Case Conferences in a Family Law Matter

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A case conference is a meeting between the parties, their lawyers (if they have them), and a judgeA person appointed by the federal or provincial governments to manage and decide court proceedings in an impartial manner, independent of influence by the parties, the government or agents of the government. The decisions of a judge are binding upon the parties to the proceeding, and are subject to appeal., usually for a purpose relating to the administration or the settlementA resolution of one or more matters at issue in a court proceeding or legal dispute with the agreement of the parties to the proceeding or dispute, usually recorded in a written agreement or in an order that all parties agree the court should make. A court proceeding can be settled at any time before the trial. See "action," "consent order," "family law agreements" and "offer." of a court proceedingA legal proceeding in which one party sues another for a specific remedy or relief, also called an "action," a "lawsuit" or a "case." A court proceeding for divorce, for example, is a proceeding in which the claimant sues the respondent for the relief of a divorce order.. Trial management conferences in the Supreme Court and trialThe testing of the claims at issue in a court proceeding at a formal hearing before a judge with the jurisdiction to hear the proceeding. The parties present their evidence and arguments to the judge, who then makes a determination of the parties' claims against one another that is final and binding the parties unless appealed. See "action," "appeal," "argument," "claim," "evidence" and "jurisdiction." preparation conferences in the Provincial CourtA court established and staffed by the provincial government, which includes Small Claims Court, Youth Court and Family Court. The Provincial Court is the lowest level of court in British Columbia and is restricted in the sorts of matters it can deal with. Small Claims Court, for example, cannot deal with claims larger than $25,000, and Family Court cannot deal with the division of family property or matters under the ''Divorce Act''. See "judge" and "jurisdiction." are all about getting a proceedingIn law, the whole of the conduct of a court proceeding, from beginning to end, and the steps in between; may also be used to refer to a specific hearing or trial. See "action." ready for trial, and are held towards the end of a proceeding. Judicial case conferences in the Supreme Court and family case conferences in the Provincial Court are held early in a proceeding and are about settling issues than can be agreed on, getting interim arrangements in place for support and the care of the children, and planning the next few steps in the proceeding.

This section discusses judicial case conferences and family case conferences, their limitations and their uses, and provides some tips about how you can get the most out of your time and the judge's time at a case conference.

Resolving a court proceeding without a trial

There are many reasons why it's important that family law court proceedings are resolved by agreement. From the court's point of view, settlement frees up valuable court and administrative resources that can be applied to other cases and lessens the likelihood that the proceeding will require ongoing court hearings in the future. From the point of view of the parties, the people involved in the family law caseIn law, a court proceeding; a lawsuit; an action; a cause of action; a claim. Also the historic decisions of the court. See "action," "case law, " "court proceeding," and "precedent.", settlement is cheap, helps to protect the children from ongoing conflict, and gives everyone involved the best chance of having a tolerable relationship with each other as time goes on.

Lawyers also have an interest in settling matters, for all of the same reasons why settlement is important to the courts and to the parties. In addition, lawyers have a professional and an ethical duty to promote settlement wherever possible, providing that a proposed settlement is not an unreasonable compromise of our clients' interests. This is written into our Code of Professional Conduct.

The laws and rules of courtThe guidelines governing the court process and the conduct of litigation generally. The rules of court are particular to each level of court. for family law proceedings have evolved to provide additional opportunities for settlement and steer people away from trial and out of court. In fact, s. 4 of the provincial Family Law Act says that the purposes of the part of the actIntentionally doing a thing; a law passed by a government, also called "legislation" or a "statute." See "regulations." on dispute resolutionA phrase referring to a family of processes used for resolving legal disputes including negotiation, collaborative settlement processes, mediation, arbitration and litigation. are to:

(b) to encourage parties to a family law dispute to resolve the dispute through agreements and appropriate family dispute resolution before making an application to a court;
(c) to encourage parents and guardians to
(i) resolve conflict other than through court intervention, and
(ii) create parenting arrangementsA term under the ''Family Law Act'' which describes the arrangements for parental responsibilities and parenting time among guardians, made in an order or agreement. "Parenting arrangements" does not include contact. See "contact," "guardian," "parental responsibilities" and "parenting time." and arrangements respecting contactA term under the ''Family Law Act'' that describes the visitation rights of a person who is not a guardian with a child. Contact may be provided by court order or by the agreement among the child's guardians who have parental responsibility for determining contact. See "guardian" and "parental responsibilities." with a child that is in the best interests of the childA person who is younger than the legal age of majority, 19 in British Columbia. See "age of majority.".

Rule 7-1 of the Supreme Court Family Rules, requires the parties to a family law court proceeding to attend a judicial case conference early in the proceeding, and Rule 7-2 allows the parties to schedule a settlement conference with a judge. Under Rule 7-1(15)(a), one of the purposes of a JCC is to:

identify the issues that are in dispute and those that are not in dispute and explore ways in which the issues in dispute may be resolved without recourse to trial

Rule 7 of the Provincial Court Family Rules allows a judge to require the parties to attend a family case conferences for the same sort of purpose, and Rule 7(4)(a) allows the judge hearingIn law, any proceeding before a judicial official to determine questions of law and questions of fact, including the hearing of an application and the hearing of a trial. See "decision" and "evidence." the FCC to attempt to mediate a resolution of the proceeding.

In general, if you can resolve a court proceeding without going to trial, you should. However, the settlement, whether it's reached with the help of a judge or not, must be fair and reasonable. (It's always a reliefIn law, an order sought by a party to a court proceeding or application, usually as described in his or her pleadings. Where more than one order or type of order is sought, each order sought is called a "head of relief." See "action," "application" and "pleadings." to settle a court proceeding, but if the settlement is unfair a return to court is inevitable!) Case conferences can really help to move a difficult case toward resolution, but the judge cannot force to you accept a settlement. You must agree that a proposed settlement is reasonable and agree to end the court proceeding on the terms of that settlement.

Judicial case conferences

Judicial case conferences in the Supreme CourtNormally referred to as the "Supreme Court of British Columbia," this court hears most court proceedings in this province. The Supreme Court is a court of inherent jurisdiction and is subject to no limits on the sorts of claims it can hear or on the sorts of orders it can make. Decisions of the Provincial Court are appealed to the Supreme Court; decisions of the Supreme Court are appealed to the Court of Appeal. See "Court of Appeal," "jurisdiction," "Provincial Court" and "Supreme Court of Canada.", usually referred to as JCCs, are relatively informal, off-the-record, private meetings between the parties, their lawyers and a masterA provincially-appointed judicial official with limited jurisdiction usually charged with making decisions before and after final judgment in a court proceeding, including the hearing of interim applications, the assessment of lawyers' bills and the settling of bills of cost. See "interim application," "judge," and "jurisdiction." or judge in a courtroom. JCCs must be held in all contested family law court proceedings, and, in most cases, they must be held before any interim applications can be heard.

Financial statements must be exchanged by the parties before each JCC. They must also be filed in court in advance of the JCC to give the judge the chance to read through them first.

Avoiding a judicial case conference

Rule 7-1(2) of the Supreme Court Family Rules says that:

Subject to subrules (3) and (4), unless a judicial case conference has been conducted in a family law case, a partyIn law, a person named as an applicant, claimant, respondent or third party in a court proceeding; someone asserting a claim in a court proceeding or against whom a claim has been brought. See "action" and "litigant." to the family law case must not serve on another party a notice of application or an affidavit in support.

Subrule (3) sets out the exceptions to this requirement:

  1. when an application is being made for an orderA mandatory direction of the court, binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. See "appeal," "consent order," "decision" and "declaration." restraining either or both parties from disposing of propertySomething which can be owned. See "chattels" and "real property.",
  2. when an order will be made with the agreement of both parties, and
  3. when the application is being made without notice being given to the other side (sometimes called an ex parte applicationA request to the court that it make an order for a specific remedy or relief usually on an interim or temporary basis, also called a "chambers application" or a "motion." See also "interim application" and "relief." or a without notice application).

Subrule (4) sets out some further exceptions to the general rule about JCCs and interim applications. However, if you need to ask for an exception under this subrule, you'll have to make an application to the court for an order granting the exception:

On application by a party, the court may relieve a party from the requirements of subrule (2) if
(a) it is premature to require the parties to attend a judicial case conference,
(b) it is impracticable or unfair to require the party to comply with the requirements of subrule (2),
(c) the application referred to in subrule (2) is urgent,
(d) delaying the application referred to in subrule (2) or requiring the party to attend a judicial case conference is or might be dangerous to the health or safety of any person, or
(e) the court considers it appropriate to do so in the circumstances.

In other words, if your application is urgent you can ask for permission to have your application heard before the first JCC. If your application falls into one of the exceptions set out in Rule 7-1(3), you don't need the court's permission. If your application doesn't fall into either category, you've got little choice but to have a JCC before you can bring your application.

Applications to be exempt from the JCC requirement are made by filing a special form of Requisition without an appearance in court.

Scheduling a judicial case conference

To set a date for a JCC, first contact the court registryA central office, located in each judicial district, at which the court files for each court proceeding in that district are maintained, and at which legal documents can be filed, searched, and reviewed. and get their available dates. (JCCs are given a lot of priority by the registryA central office, located in each judicial district, at which the court files for each court proceeding in that district are maintained, and at which legal documents can be filed, searched and reviewed; a courthouse. staff, and you should be able to book a hearing date within a month or two.) In most cases, you will want to give these dates to the other side and select a date that you are both available for. It's just common courtesy to select a date that's convenient for everyone, plus you will want the other side to be able to attend the conference.

Once you have an agreeable date, call the registry back and tell them which date you've picked. They will then ask you to fill out and file a Notice of Judicial Case Conference in Form F19 setting that date. You must then serve a copy of your filed Notice of Judicial Case Conference on the other side, along with a copy of your financial statement, by ordinary serviceSending legal documents to a party at that party's "address for service," usually by mail, fax or email. Certain documents, like a Notice of Family Claim, must be served on the other party by personal service. Most other documents may be served by ordinary service. See also "address for service" and "personal service.".

For a summary of how to schedule a JCC, see How Do I Schedule a Judicial Case Conference for Hearing? It's located in the How Do I? part of this resource, in the section Other Litigation Issues.

The purposes of judicial case conferences

The basic purposes of a JCC are to reviewIn law, the re-examination of a term of an order or agreement, usually to determine whether the term remains fair and appropriate in light of the circumstances prevailing at the time of the review. In family law, particularly the review of an order or agreement provided for the payment of spousal support. See "de novo," "family law agreements," "order" and "spousal support." the claims each side is making, determine where there is agreement, and see whether there is anything other than a trial that will resolve the claims in dispute. JCCs are relatively informal affairs, and most of the time everyone sits at a large table with the judge or master who is hearing the JCC. JCCs are private. Only the parties and their lawyers are allowed to be there. They are also held on an off-the-record basis, so that nothing said in the JCC can be used against anyone later on.

Different judges and masters will handle JCCs in different ways. Some judges and masters are very hands-on; others take a more distant, judicial approach. Some are very keen to try to settle a dispute, and will work almost like a mediator; others are content to leave areas of disagreement alone and focus on getting a resolution in place on the areas of agreement instead. Some judges and masters will provide an informal opinion about the likely result in a particualr case; others won't. There are no guarantees that a JCC will be run in a particular way.

However, JCCs are very useful in almost all cases. Some cases will even settle at a JCC, with no need for further litigation. The court's powers at JCCs are set out at Rule 7-1(15) and are very broad. The court may:

(a) identify the issues that are in dispute and those that are not in dispute and explore ways in which the issues in dispute may be resolved without recourse to trial;
(b) make orders to which all the parties consentAgreement; the giving of permission for a thing to happen or not happen.;
(c) mediate any of the issues in dispute;
(d) with the consent of the parties, refer any issues to mediationA dispute resolution process in which a mediator facilitates discussions between the parties to a legal dispute and helps them reach a compromise settling the dispute. See "alternative dispute resolution" and "family law mediator." with a private mediator;
(e) refer the parties to a family justice counsellor, or to a person designated by the Attorney General to provide specialized support assistance, if the court has received written advice from the regional manager that the family justice counsellor or designated person is readily available to the parties;
(f) direct a party to attend the Parenting after Separation program operated by the Family Justice Services Division (Justice Services Branch), Ministry of Attorney General;
(g) make orders respecting amendment of a pleadingA legal document setting out either a claim or a defence to a claim prepared at or following the start of a court proceeding. In the Provincial Court, the pleadings are the Application to Obtain an Order and Reply. In the Supreme Court, the pleadings include the Notice of Family Claim, Response to Family Claim, Counterclaim, Petition and Response to Petition. See "action," "claim" and "Counterclaim.", petition or response to petition within a fixed time;
(h) make orders requiring that particulars be provided in relation to any matter raised in a pleading;
(i) make orders respecting discoveryA step in a court proceeding in which a party is entitled to demand that the other produce requested documents and submit to a cross-examination on oath or affirmation outside of court before trial. This process is regulated by the rules of court. The purpose of this step is to encourage the settlement of court proceedings and to make sure that each party knows what the other party's case will be trial. See "examination for discovery." of documents;
(j) make orders respecting examinations for discovery;
(k) direct that any or all applications must be made within a specified time;
(l) reserve a trial date for the family law case or reserve a date for a trial that is restricted to issues defined by the parties;
(m) set a date for a trial management conference under Rule 14-3;
(n) make any orders that may be made at a trial management conference under Rule 14-3 (9);
(o) without hearing witnesses, give a non-bindingIn law, a requirement or obligation to honour and abide by something, such as a contract or order of the court. A judge's order is "binding" in the sense that it must be obeyed or a certain punishment will be imposed. Also refers to the principle that a higher court's decision on a point of law must be adopted by a lower court. See "contempt of court" and "precedent." opinion on the probable outcome of a hearing or trial;
(p) without limiting any other orders respecting timing that may be made under this subrule, make orders respecting timing of events;
(q) adjourn the judicial case conference;
(r) direct the parties to attend a further judicial case conference at a specified date and time;
(s) make any procedural order or give any direction that the court considers will further the object of these Supreme Court Family Rules.

At the JCC, each side will have the opportunity to tell their story and explain why they want what they're asking for. Most of the time, the lawyers for each party will state their understanding of the facts and why their clients should have what they're looking for, and the clients will be asked if they have anything to add. Frankly, JCCs usually work best when the parties are able to express their own views and concerns freely.

It is important to remember that while the judge or master may (and should!) push the parties to agree about certain things, they don't have to agree. The judge or master cannot make any orders, except for procedural orders, that the parties don't agree with. If you're not happy with a potential order that's being discussed, you must say so!

Potential outcomes

It is possible for some or all issues to be settled at a JCC. Where there are areas of agreement — which could concern anything, from a temporary parenting schedule, to a protection orderAn order available under the ''Family Law Act'' for the protection of a person at risk of family violence. Protection orders include orders restraining someone from harassing, contacting or stalking a person, restraining someone from going to a person's home, place of employment or school. See "application," "ex parte" and "restraining order.", to the saleAn agreement to transfer the ownership of property from one person to another in exchange for the reciprocal transfer of something else, usually money. See "agreement." of the family homeIn family law, the dwelling occupied by a family as their primary residence. See "family property" and "real property." — the judge or master will make that order. Areas that can't be agreed upon will be left for further negotiationIn family law, the process by which an agreement is formed between the parties to a legal dispute, usually consisting of mutual compromise from the parties' original positions to the extent tolerable by each party. See "alternative dispute resolution" and "family law agreements." and further litigation.

Even if nothing can be agreed upon, the judge or master will usually make a series of orders about the next procedural steps in the litigation. Typically, these will include:

  • scheduling an application for hearing,
  • setting dates for the exchange of documents and lists of documents,
  • setting dates for examinations for discovery,
  • scheduling a settlement conference,
  • resolving issues about experts and custodyIn family law, an antiquated term used by the ''Divorce Act'' to describe the right to possess a child and make parenting decisions concerning the child's health, welfare and upbringing. See "access." and accessUnder the ''Divorce Act'', the schedule of a parent's time with his or her children under an order or agreement. Access usually refers to the schedule of the parent with the least time with the child. See "custody." reports,
  • setting the dates for the trial management conference and the trial, and
  • scheduling the dates for any further JCCs.

At the end of the conference, the court clerk will print out a case management plan that will show the orders that have been agreed to, the issues still in dispute, and any schedule for the next steps in the litigation. Most of the time, both parties and their lawyers will sign the case management plan; no one needs to sign a case management plan where nothing was agreed to.

Family case conferences

There are two big differences between judicial case conferences in the Supreme Court and family case conferences in the Provincial Court. First, FCCs aren't mandatory and you only get to have an FCC if a judge orders that you have one. Second, the judge at an FCC has the discretion to make orders without the consent of a party. Otherwise FCCs are pretty much just like JCCs.

Applying for a family case conference

Under Rule 7(1) of the Provincial Court Family Rules, a judge may order the parties to attend an FCC where the case involves contested claims about guardianship or for parental responsibilitiesA term under the ''Family Law Act'' which describes the various responsibilities exercised by guardians in the care, upbringing and management of the children in their care, including determining the child's education, diet, religious instruction or lack thereof, medical care, linguistic and cultural instruction, and so forth. See "guardian.", parenting timeA term under the ''Family Law Act'' which describes the time a guardian has with a child and during which is responsible for the day to day care of the child. See "guardian." or contact. An application for an FCC can be made at a first appearance or at any subsequent appearance, or by Notice of Motion like any other interim applicationAn application, also called in "interlocutory application," made after the start of a court proceeding but before its conclusion, usually for temporary relief pending the final resolution of the proceeding at trial or by settlement. In family law, interim applications are useful to determine issues like where the children will live, who will pay child support and whether spousal support should be paid on a rough and ready basis. See "application" and "interim order.".

It is fairly easy to get an order that an FCC be heard as the court will usually agree that an FCC is a good idea. The court will not be interested in granting an FCC if:

  • it's obvious that you've asked for the FCC to obstruct the hearing or trial or an interim application,
  • there's already been an FCC heard in your case and there's nothing to suggest that a new FCC will have a better chance of success, or
  • there is an urgent reason for the case to head to trial without further delay.

Scheduling a family case conference

FCCs are booked by the judicial case manager, and if you get an order for an FCC, the judge will adjourn your case to the judicial case manager to get a date set up. Like JCCs, it is good idea to pick a date on which everyone is available to attend.

The judicial case manager will fix the date for the FCC on the spot and give you a slip with the date and time on it.

For a summary of how to schedule a case conference, see How Do I Schedule a Family Case Conference for Hearing? It's located in the How Do I? part of this resource, in the section Other Litigation Issues.

The purposes of family case conferences

The primary purpose of an FCC is to reach a settlement of any disputed parenting issues. Although Rule 7 limits the circumstances in which an FCC can be ordered to parenting issues, it doesn't say that no other issues can be discussed at an FCC, and the judge may be prepared to deal with support issues as well.

FCCs are relatively informal affairs, and most of the time everyone sits at a large table with the judge who is hearing the FCC. FCCs are private; under Rule 7(2) only the parties and their lawyers are allowed to be there. Under Rule 7(3), the judge may give permission for other people, including the parties' child, to attend. FCCs are held on an off-the-record basis, so that nothing said in the FCC can be used against anyone later on.

Although different judges will handle FCCs in different ways, most of the time the judge will act like a mediator. Some judges will handle the FCC in a reserved, judicious manner. Others are more hands-on and will do everything they can to help the parties settle their issues, including:

  • scheduling a series of FCCs,
  • speaking directly to the children,
  • ordering or recommending views of the child reports, and
  • asking important third parties, like a new spouseUnder the ''Divorce Act'', either of two people who are married to one another, whether of the same or opposite genders. Under the ''Family Law Act'', married spouses, unmarried parties who have lived together in a marriage-like relationship for at least two years, and, for all purposes of the act other than the division of property or debt, unmarried parties who have lived together for less than two years but have had a child together. See "marriage" and "marriage-like relationship." or a half-sibling, to attend a future FCC.

At the FCC, each side will have the opportunity to tell their story and explain why they want what they're asking for. Most of the time, the lawyers for each party will state their understanding of the facts and why their clients should have what they're looking for, and the clients will be asked if they have anything to add. Frankly, FCCs usually work best when the parties are able to voice their own views and concerns freely.

Cases often settle at FCCs. In order to maximize the chances of settlement, it is critical that you get proper legal advice about your situation and options before you go to the FCC if you don't have a lawyerA person licensed to practice law in a particular jurisdiction. See "barrister and solicitor.". If you do have a lawyer, you should speak to him or her about the range of potential results and areas where you might want to compromise your position.

Potential outcomes

It is possible for some or all issues to be settled at a FCC. Where there are areas of agreement, the judge will make that order. Issues that can't be agreed upon will be left for further negotiation and further litigation.

Rule 7(4) lists the things a judge can do at a FCC:

The judge at the family case conference may do one or more of the following:
(a) mediate any of the issues in dispute;
(b) decide any issues that do not require evidenceFacts or proof of facts presented to a judge at a hearing or trial. Evidence can be given through the oral testimony of witnesses, in writing as business records and other documents, or in the form of physical objects. Evidence must be admissible according to the rules of court and the rules of evidence. See "circumstantial evidence," "hearsay," and "testimony.";
(c) with consent of the parties, refer any issues to mediation with a private mediator;
(d) if the regional manager has advised the court in writing that the person or program is readily available to the parties, refer the parties to a family justice counsellor or to a person designated by the Attorney General to provide specialized maintenanceIn family law, an antiquated term referring to child support and spousal support. See "child support" and "spousal support." assistance;
(e) adjourn the case for purposes of mediation under paragraph (c) or a referral under paragraph (d);
(f) make an order to which all of the parties consent;
(g) direct that any or all applications must be made within a set time;
(h) direct the parties to attend a further family case conference, setting a date for that conference;
(i) set a date for a trial preparation conference under rule 8;
(j) make any order that may be made at a trial preparation conference under rule 8 (4);
(k) if the judge does not set a date for a further family case conference or for a trial preparation conference, set a trial date for the matter or set a date for a trial that is restricted to issues defined by the parties;
(l) make an interim or final order requested in an application, replyIn law, an answer or rebuttal to a claim made or a defence raised by the other party to court proceeding or legal dispute. See "action," "claim," "defence" and "rebut." or notice of motionIn law, an application to the court for an order, usually brought after the commencement of a court proceeding but before its conclusion following by trial or settlement; an interim application. See "action," "interim application" and "order.";
(m) without hearing witnesses, give a non-binding opinion on the probable outcome of a hearing or trial;
(n) make any other order or give any direction that the judge considers appropriate.

Although that last item, "make any other order or give any direction that the judge considers appropriate," sounds pretty all-encompassing and all-powerful, in practice the court rarely makes orders that one or more parties oppose.

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