final order or agreement want to ask the court to change the final order or agreement in relation only to a child support obligation, and the parties and any assignee agree to the change, the parties shall file,

(a) a consent motion to change child support (Form 15D), with all required attachments;

(b) five copies of a draft order;

(c) a stamped envelope addressed to each party and to the assignee, if any;

(d) a support deduction order information form prescribed under the Family Responsibility and Support Arrears Enforcement Act, 1996; and

(e) a draft support deduction order.

Consent After Response Filed

(19) If, at any time after a party has served and filed a response under paragraph 1 of subrule (9) and before the motion to change is heard, the parties and any assignee agree to an order that changes the final order or agreement that is the subject of the motion, the parties may proceed on consent by filing,

(a) a consent motion to change (Form 15C);

(b) a motion form (Form 14B) asking that the court make the order described in the consent motion to change;

(c) five copies of a draft order;

(d) a stamped envelope addressed to each party and to the assignee, if any; and

(e) if the order that is agreed on relates in whole or in part to a support obligation,

(i) a support deduction order information form prescribed under the Family Responsibility and Support Arrears Enforcement Act, 1996, and

(ii) a draft support deduction order.

Order, Agreement to be attached

(20) A copy of any existing order or agreement that deals with custody, access or support shall be attached to every change information form (Form 15A) or consent motion to change child support (Form 15D).

Change not In accordance with child support guidelines

(21) Unless a motion to change a child support order or agreement is proceeding on the consent of the parties and any assignee, if a party asks that an order be made under this rule that is not in accordance with the tables in the applicable child support guidelines, the support recipient and the support payor shall each serve and file the evidence required by the following sections of the applicable child support guidelines, or the evidence that is otherwise necessary to satisfy the court that it should make the order asked for:

1. Section 4 (income over $150,000).

2. Section 5 (step-parent).

3. Section 7 (special expenses).

4. Section 8 (split custody).

5. Section 9 (shared custody).

6. Section 10 (undue hardship).

7. Section 21 (income and financial information).

Affidavit may be filed

(22) A party or parties who want to ask the court to change a final order or agreement may, instead of using a change information form (Form 15A), use an affidavit containing evidence necessary to satisfy the court that it should make the order asked for and, in that case, these rules apply to the affidavit as if it were a change information form. 

Same

(23) A party who responds to a motion to change a final order or agreement by serving and filing a response to motion to change (Form 15B) may use an affidavit to provide evidence supporting his or her position instead of relying on the relevant portions of the form to provide the evidence or in addition to those portions of the form and, in that case, the affidavit is deemed to be part of the form.

Requirements for affidavit

(24) Subrules 14 (18) and (19) apply with necessary modifications to an affidavit provided in accordance with subrule (22) or (23).

Powers of court — motion on consent or Unopposed

(25) If a motion to change a final order or agreement proceeds on the consent of the parties and any assignee or is unopposed, the clerk shall present the filed materials to a judge and the judge may,

(a) make the order asked for;

(b) require one or both parties to file further material; or

(c) require one or both parties to come to court.

Powers of Court — Directions

(26) If the court is of the opinion that a motion, whether proceeding on consent or not, cannot be properly dealt with because of the material filed, because of the matters in dispute or for any other reason, the court may give directions, including directions for a trial.

Powers of Court — Rule 14

(27) Subrules 14 (21), (22) and (23) apply with necessary modifications to a motion to change a final order or agreement.

Motion under Rule 14

(28) A motion under rule 14 may be made on a motion to change a final order or agreement.

Access to Listed Documents

(29) Subrule 19 (2) (access to listed documents) applies with necessary modifications to a document mentioned in a form or affidavit used under this rule.

5. (1) Subrule 17 (3) of the Regulation is revoked and the following substituted:

Motions to change final order or agreement

(3) Subrule (1) applies, with necessary changes, to a motion to change a final order or agreement under rule 15, unless the motion is proceeding on the consent of the parties and any assignee or is unopposed.

(2) Subrule 17 (11) of the Regulation is revoked.

6. Rule 25 of the Regulation is amended by adding the following subrules:

Changing Order — Fraud, Mistake, Lack of Notice

(19) The court may, on motion, change an order that,

(a) was obtained by fraud;

(b) contains a mistake;

(c) needs to be changed to deal with a matter that was before the court but that it did not decide;

(d) was made without notice; or

(e) was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present.

Same

(20) Rule 14 applies with necessary modifications to a motion to change a final order under subrule (19) and, for the purpose, clause 14 (6) (a) shall be read as if the reference to a temporary order were a reference to a final order.

7. (1) Clause 39 (5) (c) of the Regulation is amended by striking out “or if an affidavit has been filed in response to a motion to change a final order or agreement” and substituting “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”.

(2) Clause 39 (5) (e) of the Regulation is revoked and the following substituted:

(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.

8. (1) Clause 40 (4) (c) of the Regulation is amended by striking out “or if an affidavit has been filed in response to a motion to change a final order or agreement” and substituting “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”.

(2) Clause 40 (4) (e) of the Regulation is revoked and the following substituted:

(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.

9. Subrule 42 (11) of the Regulation is revoked.

10. The Table of Forms to the Regulation is amended by striking out,

 

15

Change information form (motion to change child support)

September 1, 2005

15A

Consent (motion to change child support)

September 1, 2005

 

and substituting,

 

15

Motion to change

April 1, 2008

15A

Change information form

April 1, 2008

15B

Response to motion to change

April 1, 2008

15C

Consent motion to change

April 1, 2008

15D

Consent motion to change child support

April 1, 2008

 

11. This Regulation comes into force on September 1, 2008.

 

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