NEW ONTARIO
FAMILY LAW
RULES

The new rules create a "LOSER PAYS" system in Ontario for the first time.

This is going to hurt.

The proposed rules 246, 248, and 256 will saddle the loser with the woman's costs almost every time, and load up those costs with everything she and her lawyer can think of, including incidental items like baby-sitting and parking.

Think you're safe outside Ontario?

Don't count on it.  Every province has its own family rules committee, and you can bet they are watching.   This is coming soon to a family court near you!

Many of the worst injustices of the past are still preserved by the new rules.

Action

There are things that you can do -- that you must do as soon as possible:

• Get Informed
• Send Your Objections to the Committee
• Mobilize Your Group
• Coordinate with the Ontario Wisdom Council

The Provincial PC party is continuing the feminist, socialist policies of the NDP, treating all men as villains.

This is a huge and repressive change to our justice system, with no warning: where is the bill, where are the hearings, the parliamentary debate, the vote of parliament?

Where is the democracy in this? Answer: the democracy is where you put it.  If you don't make the province act fairly and democratically, it simply won't happen!

Get Informed [back]

Please get yourself informed by downloading the rules from either of the following sites (almost any modern word processor you have can read the WordPerfect files downloaded from these sites!):

• Queen's University

• QUICKLAW

You can also read the files through your browser (not very practical
with the larger files):

• Executive Summary

• The Commentary (55 pages)

• Draft Family Law Rules

Learn:

• About the New Rules

• About the Most Alarming Problems

• About the Family Rules Committee

• About the Process of Making the Rules

• About What Critics Have Said:
            HEART
            Yvonne Choquette
            David Osterman

• About Some Early Results of "Public" Consultation

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Who are the Family Rules Committee? [back]

It's a group of 25 or 30 people drawn exclusively from the legal profession (judges and lawyers, and 2 from courts administration), who make the rules for the family courts in Ontario. They get their power from the Ontario Courts of Justice Act, sections 67 and 68.

IT LOOKS INNOCENT ENOUGH, just a friendly gang of regulators (and some of the changes are good), but when they slam the door in father's faces by introducing something as vicious as Loser Pays, they become a shadow government of the pros, by the pros, and for the pros.

It is disturbing that some of the committee members appear to be radical feminists.  It would be very wrong to have strong advocates of only one ideology in the committee, and no balancing advocates.

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Send Your Objections [back to top]

Time's up, but the battle is far from over!  A team within the Ontario Wisdom Council continues to work on changing the rules.  We won't publish our plans, but please be ready to help again soon!

The Family Rules Committee extended the deadline for "well-considered comments" until "mid-June" 1997.  Comments arriving after June 20 may be discarded.

The Old Instructions:

Accept the Family Rules Committee's offer! Send in your comments! Reply by June 20, at the latest.

• Check out the information in this site, choose one or more problems or suggestions you have, and write to the committee.

• Keep it brief, keep it respectful, and give them no excuse to write you off as a nut case.

• SUPPLY YOUR RETURN ADDRESS. If they have no way to reply to you, they have no reason to look at your material! Send to:

Roman Komar, Research Counsel
Room 155
60 Queen Street, West
Toronto, Ontario   M5H  2M4
C A N A D A
fax: (416) 327-5256 By Mid-June, 1997, at the latest!

-OR-

Joan Hatch, Research Counsel for the Family Court
55 Main Street, West
Hamilton, Ontario   L8P  1H4
C A N A D A
fax: (905) 577-8305

• MAIL & FAX. Send your material by FAX immediately AND mail it by regular post.

• AND PLEASE, SEND A COPY TO US, at edt@myna.com,
  so that we can keep track of what you said, and how effective we have been.

The Most Alarming Problems [back]

What’s Wrong with the New Family Law Rules - The “High” Points:

They Kill Access to Justice:

• Loser pays the winner’s court costs.

• Costs are a “complete recovery” (the winner’s lawyer’s fee, plus all incidentals: parking, babysitting, time off work).

• Since women win 9 times out of 10, they will hire the most expensive lawyer, expecting that men will pay.

• Since father is the better parent 5 times out of 10, children will lose access to justice when dad can’t defend their interests.

• Typical loser’s (men’s) costs will probably be multiplied by three or four -- which makes justice so expensive that you simply can't raise the money for it.

• According to rule 216, the Office of the Children’s Lawyer (which is a branch of the Attorney General's office) may also recover the actual costs as a party or for an investigation and report -- the government will bill you after it beats you.

They Preserve Most of the Old Evils:

• Nothing prevents false allegations.

• Nothing prevents misuse of ex parte orders.

• Nothing prevents delaying to create a status quo.

• Nothing prevents abducting children to set up residence.

• Protections against last minute motions are too weak.

If They “Work”, Other Provinces Will Use Them!

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Process of Making the Rules [back]

The process of making the new rules take effect is this (some technical details are left out):

1. The committee has been discussing the rules for a few years.

2. The committee put the suggested new rules out to the public for comment (we don't know exactly when, but the committee offices apparently started sending out printed copies roughly the first of May).  Very few people actually have any means of knowing about them, and they are not readily available to most even now.  Internet access is the easiest, but the forms are not available via the internet.

3. The committee will be accepting comments until May 1, 1997.

4. The committee will discuss the comments they have received, and make any changes to the rules that they see fit. The timing of this is up to them.

5. The committee passes their final draft of the rules to the Attorney General, and a process of preparation takes place in the ministry, typically for 2 or 3 weeks.

6. Cabinet votes on the new rules. Normally, such things pass. This part typically takes about 2 weeks.

7. The new regulations are announced in the Parliamentary Gazette, and that's that.

As important as they are, the rules are not laws, they are just regulations, so they will be changed by cabinet without any vote in parliament.

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Mobilize Your Group [back to top]

We're asking every group to do the following :

1. Get informed. Either download the new rules from one of the web sites, or at least read the excerpt from the official executive summary lower down in this page.

2. See if you can find any other problems in the new rules. Think dirty. How might the rules be abused? Get back to us, and we will combine your comments with others (making sure we give credit to all sources).

3. Send a representative of your group to the Ontario Wisdom Council meeting (the first Thursday of each month, 7:30pm, at Toronto City Hall, corner of Bay and Queen -- enter the main doors from the plaza, and ask security for the location of the "HEART" meeting).

4. Publicize the problems with the new Family Law Rules! Copy material from this site, and distribute it to as many people as possible.  Discuss the dangers at your meetings.

WE GET 2 SHOTS AT THIS ISSUE: one by submitting comments by mid-June, and the other by communicating with the government.

IT'S NOT TOO LATE! With Bill C-41, and worse with Bill C-92, we got informed at the last minute of the day, but we've been warned about these new rules at the eleventh hour, and there is still time to act!

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Coordinate with the Ontario Wisdom Council
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The Ontario Wisdom Council is a loose association of groups that share a belief that the family law system is seriously biased and flawed, in a way that is damaging to children and to everyone else in the family.

HEART has discussed this emergency with the Ontario Wisdom Council, and taken the job of collecting facts and ideas for coordinated action.

HEART researchers are studying the question of how much information we will get about the committee's work studying the public comments.

Send a representative of your group to the Ontario Wisdom Council meeting (the first Thursday of each month, 7:30pm, at Toronto City Hall, corner of Bay and Queen -- enter the main doors from the plaza, and ask security for the location of the "HEART" meeting).

Can you help with research, emailing, Faxing? If you can do any of these, please contact us at edt@myna.com.

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Excerpted from the new rules:
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November, 1996

FAMILY LAW RULES

CONSULTATION DRAFT

EXECUTIVE SUMMARY

....

These draft rules are being circulated for comment by the Family Rules Committee, established under Ontario's Courts of Justice Act. Comments are requested by 1 May 1997 [this deadline has since been extended to mid-June --e.t.].

....

STEP-BY-STEP GUIDE TO THE PROCEDURE
     
1.   Applicant chooses where to start the case.
     a)   Must generally be where a party lives or, in a  custody
          and access case, where the child lives (rule 34).
     b)   Parties can agree on another place but must get court's
          permission in advance (rule 34).
     c)   All steps (filings, motions,  hearings) are where  case
          is started  (rule  35)  until  the  enforcement  stage,
          unless case is transferred (rule 39).
     
2.   Applicant starts case by issuing application.
     a)   Only one kind of originating document (rule 64).
     b)   Simple,  easy  to   use  form  (Form   64).  Can   also
          accommodate large, complex case.
     c)   Application contains first court date (rule 66).
     d)   But if only a divorce is claimed, court date is not set
          until case is defended (rule 67).
     
3.   Financial  statement   (Form  102)   must  be   filed   with
     application in support or property case (rule 102).
     a)   Can be ordered  by court in  custody/access case  (rule
          103).
     b)   Must attach latest tax  return or direction to  Revenue
          Canada to release it (rule 106).
     c)   Must be  corrected as  information comes  to light  and
          updated as information changes (rule 112).
     
4.   Continuing court record created when application filed (rule
     75).
     a)   All documents  are filed  in this  record up  to  trial
          (rule 78).
     b)   When case goes to trial, trial record is prepared  with
          only documents needed for trial (rule 217).
     
5.   Applicant  serves  application  by  "special service"  (rule
     43).
     a)   Special service includes  personal service and  service
          on a lawyer.
     
6.   Late filing of documents  not permitted without court  order
     (rule 18).
     
7.   Respondent has 30 days to serve and file answer (rule 89).
     a)   Time for answer is 60 days if respondent served outside
          Canada and the United States (rule 89).
     b)   If no answer,  case goes  by default  hearing on  first
          court date.
     c)   If  no  answer  to   case  claiming  only  a   divorce,
          undefended divorce goes automatically  to a judge  with
          affidavit evidence (rule 411).
     
8.   Respondent defends by serving answer (rule 89).
     a)   Simple,  easy  to  use  form  (Form  89).    Can   also
          accommodate large, complex cases.
     b)   Can include a claim by respondent against applicant  or
          any other person (rule 90).
     c)   If  case  involves   support  or  property,   financial
          statement (Form 102) required with answer (rule 102).
     
9.   Motion for temporary order can be served anytime.
     a)   Minimum notice period is 3 days (rule 120).
     b)   Motion can be without  notice if notice unnecessary  or
          not reasonably possible, if immediate danger to a child
          or party or if service would have serious  consequences
          (rule 121).
     c)   Financial statement  more  than  30 days  old  must  be
          redone (rule 111).
     d)   Telephone and video conference motions available as  of
          right.  Initiating  party responsible for  arrangements
          (rule 117).
     
10.  Planning meeting scheduled  with a judge  in every  defended
     case (rule 131).
     a)   Purposes are to narrow  issues, consider ADR,  schedule
          case events (rule 132).
     
11.  Each party must disclose  all relevant documents on  request
     (rule 157).
     a)   Documents must be produced  or copied on request  (rule
          157, 158).
     b)   Omissions or errors must be corrected (rule 163).
     
12.  Questioning  of  parties   before  trial  (examination   for
     discovery or cross-examination on affidavit) available  only
     by consent or by court order (rule 167).
     
13.  Offer to settle must be signed by party making it as well as
     party's lawyer (rule 149).
     
14.  Settlement conference held if judge directs it (rule 130).
     a)   Expected to occur in vast majority of cases.
     b)   Settlement conference briefs required (rule 142), to be
          returned after conference (rule 145).
     
15.  Trial management  conference  held if  judge  directs  (rule
     130).
     
16.  Trial cannot be  heard by judge  who heard contested  motion
     for temporary order (rule 128) or conducted planning meeting
     or settlement conference (rule 147).
     
17.  Costs to be decided  at each step of  case by judge  hearing
     that step (rule 247).
     a)   Costs intended to allow  full recovery of all  expenses
          (rule 246), including  party's lost  wages or  credits,
          travel and child care (rule 256).
     b)   Successful party entitled  to costs  (rule 248)  unless
          party has behaved unreasonably (rule 250).
     c)   Offers and  behaviour in  relation to  case,  including
          before case started, taken into account (rule 253).
     
18.  Successful party prepares draft order for approval by  other
     parties and signature by court staff (rule 249).
     a)   If successful  party  has no  lawyer  or if  order  not
          prepared in  10 days,  other  party can  prepare  order
          (rule 265).
     b)   If no party has a lawyer,  court staff will prepare  it
          (rule 266).
     c)   If party fails to approve draft order in 5 days,  order
          may be signed without approval (rule 270).
     d)   Orders must be served on all parties (rule 274).
     
19.  Rules place major emphasis on enforcement measures.
     a)   Enforcement  takes  place  generally  where   recipient
          resides (rule 36) or,  for custody/access order,  where
          the child resides (rule 37).
     b)   Recipient can require financial statement from payor in
          default (rule 294).
     c)   Recipient  can   require  income   source  to   provide
          information about payor (rule 300).
     d)   Recipient  can  require  payor  to  come  to  financial
          examination (rule 304).
     e)   Refusal to come to financial examination punishable  by
          40 days in jail (rule 312).
     f)   Garnishment available to seize joint bank accounts  and
          other joint debts (rule 340).
     g)   Payor can  be required  to come  to court  for  default
          hearing,  just  as  under  Family  Support  Plan   Act,
          including in General Division (rules 360, 361).
     h)   Procedure for receivers  (rules (196-214) and  contempt
          orders (rules 371-380) set out clearly.
 

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Ontario Courts of Justice Act [back]

....

SECTION 67

67.--(1) The committee known as the Family Rules Committee is continued under the name Family Rules Committee in English and Comité des en matière de droit de la famille in French. R.S.O. 1990 c. C.43, s. 67 (1).

(2) The Family Rules Committee is composed of,

(a) the Chief Justice and Associate Chief Justice of Ontario;

(b) the Chief Justice and associate chief justices of the Superior Court of Justice;

(c) the Chief Justice of the Ontario Court of Justice or, at his or her designation, an associate chief justice;

(d) one judge of the Court of Appeal, who shall be appointed by the Chief Justice of Ontario;

(e) two judges of the Superior Court of Justice, who shall be appointed by the Chief Justice of the Superior Court of Justice;

(f) two judges of the Family Court, the Superior Court of Justice, or the Ontario Court of Justice, who shall be appointed by the Associate Chief Justice (Family Court);

(g) two judges of the Ontario Court of Justice, who shall be appointed by the Chief Justice of that court;

(h) the Attorney General or a person designated by the Attorney General;

(i) one law officer of the Crown, who shall be appointed by the Attorney General;

(j) two persons employed in the administration of the courts, who shall be appointed by the Attorney General;

(k) four lawyers, who shall be appointed by The Law Society of Upper Canada;

(l) two lawyers, who shall be appointed by the Associate Chief Justice (Family Court);

(m) two lawyers, who shall be appointed by the Chief Justice of the Ontario Court of Justice.

(n) two lawyers, who shall be appointed by the Chief Justice of the Superior Court of Justice. (Amended Bill 79).

(3) The Chief Justice of Ontario shall preside over the Family Rules Committee but, if the Chief Justice of Ontario is absent or so requests, member designated by the Chief Justice shall preside.

(4) Each of the members of the Family Rules Committee appointed under clauses (2)(d), (e), (f), (g), (i), (j), (k), (l), (m) and (n) shall hold office for period of three years and is eligible for reappointment. (Amended Bill 79)

(5) Where a vacancy occurs among the members appointed under clause (2)(d), (e), (f), (g), (i), (j), (k), (l), (m) or (n), a new member similarly may be appointed for the remainder of the unexpired term. (Amended Bill 79).

(6) One-third of the members of the Family Rules Committee constitutes a quorum. R.S.O. 1990, c. C.43, s. 67 (3)-(6).

SECTION 68

68.--(1) Subject to the approval of the Lieutenant Governor in Council, the Family Rules Committee may make rules for the Court of Appeal, the Court of Justice and the Ontario Court of Justice in relation to the practice and procedure of those courts in proceedings under provisions set out in the Schedule to Part III (Unified Family Court), except proceedings under the Young Offenders Act (Canada).

(2) Subsections 66 (2) and (3) apply with necessary modifications to the Family Rules Committee making rules for the courts described in (1).

(3) The rules made by the Family Rules Committee may adopt, modify or exclude the rules made by the Civil Rules Committee.

(4) Subject to the approval of the Lieutenant Governor in Council, the Family Rules Committee may prepare rules for the purpose of section 68 the Young Offenders Act (Canada) for consideration by the Ontario Court of Justice. R.S.O. 1990, c. C.43, s. 68.

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