A Guide for Counsel to Legislation for Family Law Orders

June 9, 2021

Notes:

Note #1: This Guide is prepared from the perspective of the East Region of the Ontario SCJ. All of the sites of the East Region have Unified Family Courts (CJA s. 21). For this reason, I do not address jurisdictional issues between OCJ and SCJ.

Note #2: This is simply a Guide and a work in progress. It is probably not complete and may contain errors. Do your homework to confirm the jurisdiction of the court to make the orders that you seek.

1.What? A New Form for Family Orders

Effective March 1, 2021, Family Orders must stipulate the legislation under which the order is made. See: Form 25 Family Law Orders (General)

2.Why?

To clarify the applicable legislation on the face of the order. This is important for enforcement and future variations.

To clarify appeal routes. In general, appeals of SCJ orders under provincial legislation lie to the Divisional Court, and appeals of SCJ orders under the Divorce Act lie to the Court of Appeal. See CJA, s.6 and 19, and Family Law Appeals Routes.

3.The Challenge:

Judges frequently receive draft orders that are improperly prepared. Whether represented by counsel or not, parties often provide draft orders that list all orders under the generic section of the form as a type of "catch-all" approach or list orders under incorrect legislation. This creates a mess that needs to be sorted out.

When dealing with motions to change, the court and the parties may have difficulty confirming the applicable legislation if the existing order does not stipulate the legislation on its face.

It is also not uncommon for previous consent orders to refer to the wrong legislation. For example, consent orders may refer to a definition under the Divorce Act, such as "child," when the parties were not married. Consent orders may refer to the federal Child Support Guidelines when the child support order is made under provincial legislation.