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FINAL: New Family Law Practice Note 2 effective date and final version, and summary of Town Hall

Ken Proudman - Barr Picard Law (Alberta. Joined 2017)

The new PN2 pertaining to Regular and Special Chambers will come into effect on April 3, 2018. It will only apply to Applications that are been booked for Special Chambers on or after April 3, 2018. There have been several changes since the last draft was released. The final version can be found here.

Here are some of the highlights and the Honourable Madam Justice D.A. Yungwirth's comments from today's Courthouse Town Hall meeting in Edmonton, and Calgary via video feed:
  • Para 6 obliges the Applicant to make best efforts to find an agreeable Special Chambers hearing date, failing which they can select a date. Within a week, the Respondent can object by seeking leave to obtain a different date.

  • Para 8: "except in cases of urgency" the following matters can't be heard in Regular Chambers: changes of custody, substantial changes to parenting arrangements, and retroactive CS/SS for a period exceeding 6 months.

  • Clerks will no longer bounce documents for exceeding 3 issues. The obligation is now on the parties to ensure there is sufficient time, although the hearing Justice can adjourn one or more issues to a separate hearing date and order costs of the adjournment.

  • If a Family Law Act action has already been commenced and you need to bring another application, don't find a new Claim, file Form FL-18.

  • As mentioned in a previous article, Reply Affidavits are back, and there are new filing deadlines and page limits for all applications and affidavits. There is no longer a distinction between documents filed for Regular Chambers and Special Chambers. As a practical tip, Justice Yungwirth suggested that the title of the Affidavit indicate its deadline category (e.g. "Reply Affidavit to Cross Application").

  • Filing deadlines now run from the date that Special Chambers is booked, although prior to the deadline you can seek a fiat to obtain an extension. Justice Yungwirth mentioned that the court would have to develop a fiat form relating to documents which don't yet exist (although I would think that for practical purposes you could bring a draft Order with you to court for now).

  • The Clerks have been directed to automatically strike applications from the list where the first deadline (Applicant's Application and Affidavits/Statements) isn't met. It was suggested that a letter or email could be sent to the clerks or coordinator, as applicable, to let them know you'd be relying on a previously-filed application or affidavit.

  • These deadlines won't apply to Disclosure Statements, except that your Confirming Letter may prominently request that your Disclosure Statement be made available to the hearing Justice.

  • Update Statements/Affidavits now need to be filed at least two weeks prior to the hearing, however it was suggested that the Coordinator should be notified if you're filing close to the deadline, so that it makes its way to the assigned Justice.
    It was suggested that if additional disclosure is obtained from the other side after your filing deadline, it could be attached to your update affidavit. Questioning transcripts could be attached to your update affidavit, or you could file the transcript of an adverse party being questioned,
    even if you're not required to file it.

  • If a cross-application is anticipated to extend the time required for the hearing, then within a week, the parties must either agree to a new date, agree to a separate date for the cross-application to be heard, or the Cross Applicant must otherwise seek leave of the Court to obtain a hearing date, failing which the Cross Application won't be heard.

  • Additional pages attached to Family Law Act statements are limited to 4 pages, excluding exhibits.

  • New rules address the filing deadlines, page limits, and Confirming Letters of proper third parties such as independent counsel, Child and Family Services, and MEP.

  • Paragraph 31 states that other affidavits in the same action can't be appended as exhibits to an affidavit, but keep in mind that relevant portions only can still be attached to your Confirming Letter.

  • Paragraph 32 prohibits exhibits which contain narrative, or are effectively used to extended affidavit page limits.

  • Paragraph 36 now prohibits the court from considering attached letters or other unsworn statements written by third parties. Justice Yungwirth commented that expert reports should be attached to their own affidavits sworn by the expert. Justice Yungwirth was also of the opinion that even doctors' letters and real estate valuations should be attached to their own affidavits sworn by the doctor/valuator, if possible. The expert's CV/Resume must also be attached. Justice Yungwirth also suggested that a fiat might need to be obtained to file these additional affidavits, unless you're submitting them pursuant to the expert rules contained in the Rules of Court (ie Form 25).

  • Confirming letters must now also identify any preliminary issues that must be addressed prior to the matter being heard.

  • Justice Yungwirth reminded lawyers to attach their Notice of Application and any Cross Applications to their Confirming Letters.

  • There is now a requirement that where there are claims for retroactive support, a concise summary or table of the calculations must be attached to the Confirming Letter.

  • Para 55 now explicitly recognizes that the deadlines and rules pertaining to Specials will apply to Case Management, unless the CMJ or CMC varies them.

  • Justice Yungwirth reminded lawyers again that reasonable notice must be provided to the opposing party prior to obtaining a fiat, the length of which is dependent upon the circumstances. If seeking leave in Case Management, speak to the CM Coordinator. Masters won't be able to grant these types of fiats, they'll only address our service issues.

  • Lawyers were reminded to identify which issues are proceeding to Specials when booking, as well as whether a counterclaim is anticipated (I've been trying to list this within any orders granted the date that Special Chambers is booked).

  • The list of notable cases at Appendix B has now been removed. Justice Yungwirth didn't think it would be necessary to start attaching them to Confirming Letters now, but she cautioned that doing so might be useful, as you never know if a newly-appointed judge will be hearing your matter.

  • The Special Chambers booking sheet will now require that you identify any conflicted judges (eg who previously conducted your JDR).


2 22 months ago - edited 22 months ago

Anonymous - (Alberta. Joined 2017)

Thank you, Ken. With respect to paragraph 36, I note the wording suggests some discretion for the adjudicator on whether or not they will consider letters from third parties? I am assuming in not using the language 'shall not/will not" but instead, 'may not', it is not an outright prohibition? Please do correct me if I am wrong.

1 21 months ago - edited 21 months ago

Ken Proudman - Barr Picard Law (Alberta. Joined 2017)

I think you're right, it looks like they've built in some judicial discretion. It sounds like they want to be able to disregard letters from friends and family members, but I couldn't see them taking a strict stance against all doctor's notes, especially if the doctor declines to sign an Affidavit (as I'm sure most would), and the client doesn't have the funds for an Independent Medical Examination.

0 21 months ago

Anonymous - (Alberta. Joined 2017)

Does anybody have an experience with obtaining fiats to extend deadlines under the new PN2?

We're setting Specials in November 2018, but we're required to file within 2 weeks of booking the hearing. In family law, a lot can happen in 7 months, and good luck trying to fit the updates into a 3 page Update Statement!

I wonder whether judges will grant the fiat if both counsel agree to extend the filing deadlines, to accommodate procedures such as Questioning, and put that agreement into a Consent Order.


0 20 months ago

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