Practice directions should be consistent across Ontario
By April Cunningham, Associate Editor
Procedural directions for filing family law motions in court should be consistent across the province, says Toronto lawyer Gene C. Colman.
Instead, practice directions for such materials as factums vary between judicial regions — and even between judges in some cases, says Colman, principal of Gene C. Colman Family Law Centre.
“Minor idiosyncrasies of local areas are reasonable, but what has happened in the family law courts is there is a plethora of practice directions for the different judicial districts regarding a wide variety of fairly substantive and common procedural issues,” he tells AdvocateDaily.com.
In Toronto's Superior Court of Justice, for example, most motions require lawyers to hand in a factum, which outlines the facts of a case. However, that is not consistent with other regions across Ontario.
“If the judge and the rules committee decide it’s advantageous to have a factum, that is fine, but no other jurisdiction in Ontario requires one for a regular motion,” he says, adding that often, in fact, factums aren’t allowed. “It’s quite inconsistent.”
As a result, out-of-town counsel may be at a disadvantage, Colman says.
“You may get a rude awakening if you come to a Toronto courtroom and you haven’t done your factum.”
According to the Ontario Courts website, the Superior Court of Justice reviewed regional and provincial practice directions in an effort to consolidate and eliminate obsolete directions in 2013-2014.
Province-wide practice directions are consolidated while regional-specific directions remain.
Colman says his firm recently discovered the disparities between regions when filing materials in Stratford.
“We thought judges appreciated a factum,” he says. “You don’t want to give them anything lengthy, but a few pages of your main points generally seems to make it easier for the court. It also puts the opposing side on notice what your arguments are so they can meet your arguments and get down to the nitty-gritty.”
The Stratford court, however, did not want the factum and gave Colman's firm a firm reminder about following the rules.
Colman says rules on factums and other practice directions should be standard, just as the Family Law Rules provide consistency across the province. All 42 rules are simply worded and allow consistency. He says he personally believes factums should be optional and permitted across the province in all motions of less than one hour; if the motion is longer than an hour then a factum should be mandatory.
“Lawyers need to know what the rules are and self–reps need to know what the rules are, and I have never heard a good policy argument for making things different,” Colman says.
“I don't think it's fair to require lawyers to have to study these lengthy practice directions every time they're going out of their usual bailiwick.”