Next Steps: An Overview of Case Conferences and Discovery in a Family Law Matter
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 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:
- Do remember that moving towards trial and trying to reach a settlement are not mutually exclusive approaches; although you may be taking steps to ready yourself for the eventual trial date, you can continue to try to negotiate a settlement with the other party, on one or more issues in the court proceeding, at the same time. Also, as you learn more about the strengths and weaknesses of the other party’s case and the strengths and weaknesses of your own, be sure to reconsider your settlement options. Settlement discussions remain an available approach even though you are scheduling a trial date.
- Be aware of your legal obligation to disclose information to the other party. Under section 5 of the Family Law Act each “party to a family law dispute provide to the other party full and true information for the purposes of resolving a family law dispute”. This means that as a party, you have to provide to the other party full and accurate information about your finances and other personal circumstances that are relevant to the issues in the court proceeding. If you don’t, any agreement or order entered into could be set aside on the basis of the false information, financial penalties may be awarded against you, and/or your credibility may be compromised if you find yourself in trial.
Except as otherwise noted, whether you are in Supreme Court or Provincial Court, the next steps are usually these:
- Exchange Financial Statements. Financial Statements are required whenever the division of property or the payment of support is at issue. Financial Statements are prepared in Form 8. Financial Statements must be exchanged before the first judicial case conference, and updated statements will be required throughout the case and before trial. These are discussed in more detail further on in this section.
- Attend a Case Conference. In Supreme Court, parties must attend a Judicial Case Conference (often referred to as a JCC) and is required to take place before most interim applications can be brought. JCCs are informal, off-the-record meetings between the parties, their lawyers and a judge intended to talk about areas of agreement and disagreement, and set dates and deadlines for the remaining steps in the litigation. JCCs are discussed in more detail further on in this section. In Provincial Court, parties are not required to attend a Family Case Conference (often referred to as an FCC), although judges may order the parties to attend one if guardianship, parenting arrangements or contact with a child are contested. In practice, many judges will order the parties to attend a Family Case Conference if the parties ask to attend one. FCCs are discussed in more detail further in this section.
- Make interim applications as needed. In almost all cases, parties need the court to decide certain issues on a temporary basis until the trial can be heard. Typically, people need a set of rules to guide them until the claims at issue in the court proceeding are finally determined by settlement or trial. The most common interim applications in family law cases involve financial and personal restraining orders, the care and control of the children, the payment of child support and spousal support, protection orders and orders for document production. This chapter discusses the process for bringing interim applications in the section Interim Applications in Family Matters.
- Disclose documents and information. In the Supreme Court, the rules of court require each party to produce to the other all documents that are relevant to the issues in a court proceeding. Each party must list these documents in a formal List of Documents, and update their List of Documents when new documents are found or become available. Lists of Documents in Supreme Court are discussed in more detail later in this chapter (see Discovery Process in a Family Law Matter). The Provincial Court Rules do not have comparable requirements, but each party can ask the other to produce financial and other information that is relevant to the matters at issue in the court proceeding. Relevant documents can include things like bank statements, credit card statements, property tax assessments, mortgage documents, report cards, medical records, school reports, and income tax returns. If you think that there are documents necessary to prove your case that the other party is not producing willingly, then you may need to make an interim application to the court (as discussed at point 3 above).
- 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).
- 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 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.
- 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.
- Provincial Court Act
- Provincial Court Family Rules
- Supreme Court Act
- Supreme Court Family Rules
- Court Rules Act
- Provincial Court Family Practice Directions
- Supreme Court Family Practice Directions
- Supreme Court Administrative Notices
- Supreme Court Trial Scheduling
|The above was last reviewed for legal accuracy by Shannon Aldinger, June 8, 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.|