Case Conferences in a Family Law Matter

A case conference is a meeting between the parties, their lawyers (if they have them), and a judge, usually for a purpose relating to the administration or the settlement of a court 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 to help the parties prepare for trial if the matter cannot be settled.

Trial management conferences in the Supreme Court and trial preparation conferences in the Provincial Court are all about getting a proceeding ready for trial, and are held towards the end of a proceeding.

Settlement conferences in the Supreme Court are not mandatory and can be held at any time during a proceeding if both parties agree to doing so.

This section discusses judicial case conferences, family case conferences, settlement conferences, and to a lesser extent trial management and preparation conferences, including 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.

More information about trial management and preparation conferences can be found later in this section:

• Preparing for and Going to Trial in Supreme Court: Schedule and attend a trial management conference, and
• Preparing for and Going to Trial in Provincial Court: Attend a trial preparation conference.

Resolving a court proceeding without a trial is still possible

Case conferences and other rules of court aim to promote settlement.

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 helps to protect the children from ongoing conflict, 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 case, settlement is cheap, helps to protect the children from ongoing conflict, allows you to stop living in limbo and instead to get on with your life, 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 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 Act on dispute resolution 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 arrangements and arrangements respecting contact with a child that is in the best interests of the child.

Rule 7-1 of the Supreme Court Family Rules, requires the parties to a family law court proceeding to attend a judicial case conference (JCC) 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 (FCC) for the same sort of purpose, and Rule 7(4)(a) allows the judge hearing the FCC to attempt to mediate a resolution of the proceeding.

The Supreme Court Family Rules include other rules that encourage and promote settlement and are more extensive than the Provincial Court Family Rules in doing so:

• Rule 11-1 of the Supreme Court Family Rules allows parties to a family law court proceeding in Supreme Court to make offers to settle, which offers can have consequences for the costs one party (usually the losing party) is required to pay the other party (usually the winning party) at the end of the proceeding if it goes to trial; and
• Rule 16-1 of the Supreme Court Family Rules allows a party (usually the winning party and after a trial) to seek costs from the other party (usually the losing party) although the “costs” do not represent a dollar-for-dollar reimbursement for legal fees (and can be awarded even if the winning party does not have a lawyer). There are, however, exceptions to this general rule.

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 relief 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.

Supreme Court: Judicial case conferences

Judicial case conferences in the Supreme Court, 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 court proceedings, and, in most cases, they must be held before any interim applications can be heard. (Exceptions to this rule are found at Rule 7-1(3) of the of the Supreme Court Family Rules.)

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. More information about Financial Statements is provided later in this chapter in the section Discovery Process in a Family Matter.

Lists of Documents are also to be exchanged early on in the discovery process (see Rule 9-1(1) of the Supreme Court Family Rules) unless the parties otherwise agree or the court otherwise orders, and therefore also often exchanged before the JCC. (Lists of Documents are not filed in court, but simply exchanged informally between the parties). More information about Lists of Documents is provided later in this chapter in Discovery Process in a Family Matter.

The more information that is exchanged before the JCC the better. Parties who are well informed about the facts of the case and who have had the opportunity to get legal advice in advance of the JCC are more likely to reach a settlement at the JCC, and save the time, expense, stress and uncertainty of continuing the lawsuit.

Avoiding a judicial case conference

The usual rule is that the parties to a family law proceeding in Supreme Court must attend a judicial case conference before making an application to the court for interim orders, although there are exceptions to the rule.

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 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:

1. when an application is being made for an order restraining either or both parties from disposing of 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 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 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 (see Form 17 - Requisition Schedule A (to Avoid Judicial Case Conference)).

Scheduling a judicial case conference

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 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 will be charged a filing fee (currently $80). You must then serve a copy of your filed Notice of Judicial Case Conference on the other side, along with a copy of your filed financial statement, by ordinary 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 review 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 in some courthouses 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 (i.e.: in an application to the court or at trial).

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 particular 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 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. JCCs often work best when the parties are able to express their own views and concerns freely.

JCCs also work best when both (or in some cases all) parties come prepared. This means having a realistic view of the strengths and weaknesses of the evidence that you have to prove your case and the strengths and weaknesses of the legal arguments you are trying to advance. It is also helpful to have a sense of the likely cost of taking the matter to trial if you can’t settle it at the judicial case conference (or sometime thereafter). As noted before, Financial Statements and often Lists of Documents are exchanged prior to the judicial case conference as the exchange of information is a necessary step before a settlement can be reached.

It is important to remember that while the judge or master may (and should!) push the parties to agree about certain things, the parties 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 interim support, to a protection order, to the sale of the family home, to the production of documents — 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 reports about parenting arrangements,
• 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.

Supreme Court: Settlement conferences

Settlement conferences are available in the Supreme Court at the request of both parties. They are usually not mandatory, but can be ordered by a judge or master. They are relatively informal, off-the-record, private meetings between the parties, their lawyers and a master or judge in a courtroom for the purpose of exploring all possibilities of settlement (See Rule 7-2 of the of the Supreme Court Family Rules).

Like JCCs, settlement conferences are private. Only the parties and their lawyers are allowed to be there unless the parties and the judge all agree that another person can attend. They are also held on an off-the-record basis, so that nothing said in the settlement conference can be used against anyone later on (i.e.: in an application to the court or at trial).

There are no guarantees that a settlement conference will result in a settlement as that requires that the parties attend in good faith and are motivated to settle.

Updated financial information should be exchanged between the parties before a settlement conference. If the updates are extensive and significant it is helpful to update and exchange sworn financial statements as well. If financial statements are updated, they should also be filed in court in advance of the settlement or a copy brought for the judge at the settlement conference.

It is common practice for parties to exchange settlement conference briefs prior to a settlement conference, and parties may be directed to do so. There is no specific form of settlement conference brief, but the following information should be included (or at least considered for inclusion):

1. Key facts & dates: date of cohabitation, marriage, separation &/or divorce, birthdates of parties and children, and other significant dates (may include house sales/purchases and/or moves, changes in employment or education, significant financial transactions such as inheritances, loans, purchases)
2. List of issues to be resolved and a description of your position about each one; and
3. List of key documents and other evidence to be relied upon, for example expert reports such as a section 211 parenting assessment or a marriage agreement or loan document that is at the heart of the dispute; you may want to attach a copy of any such document to the settlement conference brief; do bring an extra copy to the settlement conference in case the judge or the other party doesn’t have theirs.
4. Key case law to be relied on (more likely where the parties have lawyers).

At the settlement conference, each party will have turns telling the judge their version of the facts and why they want the orders that they want. The judge will listen and ask questions and explore settlement options. The judge may even provide opinions about the likely outcome of the case if it goes to trial based upon the judge’s experience in other cases and what the judge knows about the case.

Also like JCCs, settlement conferences work best when both parties come prepared, and the more information that is exchanged before the settlement conference the better. Being prepared also means having a realistic view of the strengths and weaknesses of the evidence that you have to prove your case and the strengths and weaknesses of the legal arguments you are trying to advance. It is also helpful to have a sense of the likely cost of taking the matter to trial if you can’t settle it at the settlement conference. Parties who are well informed about the facts of the case and who have had the opportunity to get legal advice in advance of the settlement conference are more likely to reach a settlement there, and save the time, expense, stress and uncertainty of continuing the lawsuit through to trial.

Scheduling a settlement conference

To set a date for a settlement conference, you will then need to contact the court registry and get their available dates. You will then need to communicate with the other party to select a date that you are both available for.

Once you have an agreeable date, call the registry back and tell them which date you've picked. You will then need to fill out and file a Requisition in Form F17 setting that date. There is no filing fee charged to schedule a settlement conference. You must then serve a copy of your filed Requisition on the other side by ordinary service

Supreme Court: Trial management conferences

Parties heading to trial are required to schedule and attend a trial management conference (unless the party has a lawyer in which case the party does not have to attend as long as they are available by telephone to speak with their lawyer if instructions are needed during the TMC). The trial management conference is a meeting with a judge or a master to discuss how the trial will proceed and what, if any, additional steps must be taken to ready the parties for trial.

More information about trial management conferences can be found later in this section: Preparing for and Going to Trial in Supreme Court: Schedule and attend a trial management conference.

Provincial Court: 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 responsibilities, parenting time 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 application.

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,
• ordering support be paid on an interim basis (meaning until the trial is heard),
• ordering a party to produce relevant documents such as income tax returns or bank records,
• ordering that a section 211 report be prepared, 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. FCCs often 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 lawyer. If you do have a lawyer, you should speak to him or her about the range of potential results areas where you might want to compromise your position, options for settlement, and the likely cost of proceeding to trial.

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 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 parties oppose.

Provincial Court: Trial preparation conferences

Parties heading to trial are usually required to attend a trial preparation conference, except if a party has a lawyer in which case the party does not have to attend as long as they are available by telephone to speak with their lawyer if instructions are needed during the TPC) . The trial preparation conference is a short court hearing with a judge discuss how the trial will proceed and what, if any, additional steps must be taken to ready the parties for trial.

More information about trial preparation conferences can be found later in this chapter: Preparing for and Going to Trial in Provincial Court: Preparing for trial in Provincial Court.

Resources and links

Legislation

• Provincial Court Act
• Provincial Court Family Rules
• Supreme Court Act
• Supreme Court Family Rules
• Court Rules Act

Resources

• Provincial Court Family Practice Directions
• Supreme Court Family Practice Directions
• Supreme Court Administrative Notices
• Supreme Court Trial Scheduling

Links

• Provincial Court website
• Supreme Court website: Litigants' Guide to Judicial Case Conferences
• Legal Services Society: Judicial Case Conferences in Supreme Court
• Legal Services Society: How to deal with a JCC
• Legal Services Society: Family Case Conferences in Provincial Court
• Legal Services Society: Family Case Conference Checklist
• Legal Services Society: How to schedule and prepare for your Supreme Court trial - see Step 4: Prepare for and attend the Trial Management Conference

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Shannon Aldinger, June 16, 2017.

JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.