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Difference between revisions of "Overview of Case Conferences and Discovery in Family Law Matters"
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Overview of Case Conferences and Discovery in Family Law Matters (view source)
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Whether you're off to trial or a settlement can be reached, the steps until trial involve attending | Whether you're off to trial or a settlement can be reached, the steps until trial involve attending case conferences and taking steps to discover the other party’s case (the evidence and arguments of the other party). | ||
Case | Case Conferences involve opportunities for parties to meet with each other in front of a judge to discuss the issues in the court proceeding (and possible opportunities for settlement) as well assist the parties in setting deadlines to prepare themselves for trial. | ||
Discovery involves learning about (“discovering”) the evidence that the other party intends to use at trial (for example through receiving documents from the other party and asking the other party questions about their case) and the arguments that party intends to make at trial. It also involves providing the other party with details about the evidence you intend to use at trial (for example documents) and telling them why you are making the claims and/or taking the position(s) you are taking. | |||
Before reviewing the usual next steps: | Before reviewing the usual next steps: | ||
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#'''Questioning the other party out of court.''' In Supreme Court the parties may, if they wish, question each other outside of court, in a formal setting before a court reporter. This is called an ''examination for discovery''. Examinations for discovery, also called ''discoveries'', are helpful to get each person's views of the evidence and the issues on the record. Discoveries are almost always held after Financial Statements have been prepared and documents have been exchanged. There is no similar procedure in Provincial Court. | #'''Questioning the other party out of court.''' In Supreme Court the parties may, if they wish, question each other outside of court, in a formal setting before a court reporter. This is called an ''examination for discovery''. Examinations for discovery, also called ''discoveries'', are helpful to get each person's views of the evidence and the issues on the record. Discoveries are almost always held after Financial Statements have been prepared and documents have been exchanged. There is no similar procedure in Provincial Court. | ||
#'''Other discovery processes available in Supreme Court.''' There are more extensive discovery processes in the Supreme Court than in Provincial Court, which processes include notices to admit (Rule 9-6), interrogatories (Rule 9-3), and pre-trial examination of witnesses (Rule 9-4). | #'''Other discovery processes available in Supreme Court.''' There are more extensive discovery processes in the Supreme Court than in Provincial Court, which processes include notices to admit (Rule 9-6), interrogatories (Rule 9-3), and pre-trial examination of witnesses (Rule 9-4). | ||
#'''Have a settlement conference & make a settlement offer.''' In Supreme Court, the rules of court allow a party to schedule a settlement conference before a judge ahead of trial. In Provincial Court, a party would need to ask to schedule another family case conference. At this conference, the parties will explain their positions and areas of disagreement to the judge, and hopefully negotiate a settlement. These conferences can be very helpful; the judge will serve as a mediator and help the parties work towards a settlement. The judge may also express | #'''Have a settlement conference & make a settlement offer.''' In Supreme Court, the rules of court allow a party to schedule a settlement conference before a judge ahead of trial. In Provincial Court, a party would need to ask to schedule another family case conference. At this conference, the parties will explain their positions and areas of disagreement to the judge, and hopefully negotiate a settlement. These conferences can be very helpful; the judge will serve as a mediator and help the parties work towards a settlement. The judge may also express his or her opinion about the strengths and weaknesses of each party's position, which also encourages settlement. You can also prepare a written settlement offer and provide it to the other party (see [http://familylaw.lss.bc.ca/resources/fact_sheets/makingAnOfferToSettle.php Family Law in BC: Making an offer to settle]). Just because one round of settlement negotiations isn’t successful doesn’t mean that you shouldn’t try again later in the case after information has been exchanged between the parties and the trial is approaching. | ||
#'''Have a trial preparation or management conference.''' In Supreme Court, parties attend a trial management conference (TMC) which is a formal hearing before a judge designed to fix the schedule of events at the trial and resolve as many disputes as possible about evidence before trial. Among other things, the judge will ask about the witnesses each party intends to present, the completeness of the disclosure made to date, expert's reports and expert witnesses, and anything else that can be dealt with to help make sure the trial will go ahead and be completed within the time available. A TMC is generally not an opportunity to engage in settlement discussions, although the judge at the TMC can order that a settlement conference happen. In Provincial Court, parties must attend a trial preparation conference (TPC) unless they are represented by lawyers in which case the lawyers must attend and the parties must be available by phone to give instructions. Similar issues are discussed at a TPC as at a TMC. Both are discussed in more detail further in this section. | #'''Have a trial preparation or management conference.''' In Supreme Court, parties attend a trial management conference (TMC) which is a formal hearing before a judge designed to fix the schedule of events at the trial and resolve as many disputes as possible about evidence before trial. Among other things, the judge will ask about the witnesses each party intends to present, the completeness of the disclosure made to date, expert's reports and expert witnesses, and anything else that can be dealt with to help make sure the trial will go ahead and be completed within the time available. A TMC is generally not an opportunity to engage in settlement discussions, although the judge at the TMC can order that a settlement conference happen. In Provincial Court, parties must attend a trial preparation conference (TPC) unless they are represented by lawyers in which case the lawyers must attend and the parties must be available by phone to give instructions. Similar issues are discussed at a TPC as at a TMC. Both are discussed in more detail further in this section. | ||
#'''Go to trial.''' At the end of the day, if you can't agree on a resolution you will wind up at trial. Do remember that one party has to take steps to schedule a trial (see the | #'''Go to trial.''' At the end of the day, if you can't agree on a resolution you will wind up at trial. Do remember that one party has to take steps to schedule a trial (see the section in this chapter on preparing for trial). At the trial, each side will call their witnesses to give evidence, cross-examine the witnesses of the other party, and give their argument as to why the judge ought to make the orders that party is seeking. The judge will hear all the evidence and the arguments, and reach a decision in the form of ''reasons for judgment''. The reasons for judgment are not always provided the date the trial ends; often it takes a judge weeks or even months to reach their decision and write their reasons for judgment. The lawyers, or the court clerk in the absence of lawyers, will prepare a final order based on the reasons for judgment. | ||
This description of the steps involved is just a rough sketch of the lengthy process of bringing a court proceeding to a conclusion. Not every proceeding will need to use all of these steps (some people may not need to have examinations for discovery and others won't see the point of holding a settlement conference, for example), and some steps may need to be repeated more than once. As well, the actual trial process (which includes complicated rules of evidence) is much, much more complex than this brief description. | This description of the steps involved is just a rough sketch of the lengthy process of bringing a court proceeding to a conclusion. Not every proceeding will need to use all of these steps (some people may not need to have examinations for discovery and others won't see the point of holding a settlement conference, for example), and some steps may need to be repeated more than once. As well, the actual trial process (which includes complicated rules of evidence) is much, much more complex than this brief description. | ||
For more information about case conferences, see [[Case Conferences in a Family Law Matter]] | For more information about case conferences, see [[Case Conferences in a Family Law Matter]]. For more information about discovery, see [[Discovery Process in a Family Law Matter]]. | ||
==Resources and links== | ==Resources and links== | ||
