NEWFOUNDLAND AND LABRADOR REGULATION 46/20

1. Rule 4.01(2) of the Rules of the Supreme Court, 1986 is repealed.

2. Rule 4.02 of the rules is repealed and the following substituted:

Documents requirements

4.02 (1) Every document prepared by a party for use in a proceeding shall conform to each of the following requirements:

(a) the document shall be in English, unless a statute or a rule permits otherwise;

(b) the document shall be legibly written or printed on one side of the page only; and

(2) A transcript of evidence to be used in a proceeding shall conform with the requirements for a document to be filed and each of the following further requirements:

(a) notwithstanding rule 4.02(1) and (2), the transcript may be printed on two sides of the page;

(b) a page of transcribed testimony shall be titled with the name of the witness and indicate as part of the title whether the witness is being examined directly, by cross-examination, or by redirect examination;

(d) a transcript of something other than testimony shall be titled submission, ruling, direction, instruction, discussion, or other business;

(e) the title shall appear at the top of each page of a printed transcript;

(f) each page or question shall be numbered;

(g) the transcript shall be conveniently bound, and have a cover and a blank back.

(3) Where a document prepared by a party for use in a proceeding cannot be stapled together, the document shall be bound.

(4) Where a document described in rule 4.02(3) is bound in two or more volumes, the volumes shall be clearly numbered on the cover of the document.

3. The rules are amended by adding immediately after rule 4.02 the following:

Filing documents

4.02A (1) The registrar may refuse to file a document that does not substantially comply with the rules and practice notes.

(2) Notwithstanding subrule (1) the registrar shall accept a document that does not comply with the rules and practice notes where both of the following are brought to the attention of the registrar:

(a) the document is intended to start a proceeding or make a counterclaim, or third party claim in an action; and

(b) the person seeking to file the document may lose a substantive right, such as a claim to which the Limitation Act may apply, unless the document is filed.

(3) The registrar may accept a document for filing conditionally, and return the document if a condition is not fulfilled or a judge so directs.

(4) The absence of authority to file a document does not imply that it cannot be exhibited to an affidavit or admitted as evidence.

(5) The Court may order a document that does not conform with a rule be returned to the party who prepared the document, unless the document is part of a record on which the registrar or a judge made a decision.

4. Rule 18A.04 of the rules is repealed and the following substituted:

Case management judge

18A.04 (1) Where a judge determines that one or more proceedings are appropriate for case management, the judge shall

(a) declare that the proceeding or proceedings in question shall, until further order, be conducted in accordance with this Rule;

(b) where the order includes a prospective proceeding not yet commenced, define the circumstances relating to parties, subject-matter, issues and procedure which will identify all prospective proceedings that will become subject to the order;

(c) in multi-judge centres, request that the Chief Justice or a judge designated by the Chief Justice assign a judge to act as the case management judge with respect to the proceeding or proceedings;

(d) in single-judge centres, act as the designated case management judge with respect to the proceeding or proceedings; and

(e) make any other consequential order that the judge deems appropriate to facilitate the case management process.

(2) Where a judge has requested that a case management judge be assigned in accordance with rule 18A.04(1)(c), the Chief Justice or a judge designated by the Chief Justice shall grant an order appointing a case management judge and an alternate case management judge.

(3) Where a judge is assigned to act as the designated case management judge in accordance with rule 18A.04(1)(d), the alternate case management judge shall be the Chief Justice or a judge designated by the Chief Justice.

(4) Once a case management order or designation is made, the Registrar shall cause it to be brought to the attention of the designated case management judge and the alternate.

(5) The Registrar shall cause all subsequent applications and other steps taken in the proceeding to be brought to the attention of the case management judge.

(6) An alternate case management judge shall only perform the role of case management judge when the case management judge is unavailable within a reasonable time to deal with the matter, or the parties otherwise consent.

5. Rule 47A.03 of the rules is repealed and the following substituted:

Appearing remotely with the permission of the Court

47A.03 (1) Where appropriate facilities are available at the Court or are provided by a party, a participant in a civil proceeding may appear remotely for any purpose if, upon request to the Registrar or a judge, application to the Court, or on the Courts own initiative, the Court so permits or orders.

(2) A request to the Registrar pursuant to sub-rule (1) must be made

(a) by noon the day before the appearance where a participant wishes to appear remotely at any proceeding other than a trial; or

(b) prior to

(i) the date set for the pre-trial conference, or

(ii) where there is a change in circumstances necessitating a remote appearance following the pre-trial conference, 30 days before the date set for the trial,

where the participant wishes to appear remotely at a trial in a civil proceeding.

(3) Where a participant's request to the Registrar was denied pursuant to sub-rule (1), they may bring an application to the Court pursuant to sub-rule (1) and the Court shall consider this application without regard to the prior request.

(4) A person may appear remotely at an application pursuant to sub-rule (1) unless otherwise directed by the Court.

(5) Where the Court directs or orders that a participant may appear remotely, the Court may direct that participant to make the necessary arrangements and to give notice of those arrangements to the other parties and to the Court.

(6) A judge may, upon his or her own initiative, appear remotely.

(7) A party seeking to appear remotely in a family law proceeding must make a request or an application pursuant to rule F41.

6. Rule 56.21(2) of the rules is repealed and the following substituted:

(2) In lieu of a personal bond with two sureties, the Court may accept the bond of an insurer licensed under the Insurance Companies Act to write surety and fidelity insurance, in which case the amount of the bond need only be for the aggregate value of the estate and no affidavit of justification or execution is required.

7. Rule F1.02(1)(b) of the rules is repealed and the following substituted:

(b) Parenting and contact;

8. Rule F1.04 of the rules is repealed and the following substituted:

Definitions

F1.04 (1) The following definitions apply to this Part

(a) "circuit location" means a Court location, other than a judicial center, designated by the Chief Justice and published in a practice note;

(b) "contact order" means an order providing for contact between a child and a person other than one of the parents of the child;

(c) "corollary relief proceeding" means a proceeding under the Divorce Act (Canada) in which either or both former spouses seek a child support order, a spousal support order, or a parenting order;

(d) "divorce proceeding" includes a proceeding in which a party seeks an order for divorce or an order for corollary relief;

(e) "Family Justice Services" is a division of the Supreme Court of Newfoundland and Labrador offering education and information sessions, mediation and counselling services, or any combination of these services

(i) to parties or their children where such services are required by the Court, or

(ii) to those persons who have not yet started a proceeding but wish to avail of the services in order to assist in the non-adversarial resolution of their dispute;

(f) "guidelines" means the Federal Child Support Guidelines established under the Divorce Act (Canada ) and the Child Support Guidelines Regulations established under the Family Law Act ;

(g) "hearing" includes a trial;

(h) "interim application" means an application for an order of a judge in an ongoing proceeding or, for the purpose of determining a matter relating to a final order, following final judgment but does not include an application to vary a final order;

(i) "judicial centre" means a judicial centre of the Supreme Court under the Judicature Act and includes the following Court locations:

Corner Brook;

Gander;

Grand Bank;

Grand Falls-Windsor;

Happy Valley-Goose Bay;

St. Johns;

(j) "Note to Court" is a document, the form of which has been approved by the Chief Justice, filed with the Court by Family Justice Services, which indicates whether the parties participated in a parenting information session and mediation and whether the family law dispute was resolved;

(k) "officer of the Court" includes a member of the Law Society of Newfoundland and Labrador in good standing;

(l) "originating application" includes a joint originating application unless the context requires otherwise;

(m) "originating application for variation" includes a joint originating application for variation unless the context requires otherwise;

(n) "parenting order" means any order relating to decision-making and/or parenting time;

(o) "partial recovery costs" means party and party costs or costs awarded in accordance with the scale of costs included as an appendix to rule 55 in Part I, and "on a partial recovery basis" has a corresponding meaning;

(p) "party" means a party to a proceeding;

(q) "pleadings" includes any document required to make, respond to, or reply to a claim in a proceeding required by these rules, including:

(i) an Originating Application in Form F4.03A or F4.04A,

(ii) an Originating Application for Variation in Form F5.05A or F5.06A,

(iii) a Response in Form F6.02A,

(iv) a Reply in Form F7.02A,

(v) a Financial Statement in Form F10.02A,

(vi) a Property Statement in Form F10.04A,

(vii) an Interim Application for a Procedural Order in Form F16.03A,

(viii) an Emergency Interim Application in Form F17.03A,

(ix) an Interim Application in Form F18.03A,

(x) an Affidavit in Response,

(xi) an Affidavit in Reply;

(r) "proceeding" means a proceeding described in rule F1.02(1);

(s) "property claim" means a claim in a proceeding for division of property by a spouse, former spouse, partner, or former partner;

(t) "shared-decision making" means a parenting arrangement where each party exercises parenting time of a child for not less than 40 per cent of the time over the course of a year;

(u) "special or extraordinary expenses" means those expenses set out in section 7 of the guidelines;

(v) "split decision-making" means a parenting arrangement in which each party has sole decision-making of one or more children;

(w) "substantial recovery costs" means costs awarded in an amount that is 1.5 times what would otherwise be awarded in accordance with the scale of costs included as an appendix to rule 55 in Part I, and "on a substantial recovery basis" has a corresponding meaning;

(x) "support order" means an order for child, spousal, partner, dependant, or parental support;

(y) "uncontested proceeding" means a proceeding in which

(i) the respondent has failed to file and serve a Response within the prescribed time,

(ii) the Response has been withdrawn or struck out,

(iii) the respondent has filed a Response stating that they are not contesting a claim in the application,

(iv) the applicant has failed to file a Reply in relation to a claim against them made in the Response within the prescribed time,

(v) the Reply has been withdrawn or struck out,

(vi) the applicant has filed a Reply stating that they are not contesting a claim in the Response,

(vii) the parties have applied together for the same relief, or

(viii) each party to the proceeding has indicated their consent on a draft judgment or order;

(z) "undue hardship" means the undue hardship that would be incurred by a person ordered to pay a support order or a person entitled to receive support payments as described in section 9 of the guidelines;

(a) "vary" or "variation" includes rescind and suspend, or rescission and suspension.

9. The rules are amended by adding immediately after Rule F3 the following:

Rule F3A - Interpreters

Interpreters

F3A.01 (1) The Court may, on its own motion, appoint an interpreter on such terms and conditions that the Court deems appropriate.

(2) A party may, at any time, apply for a procedural order to appoint an interpreter.

10. (1) Rule F4.07(1) of the rules is repealed and the following substituted:

Information which must be included in the Originating application

F4.07 (1) An Originating Application containing a claim for divorce, parenting, contact order or child support must include

(a) subject to subrule (2), the name, birth date, and place of residence of every child of the parties relationship whether or not the children are over the age of majority and whether or not any relief is claimed in relation to the child; or

(b) a statement that there are no children of the parties relationship.

(2) Rule F4.07(3)(b)(iv) of the rules is repealed and the following substituted:

(iv) there is split or shared decision-making;

11. Rule F5.07(b)(iv) of the rules is repealed and the following substituted:

(iv) there is split or shared decision-making;

12. Rule F6.03(3)(b)(iv) of the rules is repealed and the following substituted:

(iv) there is split or shared decision-making;

13. Rule F8.03(4) of the rules is repealed and the following substituted:

(4) To personally serve a document on a manager, as defined in the Children, Youth and Families Act, a copy of the document must be hand-delivered to the manager subject to rule F8.13.

14. Rule F8.05(1)(b) of the rules is repealed and the following substituted:

(b) mailing the document or a copy addressed to the party at the party's address provided in accordance with rule F8.02;

15. Rule F14.02(2)(a) of the rules is repealed and the following substituted:

(a) the proceeding has been brought under the Children, Youth and Families Act;

16. Rule F14.05(1)(a) of the rules is repealed and the following substituted:

(a) permits a party or lawyer to appear remotely pursuant to rule F41 ("Appearing Remotely"); or

17. Rule F17.02(1)(a)(ii) of the rules is repealed and the following substituted:

(ii) there is an immediate danger to the physical, emotional or psychological safety, security or well-being of a child or another person,

18. Rule F17.06(a) of the rules is repealed and the following substituted:

(a) permits a party or lawyer to appear remotely pursuant to rule F41 ("Appearing Remotely"); or

19. Rule F17.08 of the rules is repealed and the following substituted:

Where rule does not apply

F17.08 This rule does not apply to warrants under the Children, Youth and Families Act.

20. Rule F18.03(3)(b) of the rules is repealed and the following substituted:

(b) there is an immediate danger to the physical, emotional or psychological safety, security or well-being of a child or another person,

21. Rule F18.07(a) of the rules is repealed and the following substituted:

(a) permits a party or lawyer to appear remotely pursuant to rule F41 ("Appearing Remotely"); or

22. Rule F19.05(a) of the rules is repealed and the following substituted:

(a) permits a party or lawyer to appear remotely pursuant to rule F41 ("Appearing Remotely"); or

23. Rule F21.03(2) of the rules is repealed and the following substituted:

(2) A mediator or counselor appointed under these rules may stipulate that they are not liable for loss or damage suffered by a person by reason of an action or omission of the mediator or counselor in the discharge of the duties under these rules.

24. Rule F23.06 of the rules is repealed and the following substituted:

Cost consequences

F23.06 (1) Where only one party has made an offer to settle issues of decision-making and/or parenting time, and the offer to settle

(a) is delivered

(i) at least two clear days before the application is to be heard, where it relates to an interim application, or

(ii) at least seven clear days before the trial is to commence, where the offer relates to a trial;

(b) is not accepted before the commencement of the application or trial;

(c) is not withdrawn in accordance with rule F23.02, or deemed rejected in accordance with rule F23.03 before the start of the hearing or trial; and

(d) is found to be as favourable or more favourable than the judicial outcome,

that party is entitled to the partial recovery costs of those portions of the proceeding to which the offer to settle related, to be assessed on Column 3 of the Scale of Costs from the commencement of the proceeding to the date before the offer to settle was delivered and on Column 5 of the Scale of Costs from the date of the offer to settle to the conclusion of the proceeding, subject to rule F33.02(3) ("Presumption").

(2) Where a party has made an offer to settle one or more claims, other than a claim relating to decision-making and/or parenting time, and the offer to settle

(a) is delivered

(i) at least two clear days before the application is to be heard, where it relates to an interim application, or

(ii) at least seven clear days before the trial is to commence, where the offer to settle relates to a trial;

(b) is not accepted before the commencement of the application or trial;

(c) is not withdrawn in accordance with rule F23.02, or deemed rejected in accordance with rule F23.03 before the start of the hearing or trial; and

(d) is found to be as favourable or more favourable than the judicial outcome,

that party is entitled to the partial recovery costs of those portions of the proceeding to which the offer to settle related to be assessed on Column 3 of the Scale of Costs from the commencement of the proceeding to the date before the offer to settle was delivered and on Column 5 of the Scale of Costs from the date of the offer to settle to the conclusion of the proceeding.

25. Rule F25.04(1)(a) of the rules is repealed and the following substituted:

(a) permits a party or lawyer to appear remotely pursuant to rule F41 ("Appearing Remotely"); or

26. Rule F26.02(2)(b) of the rules is repealed and the following substituted:

(b) the willingness of the person seeking decision-making responsibility to facilitate parenting time with each parent;

27. Rule F30.02(1)(a) of the rules is repealed and the following substituted:

(a) permits a party or lawyer to appear remotely pursuant to rule F41 ("Appearing Remotely"); or

28. Rule F32.02(1) of the rules is repealed and the following substituted:

What information may be contained in an affidavit

F32.02 (1) A person signing an affidavit must only set out facts of which they have personal knowledge, except where this rule provides otherwise.

29. Rule F37.01 of the rules is repealed and the following substituted:

Proceedings

F37.01 (1) To the extent that the procedure or time limits in this Part are inconsistent with the Children, Youth and Families Act, the provisions of the Act will apply.

(2) Any hearing under the Children, Youth and Families Act must be

(a) held as informally as the circumstances of the case permit;

(b) scheduled as expeditiously as the schedule of the Court allows and as fairness to the parties and affected persons requires; and

(c) held in private unless the judge hearing the matter determines that the proper administration of justice or the interests of a child require otherwise.

(3) A judge may make any order under rule F14.07 ("Powers of case management judge") not inconsistent with the Children, Youth and Families Act that may assist in focusing a child protection hearing on the matters in dispute.

(4) An application for a protective intervention order and any other application under the Children, Youth and Families Act must be started by presenting the original and one copy of an application to the Court.

(5) An application for another order relating to children in respect of whom a protective intervention order has already been sought or in respect of other children in the same family must be given the same file number as the original application where the application is made in the same judicial centre.

30. Rule F37.02(1) of the rules is repealed and the following substituted:

Summary judgment

F37.02 (1) Upon completion of a presentation hearing as required by section 31 of the Children, Youth and Families Act and an order being made directing that a protective intervention hearing is to take place, a party may make an application for a summary judgment for a final order without a trial on all or part of any claim made or defence to be presented in the proceeding.

31. Rule F37.03(2) of the rules is repealed and the following substituted:

(2) A judicial case conference may only occur at some time after the conclusion of the presentation hearing as required by section 31 of the Children, Youth and Families Act and before a full hearing occurs.

32. Rule F38.09(5) of the rules is repealed and the following substituted:

(5) Where the Court has notice of the alleged wrongful removal or retention of a child, the Court must not deal with the merits of decision-making rights in respect of the child until an application for return of the child under the Hague Convention on International Child Abduction has been determined, unless a return application is not filed within a reasonable time after notice is given to the Court.

33. The rules are amended by adding immediately after Rule F40 the following:

Rule F41 – Appearing Remotely

Definitions

F41.01 (1) For the purposes of this rule,

(a) "appear remotely" means to appear at a Court appearance by teleconference, videoconference, or other means of communication acceptable to the Court; and

(b) "participant" means a party, a lawyer for a party, or any other individual required to attend a Court proceeding.

Appearing remotely with the permission of the Court

F41.02 (1) A participant may appear remotely if, upon request to a registry clerk, the Court so permits.

(2) Subject to the provisions of the Children, Youth and Families Act or another Act, a request to appear remotely at a proceeding other than a trial must be made to the registry clerk at least 3 business days before the appearance.

(3) Subject to the provisions of the Children, Youth and Families Act or another Act, a request to appear remotely at a trial must be made at least 3 days before the date scheduled for the trial readiness conference.

(4) A participant may, at any time, apply for a procedural order permitting the participant to appear remotely.

(5) A request to appear remotely or an application for an order to appear remotely at any proceeding must include:

(a) the reason for the request; and

(b) where a videoconference is requested, the proposed arrangements and equipment for the participant's appearance by videoconference.

(6) Where a participant has been permitted to appear remotely, the Court may:

(a) provide directions regarding the manner of the remote appearance; and

(b) require a party to make any necessary arrangements and to give notice of those arrangements to all other parties and to the Court.

(7) A judge may, at their discretion, appear remotely or order that a participant appear remotely.

Factors to consider

41.03 In deciding whether to permit a participant to appear remotely, the Court may consider:

(a) the general principle that evidence and argument are best presented orally and in person;

(b) the nature of the evidence to be offered during the appearance and its importance to determining the issues in the case;

(d) the impact such an appearance might have on the Court's ability to make findings, including credibility assessments;

(e) whether a party, lawyer for a party, or witness is unable to attend because of infirmity or illness;

(f) the cost and inconvenience of requiring the participant to attend in person;

(g) whether the other parties consent to such an appearance; and

(h) any other relevant consideration.

Discretion of the Court

41.04 Where a participant appears remotely pursuant to rule 41.02(1) a judge may adjourn the proceeding and require the participant to appear in person.

Expense of remote appearance

41.05 Where the Court permits a participant to appear remotely, the actual expense of the appearance, unless otherwise ordered by the Court, must be paid by the party making the request.

34. (1) The rules are amended by repealing and substituting Form 56.12A.

(2) The rules are amended by repealing and substituting the following forms: F4.03A; F4.04A; F5.05A; F5.06A; F6.02A; F8.03A; F10.02; F11.02; F16.03A; F17.03; F23.01A; F23.02A; F23.05A; F25.03A; F26.02A; F29.02A; F31.02A; F34.02B; F34.02C; F38.04A; F38.04B; and F38.06A.

Commencement

35. (1) Sections 1 to 6, 9, 13 to 16, 18 and 19, 21 to 23, 25, 27 to 33 and subsection 34(1) come into force on August 6, 2020.

(2) Sections 7 and 8, 10 to 12, 17, 20, 24, 26 and subsection 34(2) come into force on March 1, 2021.