Difference between revisions of "Case Conferences in a Family Law Matter"

There are a host of reasons why it is important that family law cases are resolved by agreement. From the court's point of view, settlement frees up valuable resources which can be applied to other cases and lessens the likelihood that judicial intervention will be required in the future. From the parties' point of view, settlement is cheap, protects the children from ongoing conflict, and gives everyone involved the best chance of having a tolerable relationship with each other in the future.

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, we also have a professional and ethical duty to foster and promote settlement wherever possible, providing that a proposed settlement is not an unreasonable compromise of our client's interests.

The rules of court have evolved to provide additional opportunities for settlement and steer people toward litigation's off-ramp. In the Supreme Court, we have the Judicial Case Conference under Rule 7-1 and Settlement Conferences under Rule 7-2. In the Provincial Court, we have the Family Case Conference under Rule 7. This segment will discuss the two conferences unique to family law matters.

Judicial Case Conferences, usually referred to as JCCs, are relatively informal, off-the-record, private meetings between the parties, their lawyers and a master or judge in a courtroom. JCCs must be held in all contested family law actions, and, in most cases, they must be held before any interim applications can be heard.

Subject to subrules (3) and (4), unless a judicial case conference has been conducted in a family law case, a party to the family law case must not serve on another party a notice of application or an affidavit in support.

when an application is being made for an order restraining either or both parties from disposing of family assets;

when an order will be made with the consent of both parties; and,

when the application is being made without notice being given to the other side (sometimes called an ex parte application 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 seek an exception under this subrule, you'll have to make an application to a master for an order granting the exception:

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

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. (A sample Notice of Judicial Case Conference can be found in the list of sample documents in the Supreme Court Downloads segment above.)

 

According to Rule 7-1(8), 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 service.

The basic purpose of a JCC is to review the claims eash side is making, determine where there are agreements, and see whether there is anything other than a trial which 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.

(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 consent;

(c) mediate any of the issues in dispute;

(d) with the consent of the parties, refer any issues to mediation 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 pleading, 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 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-binding 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 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. 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!

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 access schedule, to a restraining order, to the sale of the family home — the Judge or Master will make that order. Areas that can't be agreed upon will be left for further negotiation 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: