The Dilemma of Practice Directions – good intentions, but?

In 2013-2014, the Ontario Superior Court of Justice initiated a review and consolidation of all its regional and provincial Practice Directions.  The primary objective was the elimination of obsolete and redundant directives, with a focus on consolidating, simplifying, and better organizing the practice directions that were to remain in effect. The consolidated Practice Directions for the Superior Court of Justice came into effect on July 1, 2014.

In family law, the provincial Practice Direction for family proceedings underwent another update on June 15, 2023. Each of the eight regions under the Ontario Superior Court of Justice has undertaken multiple updates or amendments to their respective regional Practice Directions for family proceedings since July 2014. These adjustments aim to align with the changes to the Family Law Rules and adapt to the unique circumstances of each region.

The intended benefits derived from Practice Directions are noteworthy. Offering clear instructions on document filing, the presumptive mode of appearance for court appearances  and other procedural matters, Practice Directions provide  a roadmap for litigants navigating the legal system, contributing significantly to access to justice. Well-crafted Practice Directions make the court process more accessible and comprehensible, particularly for self-represented litigants . They allow for better case management and ensure that the court’s resources are utilized efficiently. Additionally, Practice Directions play a vital role in bolstering public confidence in the legal system, which foster trust when individuals perceive the legal process as transparent, fair, and efficiently managed.

However, despite their evident merits, the implementation of Practice Directions encounters substantial resistance in practice. As Justice Tranquilli commented in Campbell v Campbell, 2023 ONSC 1231 at paragraph 17, the court is “vexed by the disregard to the court’s Practice Directions that is seen in far too many matters.”

According to the Superior Court of Justice’s website on Practice Directions, when proposed filings are not compliant with the applicable Practice Direction, they may be rejected or the deficiency will be brought to the attention of the presiding judge who may make any appropriate order regarding the deficiency, including a potential cost award. In Campbell v Campbell, where the applicant was self-represented and her materials failed to comply with the applicable Practice Direction, Justice Tranquilli exercised some leniency due to the applicant’s self-represented status.[1] Justice Tranquilli disregarded any evidence filed not in compliance with the Practice Direction that would disadvantage the respondent on the material issues, and put the applicant on notice that she was expected to be held to strict adherence to the Practice Directions going forward, whether self-represented or not.[2]

Keeping Up with Practice Directions

The intricacy and de-centralization of Practice Directions pose challenge for litigants in the Ontario Superior Court of Justice. Apart from a consolidated provincial Practice Direction, each of the eight regions in the Superior Court of Justice has its own Practice Directions for family law proceedings, with some regions combining the family law Practice Directions with civil proceedings while others keep them separate. While some regional Practice Directions are user-friendly, consolidating all necessary information for family proceedings in one document, others fall short by omitting crucial requirements. Litigants in those regions find themselves having to refer to additional documents, such as the “Notice to the Profession and Family Law Litigants,” on top of navigating the two versions of Practice Directions and the Family Law Rules. Unfortunately, these regional Practice Directions often fail to clearly identify what information is missing and where litigants can find it. 

Compounding the challenge is the potential misalignment between the directives outlined in Practice Directions or notices and the Family Law Rules. Notably, the Central East region, in the preamble of its Consolidated Practice Direction Concerning Family Law Cases, acknowledges that there might be conflicts and “where there is a conflict between the filing requirements of the Family Law Rules and this Practice Direction, the Practice Direction shall apply.” This introduces an additional layer of complexity and uncertainty for litigants. They must navigate a landscape where adherence to one set of rules might inadvertently lead to non-compliance with another, creating a precarious situation for litigants attempting to reconcile conflicting requirements.

The Ontario Court of Justice, in which many family litigants find themselves, have their own Practice Directions, which differ from those of the Superior Court and differ across jurisdictions, causing further confusion.[3]

In essence, the difficulty faced by litigants and counsel in navigating Practice Directions extends beyond their intricacy to encompass issues of decentralization, lack of uniformity, and potential conflicts with established rules. These difficulties are exacerbated for self-represented individuals and sole practitioners. The challenges collectively contribute to a lack of compliance to the Practice Directions, as noted by Justice Tranquilli in Campbell v Campbell .

Judicial Leniency vs Strict Adherence

While strict compliance to Practice Directions is expected, judges have the authority to issue appropriate orders for any shortcomings in following Practice Directions. Owing to the inherent practical challenges in adhering to these directions, the court has displayed a varying degree of leniency.

In Numair v. Numair, 2020 ONSC 3737, Justice Sutherland. faced a voluminous filing on an urgent motion, noting a failure to comply with the Chief's Notice and local Practice Directions. The motion was dismissed, yet without prejudice, allowing the applicant to submit a compliant motion aligned with current directives.[4]

Fiorellino-Di Poce v. Di Poce, 2023 ONSC 854 and Hrvic v. Hrvic, 2023 ONSC 388 demonstrate that failure to adhere to Practice Directions may influence costs awards, albeit not in isolation. In Fewson v. Bansavatar et al, 2021 ONSC 6697, parties exceeding page limits faced restrictions on the materials they could rely upon.

In Zaldin v. Zaldin, 2014 ONSC 6504, where an applicant submitted a factum surpassing the specified page limit, the court acknowledged the non-compliance but adapted by extracting essential information from the factum and oral submissions what the court considered necessary to arrive at a decision, underscoring the judiciary's pragmatic approach.[5]

While these instances underscore a certain level of judicial leniency toward noncompliance with Practice Directions, Justice Tranquilli aptly observed, disregard to the court’s Practice Directions “delay the court process and rob other parties of valuable court time.”[6] This dilemma persists, emphasizing the ongoing need for a judicious balance between leniency and adherence in the realm of Practice Directions.

Navigating the Dilemma of Practice Directions

The evolution and implementation of Practice Directions in the Ontario Superior Court of Justice have been marked by good intentions, seeking to streamline proceedings, enhance accessibility, and bolster public trust. Yet, the journey from intention to execution reveals a multifaceted reality. While Practice Directions bring undeniable benefits, including clear guidance for litigants, improved case management, and heightened public confidence, their effective utilization encounters resistance, sometimes justified, in practice.

The challenges are myriad, stemming from the intricacies and decentralization of practice directions. Varying regional approaches, conflicts with Family Law Rules, and insufficient clarity compound the difficulties faced by litigants and counsel alike.

In concluding this exploration, the conundrum persists: Are Practice Directions living up to their potential, or do they, in some instances, inadvertently hinder the pursuit of justice? The authors suggest one consolidated Practice Direction which applies to all family proceedings throughout Ontario, and which do not conflict with the Family Law Rules —a balance that ensures fairness, efficiency, and accessibility in the realm of practice directions, ultimately fortifying the foundation of our legal system.

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