RULE 9: CONTINUING RECORD

CONTINUING RECORD CREATED

9. (1) A person starting a case shall,

(a) prepare a single continuing record of the case, to be the court’s permanent record of the case; and

(b) serve it on all other parties and file it, along with the affidavits of service or other documents proving that the continuing record was served. O. Reg. 89/04, s. 4.

CONTINUING RECORD NOT REQUIRED

(2) It is not necessary to start a continuing record in the following circumstances:

1. A joint application for divorce case.

2. An uncontested divorce case except that if the respondent files an answer, the respondent shall start the continuing record on filing the answer.

3. The applicant files a change information form (Form 15) except that if the respondent files an affidavit that sets out any disagreement, the respondent shall start the continuing record on filing the affidavit.

4. The case is started in the Superior Court of Justice, other than the Family Court of the Superior Court of Justice, before July 1, 2004 and a party files a notice of change in representation (Form 4) or a party’s lawyer files a notice of motion to be removed as lawyer on or after July 1, 2004.

5. The parties file a consent motion for a final order. O. Reg. 89/04, s. 4.

SUPPORT ENFORCEMENT CONTINUING RECORD

(3) If a support order is filed with the Director of the Family Responsibility Office, the person bringing the case before the court shall prepare the continuing record, and the continuing record shall be called the support enforcement continuing record. O. Reg. 89/04, s. 4.

CHILD PROTECTION CONTINUING RECORD

(4) In an application for a child protection order, the continuing record shall be called the child protection continuing record. O. Reg. 89/04, s. 4.

STATUS REVIEW CONTINUING RECORD

(5) In an application for a status review of a child protection order, the continuing record shall be called the status review continuing record. O. Reg. 89/04, s. 4.

FORMAL REQUIREMENTS OF CONTINUING RECORD

(6) In preparing and maintaining a continuing record, support enforcement continuing record, child protection continuing record and status review continuing record under this rule, the parties shall meet the requirements set out in the document entitled “Formal Requirements of the Continuing Record under the Family Law Rules”, dated March 1, 2004, published by the Family Rules Committee and available through the web site www.ontariocourts.on.ca . O. Reg. 89/04, s. 4.

SEPARATION OF SINGLE RECORD

(7) Instead of the single continuing record mentioned in subrule (1), the continuing record may be separated into separate records for the applicant and the respondent, in accordance with the following:

1. In any case the court may order separate records on its own initiative or at the request of either party at a case conference, settlement conference or trial management conference.

2. In a standard track case referred to in subrule 39 (7) or a case under rule 41, any party may, on filing their first document in the case, elect that the continuing record consist of separate records.

3. If the court orders separate records and there is more than one applicant and respondent, the court may order separate records for each applicant and respondent.

4. If the record consists of separate records, the separate records are called the applicant’s record and the respondent’s record. O. Reg. 89/04, s. 4.

COMBINING SEPARATED RECORDS

(8) If the continuing record has been separated, the court may order the records to be combined into a single record on its own initiative or at the request of either party at a case conference, settlement conference or trial management conference. O. Reg. 89/04, s. 4.

COMBINING SEPARATED RECORDS ON CONSENT

(9) If the continuing record has been separated, the parties may, if they agree, combine the separate records into a single continuing record, in which case the parties shall arrange together for the combining of the records. O. Reg. 89/04, s. 4.

BY WHOM RECORD IS SEPARATED OR COMBINED

(10) If the court orders that the continuing record,

(a) be separated or combined on its own initiative, the court shall give directions as to which party shall separate or combine the record, as the case requires;

(b) be separated or combined at the request of a party at a case conference, settlement conference or trial management conference, the party that makes the request shall separate or combine the record, as the case requires, unless the court orders otherwise. O. Reg. 89/04, s. 4.

MAINTAINING CONTINUING RECORD

(11) The parties are responsible, under the clerk’s supervision, for adding to a continuing record that has not been separated all documents filed in the case and, in the case of separated records, each party is responsible, under the clerk’s supervision, for adding the documents the party files to the party’s own record. O. Reg. 89/04, s. 4.

DUTIES OF PARTY SERVING DOCUMENTS

(12) A party serving documents shall,

(a) if the continuing record has not been separated,

(i) serve and file any documents that are not already in the continuing record, and

(ii) serve with the documents an updated cumulative table of contents listing the documents being filed; and

(b) if the continuing record has been separated,

(i) serve and file any documents that are not already in the party’s separate record, and

(ii) serve with the documents an updated cumulative table of contents listing the documents being filed in the party’s separate record. O. Reg. 89/04, s. 4.

NO SERVICE OR FILING OF DOCUMENTS ALREADY IN RECORD

(13) A party shall not serve or file any document that is already in the record, despite any requirement in these rules that the document be served and filed. O. Reg. 89/04, s. 4.

SPECIAL CASE: CHILDREN’S LAWYER

(14) If the continuing record has been separated and the Children’s Lawyer has been appointed as the legal representative of a child who is not a party under subsection 89 (3.1) of the Courts of Justice Act, the Children’s Lawyer may prepare, serve and file a separate record in accordance with this rule as if the Children’s Lawyer were a party. O. Reg. 89/04, s. 4.

DOCUMENTS REFERRED TO BY TAB IN RECORD

(15) A party who is relying on a document in the record shall refer to it by its tab in the record, except in a support enforcement continuing record. O. Reg. 89/04, s. 4.

DOCUMENTS NOT TO BE REMOVED FROM RECORD

(16) No document shall be removed from the continuing record except by order. O. Reg. 89/04, s. 4.

WRITTEN REASONS FOR ORDER

(17) If the court gives written reasons for making an order,

(a) they may be endorsed by hand on an endorsement sheet, or the endorsement may be a short note on the endorsement sheet saying that written reasons are being given separately;

(b) the clerk shall add a copy of the reasons to the endorsements section of the record; and

new record on motion to change final order

(18) If the court has made a final order and a motion to change is made, a new continuing record shall be prepared and this rule applies to the new continuing record. O. Reg. 89/04, s. 4.

APPEAL

(19) If a final order is appealed, only the notice of appeal and any order of the appeal court (and no other appeal document) shall be added to the record. O. Reg. 89/04, s. 4.

TRANSFER OF RECORD IF CASE TRANSFERRED

(20) If the court transfers a case to another municipality the clerk shall, on request, transfer the record to the clerk at the court office in the other municipality, and the record shall be used there as if the case had started in the other municipality. O. Reg. 89/04, s. 4.

CONFIRMATION OF SUPPORT ORDER

(21) When a provisional support order or a provisional change to a support order is sent to a court in Ontario for confirmation,

(a) if the provisional order or change was made in Ontario, the clerk shall send the continuing record to the court office where the confirmation is to take place and the respondent shall update it as this rule requires; and

(b) if the provisional order or change was not made in Ontario, the clerk shall prepare the continuing record and the respondent shall update it as this rule requires. O. Reg. 89/04, s. 4.

TRANSITIONAL PROVISION, CASES IN THE SUPERIOR COURT OF JUSTICE

(22) This rule applies to cases started in the Superior Court of Justice before July 1, 2004, in the following manner:

1. Any party may at any time prepare, serve and file the continuing record as described in this rule. This rule then applies to all documents filed afterward.

2. If neither party has filed the continuing record in accordance with paragraph 1, the first party who files a document on or after July 1, 2004 shall start the continuing record as described in this rule. This rule then applies to all documents filed afterward.

3. Despite paragraph 2, the court may free a party from the obligation to start the continuing record, and give other directions about the form and content of the record for the case.

4. The continuing record is started with the documents starting and answering the case, a summary of court cases (Form 8E) and the parties’ most recent financial statements, unless the court orders otherwise. O. Reg. 89/04, s. 4.

TRANSITIONAL PROVISION, CASES IN FAMILY COURT OF SUPERIOR COURT OF JUSTICE OR ONTARIO COURT OF JUSTICE

(23) Despite this rule, a case started in the Family Court of the Superior Court of Justice or the Ontario Court of Justice before July 1, 2004 continues on or after that date to be governed by the predecessor of this rule, as it read on June 30, 2004, except that a party may request that the continuing record be separated under paragraph 1 of subrule (7) and if the record is separated, this rule applies to all documents filed thereafter. O. Reg. 89/04, s. 4.

See: O. Reg. 89/04, ss. 4, 18.