Acts and Regulations

Rule-81 - FAMILY LAW RULE IN JUDICIAL DISTRICTS WITH A CASE MANAGEMENT MODEL

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Full text
Current to 1 January 2024
FAMILY LAW CASE MANAGEMENT MODEL
RULE 81
FAMILY LAW RULE IN JUDICIAL DISTRICTS
WITH A CASE MANAGEMENT MODEL
2018-35
81.01Application of Rule
(1)Subject to paragraph (2), this rule applies to
(a) all civil proceedings commenced in the Family Division of the Court of King’s Bench in any Judicial District that has established a case management model for those proceedings, and
(b) all proceedings commenced under the Divorce Act (Canada) in the Family Division of the Court of King’s Bench in any Judicial District that has established a case management model for those proceedings.
(2)This rule does not apply to the following proceedings:
(a) proceedings commenced under the following provisions of the Family Services Act:
(i) Part II, Community Placement Resources;
(ii) Part III, Protection Services; and
(iii) Repealed: 2023, c.36, s.21
(iv) Repealed: 2023, c.36, s.21
(v) Part VI, Parentage of Children;
(a.1) proceedings commenced under the following provisions of the Child and Youth Well-Being Act:
(i) Part 5, Protection Services; and
(ii) Part 6, Adoption; and
(b) proceedings commenced under the Supported Decision-Making and Representation Act.
(3)Despite subclause (2)(a)(v), this rule applies where an Application (Form 81A) includes a claim for a declaratory order under section 100 of the Family Services Act.
2018-35; 2022-86; 2023, c.36, s.21; 2023-67
81.02Application of Other Rules
Except where inconsistent with this rule, the other Rules of Court apply with the necessary modifications to a proceeding conducted under this rule.
81.03Variation of Procedure
The court may, by order, vary the procedure set out in this rule, including the procedure set out in any rule applicable under Rule 81.02.
81.04Definitions
In this rule,
administrator means an administrator appointed under subsection 68(2) of the Judicature Act;
Case Management Master means the Case Management Master appointed under section 56.1 of the Judicature Act;
change, when used to refer to an agreement or order, means to vary, rescind, discharge or suspend;
child support includes support for a child who has attained the age of majority and who is under the charge of their parents and unable to withdraw from their charge or to obtain the necessaries of life by reason of illness, disability, pursuit of reasonable education or any other cause;
child support guidelines means the Child Support Guidelines Regulation – Family Law Act or the Federal Child Support Guidelines – Divorce Act (Canada), as the case may be;
Child Support Guidelines Repealed: 2021-17
court means the Family Division of the Court of King’s Bench in a Judicial District with a case management model;
judge means a judge of the Family Division of the Court of King’s Bench in a Judicial District with a case management model;
support means one or more of the following:
(a) child support under the Family Law Act or the Divorce Act (Canada);
(b) spousal support under the Divorce Act (Canada); and
(c) support for a dependant who is not a child under the Family Law Act;
triage coordinator means an officer appointed under section 60.1 of the Judicature Act for the purposes of this rule.
2018-35; 2021-17; 2022-86
81.05Commencement of Proceeding
Application
(1)A proceeding is commenced under the Family Law Act for support or a parenting order when an applicant files with the administrator an Application (Form 81A) and a copy of the Application for every other party. An Application may include a claim under the Marital Property Act.
(1.1)A proceeding is commenced under the Family Law Act for a contact order when an applicant files with the administrator an Application for Contact Order (Form 81AA) and a copy of the Application for every other party.
(2)A proceeding is commenced under the Divorce Act (Canada) when an applicant files with the Registrar an Application (Form 81A) and a copy of the Application for every other party. An Application may include a claim under the Marital Property Act.
Application with Permission
(2.1)A person who is not a spouse but who is a parent of the child, or who stands in the place of a parent or intends to stand in the place of a parent, may apply for a parenting order under the Divorce Act (Canada), with the permission of the court, if the person files with the administrator a Notice of Preliminary Motion (Form 37B), an Application (Form 81A) and copies of those documents for every other party.
(2.2) A person may apply for a contact order under the Divorce Act (Canada), with the permission of the court, if the person files with the administrator a Notice of Preliminary Motion (Form 37B), an Application for Contact Order (Form 81AA) and copies of those documents for every other party.
(3)An Application may contain
(a) a claim against more than one person, and
(b) more than one claim against the same person.
Required Financial Information
(4)An Application that contains a claim for support or a parenting order, with or without a claim under the Marital Property Act, shall be accompanied by the applicable documents required under Rule 81.08.
Affidavit in Support of Claim for Parenting Order
(5)An Application that contains a claim for a parenting order shall be accompanied by an Affidavit in Support of Claim for Parenting Order (Form 81B) in addition to the applicable documents required under paragraph (4).
Affidavit in Support of Claim for Contact Order
(5.1)An Application for Contact Order shall be accompanied by a supporting affidavit.
Joinder of Parties
(6)Unless ordered otherwise, if an Application contains a claim for a parenting order or if an Application for Contact Order is made, each parent and each person who has parenting time or decision-making responsibility in respect of the child shall be made a party.
(7)A judge or the Case Management Master may order that any person who may have an interest in a proceeding commenced under this subrule be served with notice of the proceeding without adding the person as a party.
(8)A person against whom a respondent asserts a right or claim is a party to the proceeding.
Duties of Administrator and Registrar
(9)On receiving an Application under paragraph (1) or (2.1) or an Application for Contact Order under paragraph (1.1) or (2.2), as the case may be, the administrator shall
(a) assign a court file number to the proceeding,
(b) enface on the original and each copy
(i) the court file number, and
(ii) the date of filing,
(c) set a date and time for a meeting between the parties and the triage coordinator,
(d) return a copy of the Application or Application for Contact Order, as the case may be, and the accompanying documents to the applicant for service, together with notice of the date and time set for the meeting between the parties and the triage coordinator, and
(e) retain and file the original Application or Application for Contact Order, as the case may be, and the accompanying documents.
(10)On receiving the Application and copies under paragraph (2), the Registrar shall
(a) stamp the original and each copy with the date of filing,
(b) assign a Divorce Registry number to the Application,
(c) sign and seal the Application,
(d) obtain from the administrator in the Judicial District a court file number and a date and time for a meeting between the parties and the triage coordinator,
(e) return the original to the spouse who filed it or to that spouse’s solicitor,
(f) retain and file a copy, and
(g) provide a copy immediately to the administrator in the Judicial District.
Service of Application and Proof of Service
(11)At least 27 days before the date set for the meeting between the parties and the triage coordinator, the applicant shall serve the other parties with the Application or Application for Contact Order, as the case may be, any accompanying documents and notice of the date and time set for that meeting.
(12)At least 7 days before the date set for the meeting between the parties and the triage coordinator, the applicant shall file with the administrator proof of service of the documents under paragraph (11).
2018-35; 2021-17
81.06Response to Application and Reply
No Opposition to Application
(1)A respondent who does not oppose an Application or an Application for Contact Order, as the case may be, shall notify the administrator in writing that they do not oppose. The respondent shall also confirm their address in the notification.
Filing and Service of Answer
(2)A respondent who wishes to oppose an Application that contains a claim for support or a parenting order, or to assert a right or claim shall file with the administrator an Answer (Form 81C) and any accompanying documents within 20 days after being served with the Application.
(2.1)A respondent who wishes to oppose an Application for Contact Order shall file with the administrator an affidavit in opposition and any accompanying documents within 20 days after being served with the Application for Contact Order.
(3)Despite paragraphs (2) and (2.1), if an Application or an Application for Contact Order is served outside Canada, the time for filing an Answer or an affidavit in opposition, as the case may be, is 40 days.
(4)A respondent may include in an Answer
(a) a claim against the applicant, and
(b) a claim against any other person who then also becomes a respondent in the proceeding.
(5)Subject to paragraph (6), immediately on the filing of the Answer and any accompanying documents, the administrator shall cause a copy of them to be served on the applicant and every other party.
(6)If a respondent asserts a claim in the Answer against a person other than the applicant, the administrator shall return a copy of the Application, the Answer and any accompanying documents to the respondent who shall immediately serve them on the other person.
(6.1)Immediately on the filing of an affidavit in opposition to an Application for Contact Order and any accompanying documents, the administrator shall cause a copy of them to be served on the applicant and every other party.
Answer by Added Respondent
(7)Paragraphs (1) to (6) apply to a respondent added under clause (4)(b), except that the time for the added respondent to file an Answer is 20 days after the date the added respondent is served with the Answer under paragraph (6). If the added respondent is served outside Canada, the time for filing an Answer is 40 days after the date the added respondent is served with the Answer under paragraph (6).
Required Financial Information
(8)If an Answer is in response to an Application that contains a claim for support or a parenting order or if an Answer contains a claim for support or a parenting order, the Answer shall be accompanied by the applicable documents required under Rule 81.08.
Affidavit in Support of Claim for Parenting Order
(9)An Answer that contains a claim for a parenting order shall be accompanied by an Affidavit in Support of Claim for Parenting Order (Form 81B) in addition to any other documents required by this subrule.
No Answer or Answer Struck Out
(10)If a respondent does not file an Answer and accompanying documents in accordance with paragraph (2), (3) or (7), as the case may be, if a respondent does not serve an Answer and accompanying documents in accordance with paragraph (6) or if the Answer is struck out by an order,
(a) the respondent is not entitled to notice of any further step in the proceeding, but may be served with the order striking out the Answer,
(b) unless ordered otherwise, the respondent is not entitled to participate in the proceeding in any way,
(c) the judge or the Case Management Master may deal with the proceeding in the absence of the respondent, and
(d) the administrator may set a date and time for the hearing of an uncontested proceeding.
(10.1)If a respondent does not file an affidavit in opposition to an Application for Contact Order in accordance with paragraph (2.1),
(a) the judge or the Case Management Master may deal with the proceeding in the absence of the respondent, and
(b) the administrator may set a date and time for the hearing of an uncontested proceeding.
Reply
(11)Within 7 days after being served with an Answer, a party may, in response to a claim made in an Answer, file a Reply (Form 81D) with the administrator and serve a copy of it on every other party.
2021-17
81.07Amending an Application, Answer or Reply
Amending Application without Court’s Permission
(1)An applicant may amend his or her Application without the court’s permission as follows:
(a) if no Answer has been filed, by filing and serving an Amended Application in the manner set out in Rule 81.05 at least 7 days before the date set for the meeting between the parties and the triage coordinator; and
(b) if an Answer has been filed, by filing and serving an Amended Application in the manner set out in Rule 81.05 at least 7 days before the date set for the meeting between the parties and the triage coordinator and also filing the consent of all parties to the amendment in the same period of time.
Amending Application for Contact Order without Court’s Permission
(1.1)An applicant may amend an Application for Contact Order filed under Rule 81.05(1.1) without the court’s permission as follows: 
(a) if no affidavit in opposition has been filed, by filing and serving an Amended Application for Contact Order in the manner set out in Rule 81.05 at least 7 days before the date set for the meeting between the parties and the triage coordinator; and
(b) if an affidavit in opposition has been filed, by filing and serving an Amended Application for Contact Order in the manner set out in Rule 81.05 at least 7 days before the date set for the meeting between the parties and the triage coordinator and also filing the consent of all parties to the amendment in the same period of time.
Amending or Filing Answer or Affidavit in Opposition without Court’s Permission
(2)If the Application has been amended and the respondent has filed an Answer under Rule 81.06, the respondent may amend his or her Answer without the court’s permission by filing and serving an Amended Answer within 20 days after being served with the Amended Application.
(2.1)If an Application for Contact Order has been amended and the respondent has filed an affidavit in opposition under Rule 81.06, the respondent may amend the affidavit without the court’s permission by filing and serving an amended affidavit within 20 days after being served with the amended Application for Contact Order.
(3)If the Application has been amended and the respondent has not filed an Answer under Rule 81.06, the respondent may, without the court’s permission, file and serve an Answer in response to the Amended Application within 20 days after being served with the Amended Application.
(3.1)If an Application for Contact Order has been amended and the respondent has not filed an affidavit in opposition under Rule 81.06, the respondent may, without the court’s permission, file and serve an affidavit in opposition in response to the Amended Application for Contact Order within 20 days after being served with the Amended Application for Contact Order.
(4)If the Application has not been amended, a respondent may amend his or her Answer without the court’s permission by filing and serving an Amended Answer at least 7 days before the date set for the meeting between the parties and the triage coordinator and also filing the consent of all parties to the amendment in the same period of time.
(4.1)If an Application for Contact Order has not been amended, a respondent may amend their affidavit in opposition without the court’s permission by filing and serving an amended affidavit in opposition at least 7 days before the date set for the meeting between the parties and the triage coordinator and also filing the consent of all the parties to the amendment in the same period of time.
(5)If the Application or Application for Contact Order, as the case may be, has been amended, the triage coordinator shall set a new date and time for his or her meeting with the parties.
Amending Documents with Court’s Permission
(6)On motion, the court or the Case Management Master may make an order permitting a party to amend his or her Application, Application for Contact Order, Answer, affidavit in opposition or Reply, unless the amendment would disadvantage another party in a way for which costs or an adjournment could not compensate.
How Amendment Shown
(7)An amendment shall be clearly shown by underlining all changes.
2021-17
81.08Financial Statements and Income Information
Applicant’s Claim
(1)The following rules apply if an applicant claims child support or a parenting order: 
(a) the Application shall be accompanied by a Financial Statement (Form 72J) and any income information required by the child support guidelines;
(b) within 20 days after being served with the Application, the respondent shall file with the administrator a Financial Statement and any income information required by the child support guidelines, together with a copy of these documents for every other party; and
(c) where as a result of a claim made by the respondent the applicant’s income information is required by the child support guidelines, the applicant shall file with the administrator, at least 3 days before the date set for the meeting between the parties and the triage coordinator, a Financial Statement, if not previously filed, and such income information, together with a copy of these documents for every other party.
(2)The following apply if an applicant claims support for themselves or for a dependant who is not a child: 
(a) the Application shall be accompanied by a Financial Statement; and
(b) within 20 days after being served with the Application, the respondent shall file with the administrator a Financial Statement, together with a copy of it for every other party.
Respondent’s Claim
(3)The following apply if a respondent claims support or a parenting order: 
(a) the Answer shall be accompanied by a Financial Statement and any income information required by the child support guidelines, together with a copy of these documents for every other party; and
(b) not less than 3 days before the date of the hearing, the applicant shall file with the administrator
(i) a Financial Statement and a copy of it for every other party, and
(ii) if the respondent’s claim pertains to child support, the income information required by the child support guidelines, together with a copy of it for every other party.
Failure to Comply
(4)If a party fails to file a Financial Statement or the income information required under this subrule, a judge or the Case Management Master may on motion without notice, or on his or her own motion, order that it be filed within such time and on such terms as may be just.
(5)If a party fails to comply with paragraph (1), (2) or (3) or with an order under paragraph (4),
(a) a judge or the Case Management Master may dismiss the party’s claim,
(b) a judge may issue a contempt order against the party, and
(c) a judge may draw an inference against the party and impute income to the party in such amount as the judge considers appropriate.
Service
(6)The administrator shall immediately cause a copy of a Financial Statement and the income information required under this subrule to be served on each party.
Confidentiality
(7)Where public disclosure of information contained in a Financial Statement or the income information required under this subrule would probably create hardship, a judge or the Case Management Master may order that the Financial Statement or income information and any cross-examination on it be treated as confidential and not form part of the public record.
2021-17
81.09Triage Coordinator
(1)On or before the date set for a meeting between the parties and the triage coordinator, the triage coordinator shall
(a) confirm that all necessary documents have been filed and served,
(b) if an Answer has been filed in response to an Application or an affidavit in opposition has been filed in response to an Application for Contact Order, or if a Response to Motion to Change (Form 81H) has been filed under Rule 81.13(6), confirm that the proceeding is ready for a hearing, case conference, settlement conference or mediation and cause the hearing, conference or mediation to be scheduled accordingly,
(c) if no Answer has been filed in response to an Application or no affidavit in opposition has been filed in response to an Application for Contact Order, submit the file to a judge or the Case Management Master for a decision or directions or, on the request of the applicant, set a date and time for a case conference, and
(d) if no Response to Motion to Change has been filed under Rule 81.13(6), submit the file to a judge for a decision on the basis of affidavit evidence or, on the request of the party who made the motion, set a date and time for a case conference.
(2)If an Application or an Application for Contact Order, as the case may be, is not served on a respondent on or before the date set for a meeting between the parties and the triage coordinator, the triage coordinator shall set a new date and time for the meeting. The triage coordinator shall also make the necessary changes to the Application or Application for Contact Order and return it to the applicant, who shall serve it on the respondent immediately.
(3)Unless ordered otherwise, parties in the following proceedings are not required to attend a meeting with the triage coordinator:
(a) a proceeding commenced under the Divorce Act (Canada) that is considered on the basis of affidavit evidence,
(b) a motion to change on the consent of the parties under Rules 81.13(11) and (12), and
(c) a proceeding which a judge considers inappropriate for a meeting between the parties and the triage coordinator.
2021-17
81.10Case Conferences and Settlement Conferences
Purposes
(1)The purposes of a case conference include, but are not limited to, the following:
(a) exploring the chances of settling the case;
(b) identifying the issues that are in dispute and those that are not in dispute;
(c) exploring ways to resolve the issues that are in dispute, including referral to mediation;
(d) ensuring disclosure of the relevant evidence;
(e) noting admissions that may simplify the proceeding;
(f) setting the date and time for the next step in the proceeding;
(g) organizing a settlement conference;
(h) giving directions with respect to any intended motion, including setting a timetable for the exchange of documents for the motion;
(i) giving directions and setting a timetable for further case conferences, a settlement conference or a hearing; and
(j) dealing with interim claims for relief.
Conferences in Defended Proceedings
(2)If an Answer or an affidavit in opposition, as the case may be, is filed in a proceeding,
(a) a judge or the Case Management Master shall conduct at least one case conference, and
(b) a judge may conduct a settlement conference.
Conferences in Undefended Proceedings
(3)If no Answer or affidavit in opposition is filed in a proceeding, the triage coordinator shall, on request, schedule a case conference or cause a date and time to be set for the hearing of an uncontested proceeding.
Conference Notice
(4)After a case conference or a settlement conference is scheduled, the administrator shall serve a Conference Notice (Form 81E) on every party.
Memorandums and Consent Orders
(5)The judge who presides at a case conference or a settlement conference may
(a) make an order for disclosure of documents, set the dates and times for events in the proceeding or give directions for the next step or steps in the proceeding,
(b) make an interim or final order,
(c) make an unopposed order or an order on consent,
(d) refer any issue for mediation,
(e) present to the parties for their approval a memorandum or consent order of the matters agreed to and of the outstanding issues, and
(f) file the approved memorandum or consent with the administrator.
(6)The Case Management Master who presides at a case conference may, if appropriate to do so,
(a) make an order for disclosure of documents, set the dates and times for events in the proceeding or give directions for the next step or steps in the proceeding,
(b) make an interim order,
(c) refer any issue for mediation,
(d) present to the parties for their approval a memorandum or consent order of the matters agreed to and of the outstanding issues, and
(e) file the approved memorandum or consent with the administrator.
Limitation on Conference Judge
(7)A judge who presides at a case conference or a settlement conference shall not preside at the hearing without the consent of the parties.
Adjourned Case Conference
(8)If a case conference is adjourned because a party does not appear, is not prepared, has not made the required disclosure or has otherwise not followed this subrule, the judge or the Case Management Master may
(a) order the party to pay the costs of the case conference immediately,
(b) decide the amount of the costs, and
(c) give any directions that are required or make such order as may be required.
2021-17
81.11Hearing
Case Conference Required Before Hearing
(1)Unless ordered otherwise, no hearing shall be held unless a case conference is held first.
(2)Paragraph (1) does not apply if the court is of the opinion that there is a situation of urgency or hardship or that a case conference is not required for some other reason in the interest of justice.
Hearing Date
(3)During or after a case conference or a settlement conference, a party who is not in default under this rule may request a judge, the administrator or the Case Management Master to set a date and time for the hearing.
(4)If the request for a hearing is not made at a case conference or settlement conference, the party
(a) shall consult with every other party who is not in default under this rule as to the anticipated length of time required for the hearing, and
(b) shall make the request in writing and set out the anticipated length of time required for the hearing in the request.
(5)On the receipt of a request under paragraph (3) or (4), the administrator shall forward notice of the date and time of the hearing to every party who is not in default under this rule.
Affidavits
(6)The applicant shall file a concise affidavit in support of his or her claim at least 20 days before the date of the hearing or on such other date as the court may direct.
(7)The respondent shall file a concise affidavit in support of his or her position at least 20 days before the date of the hearing or on such other date as the court may direct.
Record
(8)At least 4 days before the date of the hearing, the party requesting the hearing shall file with the administrator a record that contains the following:
(a) an index;
(b) a copy of all documents served inter-parties;
(c) a copy of any Request to Admit Documents (Form 31D) and a copy of the response to it;
(d) a copy of any Request to Admit Facts (Form 51A) and a copy of the response to it;
(e) a copy of any Notice of Motion (Form 37A) to be made at the hearing; and
(f) a copy of any notice or order respecting the hearing and any order made during the case conference.
(9)The cover page of the record shall set out the following:
(a) the name of the solicitor for each party to the proceeding, the firm name, if applicable, his or her address for service, his or her e-mail address, if any, his or her business telephone number and his or her fax number, if any; and
(b) the names of any parties to the proceeding not represented by a solicitor, their addresses for service, their e-mail addresses, if any, and their telephone numbers, including their fax numbers, if any.
(10)The pages of the record shall be consecutively numbered commencing with the index.
Pre-Hearing Brief
(11)Unless ordered otherwise, each party to the proceeding shall prepare a pre-hearing brief that contains the following:
(a) a succinct outline of the facts that the party intends to establish;
(b) a concise statement of the issues to be dealt with by the court;
(c) a concise statement of the principles of law on which the party intends to rely and citation of relevant statutory provisions and leading authorities; and
(d) a concise statement of the relief sought by the party.
(12)At least 4 days before the date of the hearing, each party shall file the following with the administrator:
(a) the original copy of his or her pre-hearing brief which the administrator shall immediately transmit to the judge who is to preside at the hearing; and
(b) a copy of his or her pre-hearing brief for every other party.
(13)The administrator shall advise each party when another party files his or her pre-hearing brief and shall release to any party who has filed a pre-hearing brief, copies of the pre-hearing briefs filed by the other parties.
(14)Documentary evidence shall not be included with the pre-hearing brief unless all parties have consented to its admission as evidence.
Summons to Witness
(15)A party may serve a Summons to Witness (Form 55A).
Adjournments
(16)The court may adjourn a hearing indefinitely or to a definite date, time and place.
(17)Where the court has adjourned a hearing indefinitely, it shall, on motion by any party without notice, set a date and time for resumption of the hearing.
(18)The administrator shall cause every other party to be served with any order setting the date and time for resumption of a hearing.
2012-86
81.12Motions for Interim Orders
When to Make a Motion
(1)A person may make a motion for any of the following:
(a) an interim order for a claim made in an Application or in an Application for Contact Order, as the case may be, that has not been disposed of at a case conference;
(b) directions on how to carry on the proceeding; and
(c) a change in an interim order.
Who May Make a Motion
(2)A motion may be made by a party to the proceeding or by a person with an interest in the proceeding.
No Motion before Case Conference Completed on Substantive Issues
(3)Unless ordered otherwise, no Notice of Motion (Form 37A) or supporting evidence may be served and no motion may be heard before a case conference dealing with the substantive issues in the proceeding has been completed.
(4)Paragraph (3) does not apply if a judge is of the opinion that there is a situation of urgency or hardship or that a case conference is not required for some other reason in the interest of justice, including when there is a risk of family violence.
Motion Involving Complicated Matters
(5)If a motion involves complicated matters, a judge may
(a) order that the motion or any part of it be heard under Rule 81.11, and
(b) give any directions that are necessary.
Documents for a Motion
(6)A motion, whether made with or without notice,
(a) requires a Notice of Motion (Form 37A) and an affidavit, and
(b) may be supported by additional evidence.
Motion with Notice
(7)At least 10 days before the hearing of the motion, a party making a motion with notice shall serve the documents referred to in paragraph (6) on every other party.
Motion without Notice
(8)A motion may be made without notice if
(a) the nature or circumstances of the motion make notice unnecessary or not reasonably possible,
(b) there is a danger of a child’s removal from New Brunswick and the delay involved in serving a Notice of Motion would probably have serious consequences,
(c) there is a risk of family violence or a danger to the health or safety of a child or of the party making the motion and the delay involved in serving a Notice of Motion would probably have serious consequences, or
(d) service of a Notice of Motion would probably have serious consequences.
(9)Unless a judge or the Case Management Master orders otherwise, the documents for use on a motion without notice shall be filed on or before the date for the hearing of the motion.
(10)An order made on motion without notice shall require the matter to come back to a judge or the Case Management Master within 14 days or on a date chosen by a judge or the Case Management Master.
(11)Unless the judge or the Case Management Master orders otherwise, an order made on motion without notice shall be served immediately on all parties affected, together with all documents used on the motion.
Evidence on a Motion
(12)The following evidence may be given on a motion:
(a) an affidavit;
(b) with the permission of the judge or the Case Management Master, oral evidence; and
(c) any other evidence which the judge or the Case Management Master considers just and appropriate.
(13)Unless the judge or the Case Management Master orders otherwise, a copy of any evidence, other than oral evidence, to be used by a party on a motion shall be served by that party on every other party.
Affidavit Based on Personal Knowledge
(14)An affidavit for use on a motion shall, as much as possible, contain only information within the personal knowledge of the person signing the affidavit.
Affidavit Based on Other Information
(15)An affidavit may also contain information that the person learned from someone else, but only in the following circumstances:
(a) the source of the information is identified by name and the affidavit states that the person signing it believes the information is true; and
(b) if the motion is a contempt motion, the information is not likely to be disputed.
Record
(16)At least 48 hours before the hearing of a motion, the party giving notice of the motion shall file with the administrator a record for use of the court consisting of the following:
(a) an index;
(b) a copy of the Notice of Motion; and
(c) a copy of all affidavits, including those of every other party, and other documents to be used on the hearing.
(17)The pages of the record shall be consecutively numbered commencing with the index.
Abuse of Process
(18)If a party tries to delay the proceeding or add to its costs or in any other way to abuse the court’s process by making numerous motions without merit, the judge may order the party not to make any other motions without the judge’s prior permission.
Motion to Strike out Document
(19)The judge may strike out all or part of any document at any time, with or without leave to amend, upon such terms as may be just, on the ground that it
(a) may prejudice, embarrass or delay the fair hearing of the motion,
(b) is scandalous, frivolous or vexatious, or
(c) is an abuse of the process of the court.
Failure to Obey Order Made on Motion
(20)A judge may refuse to hear a party’s motion if that party has not complied with previous orders. The judge may
(a) dismiss that party’s claim or strike out any other document filed by that party,
(b) postpone the hearing or any other step in the proceeding, and
(c) make any other order, including an order for costs.
(21)The Case Management Master may refuse to hear a party’s motion if that party has not complied with previous orders. The Case Management Master may
(a) postpone the hearing or any other step in the proceeding, and
(b) make any other order that is appropriate, including an order for costs.
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81.13Motions to Change an Agreement or Order
2021-17
Application of Subrule
(1)This subrule applies to a motion to change
(a) an agreement filed under section 79 of the Family Law Act,
(b) a final order under the Divorce Act (Canada), or
(c) a final order under the Family Law Act.
No Motion before Case Conference Completed on Substantive Issues
(2)Unless ordered otherwise, no motion to change may be heard before a case conference dealing with the substantive issues in the proceeding has been completed.
(3)Paragraph (2) does not apply if a judge is of the opinion that there is a situation of urgency or hardship or that a case conference is not required for some other reason in the interest of justice, including when there is a risk of family violence.
Motion to Change
(4)Subject to paragraphs (11) and (12), a party who wishes to request the court to change an agreement or order shall file and serve the following:
(a) a Motion to Change (Form 81F); and
(b) a Change Information Form (Form 81G) with all the required attachments.
Service to Include Blank Forms
(5)The party making the motion shall serve on the other party a blank Response to Motion to Change (Form 81H) and a blank Consent Motion to Change (Form 81I), together with the documents referred to in paragraph (4).
Response or Consent to Motion
(6)The following rules apply to a party who is served with a Motion to Change an agreement or order:
(a) if the party does not agree to the change, the party shall file with the administrator and serve on the party making the motion a Response to Motion to Change (Form 81H), with all the required attachments, within the time set out in clause (7)(a) or (b), as the case may be; and
(b) if the party agrees to the change, the party shall complete the applicable portions of the Consent Motion to Change (Form 81I) and shall, within the time set out in clause (7)(a) or (b), as the case may be, return a signed copy of the Consent Motion to Change to the party making the motion.
(7)The documents referred to in clauses (6)(a) and (b) shall be filed and served or returned
(a) no later than 20 days after the party responding to the motion receives the Motion to Change and the supporting documents, or
(b) no later than 40 days after the party responding to the motion receives the Motion to Change and the supporting documents if that party resides outside Canada.
No Response or Consent or Response Struck Out
(8)If a party does not file and serve a Response to Motion to Change or return a Consent Motion to Change to the party making the motion as required under paragraph (6) or if the party’s Response to Motion to Change is struck out by an order,
(a) the party is not entitled to notice of any further step in the proceeding, but may be served with the order striking out the Response to Motion to Change,
(b) the party is not entitled to participate in the proceeding in any way, and
(c) the judge may deal with the proceeding in the party’s absence.
(9)If paragraph (8) applies, the party making the motion to change may request the court to make the order requested in the documents filed by the party.
Consent to Motion
(10)If a party returns to the party making the motion a Consent Motion to Change in accordance with clause (6)(b), the party making the motion shall complete the Consent Motion to Change and file it with the administrator, together with a written request asking the court to make the order described in the Consent Motion to Change.
Motion to Change on Consent
(11)Subject to paragraph (12), if the parties to an agreement or order wish to request the court to change the agreement or order, the parties shall file the following with the administrator:
(a) a Change Information Form with all the required attachments;
(b) a Consent Motion to Change; and
(c) a written request asking the court to make the order described in the Consent Motion to Change.
Motion to Change on Consent - Child Support Only
(12)If the parties to an agreement or order wish to request the court to change the agreement or order in relation only to a child support obligation, the parties shall file with the administrator a Consent Motion to Change Child Support (Form 81J) with all the required attachments.
Consent after Response Filed
(13)At any time after a party has filed and served a Response to Motion to Change under clause (6)(a) and before the motion to change is heard, the parties may proceed on consent by filing the following with the administrator:
(a) a Consent Motion to Change; and
(b) a written request asking the court to make the order described in the Consent Motion to Change.
Agreement or Order to be Attached
(14)A copy of any agreement or order that deals with parenting time, decision-making responsibility, contact or support and is currently in effect shall be attached to every Change Information Form or Consent Motion to Change Child Support.
Change Not in Accordance with Child Support Guidelines
(15)If a party requests an amount of child support that is not in accordance with the child support guidelines, each party shall file with the administrator and serve the evidence required by the guidelines, or the evidence that is otherwise necessary to satisfy the court that it should make the order requested.
Powers of Court - Motion on Consent or Unopposed
(16)If a motion to change an agreement or order proceeds on the consent of the parties or is unopposed, the administrator shall submit the filed documents to the court and the court may
(a) make the order requested,
(b) require one or both of the parties to file further documents, or
(c) require one or both of the parties to attend before the court.
Powers of Court - Directions
(17)If the court is of the opinion that a motion, whether proceeding on consent or not, cannot be properly dealt with because of the documents filed, because of the matters in dispute or for any other reason, the court may give directions, including directions for a hearing.
Powers of Court - Rule 81.12
(18)Rules 81.12(18), (19) and (20) apply with the necessary modifications to a motion to change an agreement or order.
Motion under Rule 81.12
(19)A motion under Rule 81.12 may be made on a motion to change an agreement or order.
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81.13.1Motion on Change in Place of Residence or Relocation
2021-17
Motion made without notice
(1)For the purpose of subsection 59(4) or 60(6) of the Family Law Act or subsection 16.8(3) or 16.9(3) of the Divorce Act (Canada), a person who has parenting time or decision-making responsibility in respect of a child and who intends to change their place of residence or to undertake a relocation, as the case may be, may make a motion without notice seeking an order for
(a) an exemption from the requirement to give notice of a change in place of residence or of a relocation, or
(b) a modification to the requirement to give notice of a change in place of residence or of a relocation.
(2)For the purpose of subsection 66(3) of the Family Law Act or subsection 16.96(3) of the Divorce Act (Canada), a person who has contact with a child under a contact order and who intends to change their place of residence may make a motion without notice seeking an order for 
(a) an exemption from the requirement to give notice of a change in place of residence, or
(b) a modification to the requirement to give notice of a change in place of residence.
(3)A motion under paragraph (1) or (2) shall be made by Notice of Motion (Form 37A) accompanied by a supporting affidavit.
(4)The person giving notice shall file the Notice of Motion and the affidavit with the administrator in the Judicial District where the person habitually resides.
Motion Authorising or Prohibiting a Relocation
(5)A person who has parenting time or decision-making responsibility in respect of a child who objects to a relocation may state their objection in 
(a) a motion to change a parenting order, or
(b) an application for a parenting order.
(6)A person who has parenting time or decision-making responsibility in respect of a child who receives a notice of objection to relocation under clause 16.91(1)(b)(i)(A) of the Divorce Act (Canada) may request authorization to undertake the relocation in
(a) a motion to change a parenting order, or
(b) an application for a parenting order.
(7)A motion under clause (5)(a) shall be made,  
(a) in the case of an interim parenting order, by filing a Notice of Motion (Form 37A) in accordance with Rule 81.12, accompanied by a copy of the notice of relocation, or
(b) in the case of a final parenting order, by filing a Motion to Change (Form 81F) in accordance with Rule 81.13, accompanied by a copy of the notice of relocation.
(8)An application under clause (5)(b) shall be made by filing an Application (Form 81A) in accordance with Rule 81.05, accompanied by a copy of the notice of relocation. 
(9)A motion under clause (6)(a) shall be made,
(a) in the case of an interim parenting order, by filing a Notice of Motion (Form 37A) in accordance with Rule 81.12, accompanied by a copy of the notice of relocation and the notice of objection to relocation, or
(b) in the case of a final parenting order, by filing a Motion to Change (Form 81F) in accordance with Rule 81.13, accompanied by a copy of the notice of relocation and the notice of objection to relocation.
(10)An application under clause (6)(b) shall be made by filing an Application (Form 81A) in accordance with Rule 81.05, accompanied by a copy of the notice of relocation and the notice of objection to relocation. 
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81.13.2Inter-jurisdictional Proceedings under the Divorce Act
2021-17
(1)The following definitions apply in this subrule.
designated authority means a person or entity designated by a province to exercise the powers or perform the duties and functions set out in sections 18.1 to 19.1 of the Divorce Act (Canada).
designated jurisdiction means a jurisdiction outside Canada that is designated as a reciprocating jurisdiction by regulation under the Interjurisdictional Support Orders Act.
responsible authority means a person or entity in a designated jurisdiction that performs functions that are similar to those functions performed by a designated authority.
Applications by Applicants Resident in New Brunswick
(2)An inter-jurisdictional proceeding is commenced under the Divorce Act (Canada) when an applicant who is habitually resident in New Brunswick files with the administrator of the Judicial District in which the applicant habitually resides an application for a support order or an application for the variation of a support order in the form required by the designated authority for New Brunswick.
(3)On receiving an application under paragraph (2), the administrator shall review the application and ensure it is complete and then forward it and any accompanying documents to the office of the Registrar.
(4)On receiving an application under paragraph (3), the Registrar shall forward the application and any accompanying documents to the designated authority for the province in which the applicant believes the respondent is habitually resident or to the responsible authority in the designated jurisdiction in which the applicant believes the respondent is habitually resident, as the case may be.
Applications by Applicants Resident outside New Brunswick
(5) On receiving an inter-jurisdictional application for a support order or for the variation of a support order under the Divorce Act (Canada) from an applicant who is habitually resident outside New Brunswick, the Registrar shall forward the application and accompanying documents to the administrator of the Judicial District in which the respondent habitually resides.
(6)On receiving an application under paragraph (5), the administrator shall serve a copy of the application and of any accompanying documents on the respondent in the manner provided for in Rule 18 for service of originating process, together with a notice setting out the manner in which the respondent shall respond to the application, including the place and time the respondent is required to appear as well as any documents or other information required to be provided. 
(7)A respondent served under paragraph (6) who wishes to oppose the application or who wishes to assert a right or a claim shall file a response in the form required by the designated authority for New Brunswick within 20 days after being served with the application.
Requests for Documents or Other Information
(8)On receiving a request for further evidence from a designated authority or a responsible authority under subsection 18.1(13) or 19(11) of the Divorce Act (Canada), the Registrar shall communicate the request to the applicant, who is required to provide the information in an affidavit within the time set out by the designated authority or responsible authority, as the case may be, or, if no time has been specified, within twelve months after receiving the request.
Conversions of Motions to Vary Support Orders to Inter-jurisdictional Applications
(9) If an applicant serves a Motion to Change (Form 81F) that seeks to vary a support order under the Divorce Act (Canada) on a respondent who habitually resides in another province or territory of Canada, the respondent may, within 40 days after being served, send to the administrator in the Judicial District where the Motion to Change was filed a request that the Motion to Change be converted into an application for the variation of a support order under paragraph (2).
(10)Subject to subsection 18.2(3) of the Divorce Act (Canada), on receiving a request under paragraph (9), the administrator shall consider the Motion to Change to be an application for the variation of a support order under paragraph (2), and shall review it and ensure it is complete and then forward it and any accompanying documents to the office of the Registrar.
(11)Paragraphs (4) and (8) of this subrule apply with the necessary modifications to a Motion to Change that is converted under paragraph (10) to an application for the variation of a support order.
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81.14Transfer of Proceedings
(1)Where a transfer of a proceeding is ordered under subsection 11.2(3), (4) or (5) of the Judicature Act, the judge shall give directions for the transfer and may order costs.
(2)A transfer shall not be ordered under subsection 11.2(5) of the Judicature Act without the consent of a judge.
81.15Filing of Support Agreements
2021-17
(1)An agreement filed under section 79 of the Family Law Act shall
(a) be in writing,
(b) be signed by the persons to be bound,
(c) be witnessed,
(d) state the name of the person to whom payment is to be made,
(e) set out the payment due under the agreement, and
(f) state when and how payments are to be made.
(2)An agreement may be filed with the court under section 79 of the Family Law Act by filing the original or a duplicate original with the administrator.
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81.16Examination of Person-Named
In a proceeding commenced under the Divorce Act (Canada), a person-named may also be examined for discovery.
81.17Certificate of Divorce
A Certificate of Divorce referred to in subsection 12(7) of the Divorce Act (Canada) shall be in Form 72O.
81.18Proof of Facts by Affidavit
Rules 72.18(6), (8), (9), (10), (12) and (13) apply with the necessary modifications to a proceeding commenced under the Divorce Act (Canada) that is considered on the basis of affidavit evidence.
81.19Registration of Orders or Decisions made elsewhere in Canada
2021-17
(1)If an order has been made by another court in Canada under section 15.1, 15.2, 16.1, 16.5, 17 or 19 of the Divorce Act (Canada) or a decision has been made by a provincial child support service in Canada under section 25.01 or 25.1 of that Act, registration of the order or decision under section 20 of that Act may be effected by filing a certified copy accompanied by the fee prescribed under Rule 81.20 in the office of the Registrar.
(2)The certified copy may be filed by sending it to the Registrar by ordinary mail with a written request that it be registered.
2021-17
81.19.1Recognition of Decisions made outside Canada
2021-17
(1)The following definitions apply in this subrule.
competent authority means a tribunal or other entity in a jurisdiction outside Canada that has the authority to make a decision under the jurisdiction’s law respecting any subject matter that could be dealt with under the Divorce Act (Canada).
designated jurisdiction means a jurisdiction outside Canada that is designated as a reciprocating jurisdiction by regulation under the Interjurisdictional Support Orders Act.
Registration or Recognition of Decisions
(2)A decision of a designated jurisdiction may be registered under section 19.1 of the Divorce Act (Canada) and a decision made by a competent authority may be recognized under section 22.1 of that Act by filing a certified copy of the decision accompanied by the fee prescribed under Rule 81.20 in the office of the Registrar.
(3)On receiving a decision for filing under paragraph (2), the Registrar shall forward a copy to the administrator in the Judicial District in which the respondent habitually resides.
(4)On receiving a decision under paragraph (3), an administrator shall
(a) register it as an order of the court and send notice of the registration by registered mail to all parties who are habitually resident in New Brunswick, and
(b) file it in accordance with paragraph 5(1)(b) of the Support Enforcement Act, in the case of a decision registered under section 19.1 of the Divorce Act (Canada).
Setting Aside Decisions
(5)A party who wishes to set aside the registration of a decision may file a Notice of Motion (Form 37A) and a supporting affidavit within 30 days after receiving notice under clause (4)(a).
(6)If a Notice of Motion to set aside a registration is filed under paragraph (5), the court may
(a) confirm the registration, or
(b) set aside the registration, if the court determines that
(i) a party did not have proper notice of the proceeding or was not afforded a reasonable opportunity to be heard in the proceeding outside Canada in which the decision was made,
(ii) the decision is contrary to public policy in New Brunswick, or
(iii) the designated jurisdiction or competent authority, as the case may be, did not have jurisdiction to make the decision.
(7)The administrator in the Judicial District in which a decision is made under paragraph (6) shall forward a copy to the parties and to the Registrar by registered mail.
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81.20Fees
(1)A party to a proceeding commenced under the Divorce Act (Canada) shall pay the following fees to the Registrar:
(a) on filing an Application, a fee of $100.00; and
(b) on filing an Answer, a fee of $20.00.
(2)The Registrar shall waive payment of a fee under paragraph (1) if
(a) the solicitor for the party certifies that remuneration for legal services in the proceeding has not been and will not be paid and payment of the fee would impose financial hardship,
(b) the solicitor for the party files a Certificate of Solicitor (Form 81K) with the Registrar at the same time as the Application or Answer is filed, or
(c) the party is a recipient of assistance under the Family Income Security Act.
(3)If the Registrar waives payment of a fee under paragraph (2), the administrator shall waive payment of a fee under Rule 78.01(e), (f), (g), (h), (i), (j) or (k).
(4)A party filing an order or a decision under Rule 81.19 or a decision under Rule 81.19.1 shall pay a fee of $5.00 to the Registrar.
(5)A person to whom a Certificate of Divorce is issued shall pay a fee of $7.00 to the Registrar.
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81.21When Fees Not Payable
A party is not required to pay fees to the administrator or a sheriff if the party is a recipient of assistance under the Family Income Security Act or his or her legal services in a proceeding under this rule are paid for under a legal aid program.
81.22Appeal of Case Management Master’s Order or Decision
(1)Where a party seeks to appeal from an order or decision of the Case Management Master, leave to appeal must be obtained by motion to a judge.
(2)A Notice of Motion for Leave to Appeal (Form 81L) shall be served within 15 days after the date of the order or decision sought to be appealed or within such further time as is allowed by the judge hearing the motion for leave.
(3)The record on the motion shall consist of
(a) an index,
(b) a copy of the Notice of Motion for Leave to Appeal,
(c) a copy of the order or decision sought to be appealed, and
(d) a copy of any affidavits or other evidence relevant to the appeal.
(4)The pages of the record shall be consecutively numbered commencing with the index.
(5)In considering whether or not to grant leave to appeal, the judge hearing the motion may consider the following:
(a) whether there is a conflicting decision by any judge or court upon a question involved in the proposed appeal;
(b) whether he or she doubts the correctness of the order or decision in question; or
(c) whether he or she considers that the proposed appeal involves matters of sufficient importance.
(6)A judge granting leave to appeal may
(a) impose such terms as may be just, and
(b) give directions to expedite the hearing of the appeal.
(7)Subject to any directions given under paragraph (6), Rule 81.12 applies to an appeal where leave to appeal has been granted.
2018-35
Rule: 2010-135