Case Conferences in a Family Law Matter

Introduction

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

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.

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 JCC

Rule 7-1(2) says that:

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

where the parties are married, when an application is being made for a declaration that they have no prospect of reconciling; 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:

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 schedule a JCC for hearing before you can bring your application.

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.

Scheduling a JCC

To set a date for a JCC, first contact the court registry and get their available dates. (JCCs are given a lot of priority by the registry 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 no more than common courtesy to select a date that's convenient for everyone.

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 Purpose of JCCs

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.

JCCs are very useful in almost all cases. Some cases will even settle at a JCC, with no need for further litigation.

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 so try and settle a dispute, and will take on almost a mediative function; others are content to let areas of disagreement alone and focus on known areas of agreement instead. Some Judges and Masters will provide an informal opinion about the likely result in the case; others won't. There are no guarantees that a JCC will be run in a particular way.

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 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!

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 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:

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 custody and access 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 JCCs in the Supreme Court and FCCs in the Provincial Court. First, FCCs aren't mandatory and you only get to have a FCC if a judge orders that you have one. Second, the judge has the discretion to make orders without the consent of a party. Otherwise FCCs are pretty much just like JCCs.

Applying for a FCC

Under Rule 7(1), a judge may order the parties to attend a FCC where the case involves contested claims for custody, guardianship or access. Applications for a FCC can be made at a first appearance or at any subsequent appearance, or by Notice of Motion like any other interim application.

It is fairly easy to get an order that a FCC be heard. The court will not be interested in granting a FCC if:

it's obvious that you've asked for the FCC to obstruct the hearing of 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 FCC

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

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

The Purpose of FCCs

The purpose of a FCC is to reach a settlement of any disputed parenting issues. Although Rule 7 limits the circumstances in which a FCC can be ordered to parenting issues, it doesn't say that no other issues can be discussed at a 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 very proper, 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 spouse 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 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 lawyer. 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) sets out 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 evidence; (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 maintenance 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, reply or notice of motion; (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 party opposes.

Further Reading in this Chapter

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Page Resources, Links and Downloads

Legislation

• Supreme Court Act
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Links

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Downloads

What are our plans for sample documents? Is everything to be on a separate page? If so, the following should be moved there. I haven't edited the following.

Click the links below to open templates in Word format. Areas where you must supply information are indicated in green text.

Form F8: Financial Statement (DOC) Form F17 (FPD 2): Requisition to avoid the JCC requirement (DOC) Form F19: Notice of Judicial Case Conference (DOC)