SUPERIOR COURT OF QUÉBEC

Transcription

1 SUPERIOR COURT OF QUÉBEC CONSOLIDATED NOTICES TO MEMBERS OF THE BAR MOTIONS IN FAMILY PRACTICE DIVISION 1. Motion Presentation in Practice Division 1.1 In order to ease the task of Court personnel and to avoid errors in the data capture of the proceedings, returns and proofs of service by fax or by bailiff must be inserted immediately before the court backing ( endos ). Delay for Filing Motions to be Fixed on the Roll of the Practice Court 1.2 Also, in order to ease the task of the Court personnel, the following rules governing the filing of motions to be fixed on the practice rolls in family matters must be respected: The only motions which may be placed on the roll are those for which the original documents (the motion, the notice of presentation, the notice to the defendant and the proof of service)have been filed into Court at least one clear day before the presentation date; Motions not filed within the prescribed delay may be added to the practice roll only when authorized by the Special Clerk or by the judge sitting in practice division. 1.3 All motions in the Family Practice Division requiring more than two hours may only be placed on the roll once the parties have completed the «Joint Declaration» form provided by the Office of the clerk. Family practice Joint declaration Form 1.4 All motions in family matters are presented before the Special Clerk. The cases are called at 9 a.m., in room Once the Roll has been called, cases declared ready for the filing of consent orders, for setting of dates or for obtaining interim orders with dates in Room 2.01, are immediately dealt with in the order in which they appear on the Roll. 1.6 Once these cases have been dealt with, cases suspended at the calling of the Roll are heard as soon as the lawyers declare that they are ready to proceed with their motions (whether they concern consent orders, the setting of dates, obtaining interim orders or a procedure by default). 1.7 The Special Clerk leaves Room 2.17 after having called on the lawyers who are still outside the room. Suspended cases at the calling of the Roll or for which no messages have been left with the Master of the Rolls shall be continued sine die. 1.8 Besides dealing with matters within his or her jurisdiction, as set out in the Code of Civil Procedure, the Special Clerk can specify the measures needed to render a file ready for hearing and set the necessary timetables. The Special Clerk shall set the date for a hearing in Room 2.01 only after having ascertained that these measures and deadlines have been respected. 1.9 The Special Clerk shall immediately refer all motions by default and applications for interim orders

2 to Room Applications for a Postponement 2.1 No motion will be postponed for a period of less than two weeks, unless the Special Clerk or the Court authorizes otherwise. 2.2 The Special Clerk may authorize up to three postponement applications by consent without explanation. 2.3 The Special Clerk may authorize an additional postponement in the following cases : To file a consent agreement, which is to be entered into the Minutes; When a litigant is self-represented and Counsel for the opposing party has trouble obtaining the necessary forms and documents; When it is more appropriate to wait for the Youth Tribunal s decision in a case involving the same parties appearing before the Superior Court. 2.4 Similarly, the parties can also obtain a postponement by telephone starting from 2:30 p.m. the day before the motion is to be heard until 11 a.m. on the day of the hearing. They can also obtain such a postponement by visiting the Master of the Rolls office. 2.5 For a postponement request other than one provided pursuant to par. 2.2 above, the Special Clerk verifies whether the required mediator s report has been filed in the Court record: If the report has not been produced, the motion is continued sine die, unless an agreement has been reached between the parties; If the report has been produced, the Clerk asks the parties to explain why the case is not proceeding and establishes the future conduct of the proceedings. 2.6 A fourth or even a fifth postponement request is automatically referred to the judge presiding room Application by Consent for a Safeguard Order 3.1 If the mediator's report has not been filed, the Special Clerk shall homologate the application by consent for a maximum period of thirty (30) days and adjourn the Motion for Provisional Measures to such date. Any extension request must be authorized by the Judge presiding Room If the mediator's report has been filed, the Special Clerk shall homologate the application by consent according to its terms. 3.3 Safeguard orders issued on an urgent basis must remain in force for a minimum of thirty days, unless otherwise authorized by the Court. This measure is implemented in order to ease the pressure on Room 2.11, to eliminate applications for safeguard orders that are not urgent, to speed up hearings, to facilitate the management of Court personnel and to reduce the handling of files. 3.4 As well, the following provisions apply to all safeguard order requests: Except in exceptional circumstances, ten days must have passed since the service of the introductory motion (813.9 C.C.P.); All affidavits must be divided into two sections:

3 1. The facts relating to the urgency of the motion to be set out in a maximum of two pages divided into paragraphs, each referring to only one fact; 2. The facts relating to the merits of the requested order; N.B.: Urgency is an essential element in granting safeguard orders since the latter are a form of interim injunction and thus follow the same rules All affidavits filed, either by the plaintiff or the defence, must have been communicated before the hearing day. A maximum of 3 affidavits may be filed, as provided by article C.C.P., regardless of the number of motions to be heard. 4. Calling of the Roll in Room The calling of cases shall begin at 9 a.m. 4.2 Any application to postpone a case fixed in Room 2.01 is made to the presiding Judge. The latter reviews the application, taking into account the provisions of Rule 27 of the Rules of Practice of the Superior Court Civil Matters, which provide that any proceeding having already been adjourned twice may be struck from the roll. If the Judge grants the postponement, the motion shall be referred to the Special Clerk who sets a new hearing date according to the Judge's instructions. 5. Family Practice Case Management 5.1 This room is exclusively dedicated to the case management of family law files that are referred by the judges sitting in Rooms 2.11 (interim orders) and 2.01, as well as by the Special Clerk in Room 2.17, or in which a case management notice has been served. 5.2 Hearings are held Monday to Friday starting at 9:15 a.m. in Room 2.12 of the Montreal Courthouse. 5.3 The following family law matters are referred to the judge sitting in Room 2.12 : Applications for safeguard orders and renewals of safeguard orders that are referred to Room 2.12 by the judge who is sitting in Room 2.11; Pre-trial conferences referred at the request of a Special Clerk or a judge; such conferences will be set on Wednesdays, starting at 2:15 pm; Applications for the issuance of a special rule to appear to answer a charge of contempt of court, as well as the appearance on such a rule to receive the plea and set a date on the merits; Applications for postponement of cases already scheduled in Room 2.01 or on the merits in Room 15.07, provided that such requests are presented prior to the date scheduled for hearing; such applications may be set any day, starting at 9:00 am with a notice of presentation directly to Room 2.12; Various procedural applications presented and emanating from Room 2.17, such as: Applications for a fourth or additional postponement; Applications for the filing of documents; Motions for the appointment of an attorney for a child; Motions to quash a subpoena; Refusals by the special clerk to place a matter on the roll; Determination of the timetables for the conduct of proceedings; Motions to dismiss, either for immediate hearing when appropriate, or in order to set a hearing date in Room 2.01;

4 Motions in revocation of judgments (reception stage); Case management notices; Motions to extend the delay to inscribe the case; Applications for special case management of a file; Motions to cancel a seizure before judgment. 5.4 If a file is referred to Room 2.12 and it appears that: there is no special urgency requiring immediate action, and the hearing will take longer than one hour, but will not exceed two hours the judge may schedule the case in Room 2.12 on a Monday or Tuesday afternoon at 2 pm at the earliest available date. 5.5 Attorneys may transfer their file from Room 2.17 to Room 2.12 or Room 2.11 without waiting for the calling of the roll in 2.17, by making a request to that effect to the court clerk in Room 2.17 between 8:45 and 9:00 am, as long as: the title of their proceeding corresponds to one of the subjects listed in paragraphs 4 or 5 above in the case of a transfer to Room 2.12, and attorneys are present and ready to proceed immediately, in all cases. After 9:00 am, the transfer of a file from Room 2.17 to Room 2.12 or Room 2.11 may only be done by the special clerk, in the order in which the file appears on the roll. 6. Uncontested Motions to Extend the Delay for Inscription by Conference Call 6.1 Uncontested Motions to Extend the Delay for Inscription may be presented by means of a conference call. 6.2 These motions are heard on Tuesdays from 2:15 p.m. to 4:30 p.m., at ten minute intervals. As such, up to nine time slots will be available each afternoon. 6.3 The presiding judge sits in Room 2.12 with a court clerk, who prepares the hearing minutes. The digital recording system also records the proceedings. 6.4 To proceed by conference call, attorneys must take the following steps: Call to schedule a hearing date and time and to receive an eight-digit conference identification number; Annex a Notice of Presentation to the Motion to Extend the Delay indicating the following information: the conference call telephone number ( ) and the eight (8) digit conference identification number provided by the Court; Annex a Notice of Presentation to the Motion to Extend the Delay indicating the following information: the conference call telephone number ( ) and the eight (8) digit conference identification number provided by the Court; File the Motion and annexed documents, along with proof of service, at the office of the Court (Room 1.156) at least two (2) clear days before the scheduled hearing date; On the hearing day, approximately ten (10) minutes before the scheduled time, the attorneys must call and choose option #1 (Participer à une téléconférence) and then enter the eight-digit conference identification number. While waiting for the judge to join the call, the attorneys will be able to speak to one another;

5 7. When the judge is ready to hear the case, he will join the conference call. Note that it will not be possible for the Court to inform the waiting attorneys of any unexpected delay to the start of the hearing. 8. At the beginning of the hearing, the Court Clerk will invite the attorneys to identify themselves in the same order as their clients names appear on the Motion to Institute Proceeding. 9. Afterwards, the attorneys will make their representations in the usual order, or according to the presiding judge's instruction. 10. The attorneys should state their names each time they intervene in order to identify the person speaking. 11. The call may be suspended when the judge requires the presence of all attorneys and one of the attorneys is absent from the call. The attorney who is present will then be invited to contact the absent attorney asking him to join the conference call. 12. The court clerk will suspend the case and may call the next case at the judge s request. Once that case is complete, the clerk will return to the suspended case. Should the missing attorney still be unavailable, the judge will issue the orders he deems appropriate.