Overview of Case Conferences and Discovery in Family Law Matters

From Clicklaw Wikibooks

Whether you're off to trialThe testing of the claims at issue in a court proceeding at a formal hearing before a judge with the jurisdiction to hear the proceeding. The parties present their evidence and arguments to the judge, who then makes a determination of the parties' claims against one another that is final and binding on the parties unless appealed. See "action," "appeal," "argument," "claim," "evidence" and "jurisdiction." or a settlementA resolution of one or more issues in a court proceeding or legal dispute with the agreement of the parties to the proceeding or dispute, usually recorded in a written agreement or in an order that all parties agree the court should make. A court proceeding can be settled at any time before the conclusion of trial. See "action," "consent order," "family law agreements" and "offer." can be reached, the steps until trial involve attending case conferences and taking steps to discover the other partyIn law, a person named as an applicant, claimant, respondent or third party in a court proceeding; someone asserting a claim in a court proceeding or against whom a claim has been brought. See "action" and "litigant."’s case (the evidenceFacts or proof of facts presented to a judge at a hearing or trial. Evidence can be given through the oral testimony of witnesses, in writing as business records and other documents, or in the form of physical objects. Evidence must be admissible according to the rules of court and the rules of evidence. See "circumstantial evidence," "hearsay," and "testimony." and arguments of the other party).

Case conferences involve opportunities for parties to meet with each other in front of a judgeA person appointed by the federal or provincial government to manage and decide court proceedings in an impartial manner, independent of influence by the parties, the government or agents of the government. The decisions of a judge are binding upon the parties to the proceeding, subject to appeal. to discuss the issues in the court proceedingA legal proceeding in which one party sues another for a specific remedy or relief, also called an "action," a "lawsuit" or a "case." A court proceeding for divorce, for example, is a proceeding in which the claimant sues the respondent for the relief of a divorce order. (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 caseIn law, a court proceeding; a lawsuit; an action; a cause of action; a claim. Also the historic decisions of the court. See "action," "case law, " "court proceeding," and "precedent.") 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:

  1. 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.
  2. Be aware of your legal obligationA duty, whether contractual, moral or legal in origin, to do or not do something. See "duty." 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 orderA mandatory direction of the court, binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. See "appeal," "consent order," "decision" and "declaration." 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 CourtA court established and staffed by the provincial government, which includes Small Claims Court, Youth Court and Family Court. The Provincial Court is the lowest level of court in British Columbia and is restricted in the sorts of matters it can deal with. It is, however, the most accessible of the two trial courts and no fees are charged to begin or defend a court proceeding. Small Claims Court, for example, cannot deal with claims larger than $25,000, and Family Court cannot deal with the division of family property or matters under the ''Divorce Act''. See "judge" and "jurisdiction.", the next steps are usually these:

  1. Exchange Financial Statements. Financial Statements are required whenever the division of propertySomething which can be owned. See "chattels" and "real 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.
  2. Attend a Case Conference. In Supreme CourtNormally referred to as the "Supreme Court of British Columbia," this court hears most court proceedings in this province. The Supreme Court is a court of inherent jurisdiction and is subject to no limits on the sorts of claims it can hear or on the sorts of orders it can make. Decisions of the Provincial Court are appealed to the Supreme Court; decisions of the Supreme Court are appealed to the Court of Appeal. See "Court of Appeal," "jurisdiction," "Provincial Court" and "Supreme Court of Canada.", 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 arrangementsA term under the ''Family Law Act'' which describes the arrangements for parental responsibilities and parenting time among guardians, made in an order or agreement. "Parenting arrangements" does not include contact. See "contact," "guardian," "parental responsibilities" and "parenting time." or contactA term under the ''Family Law Act'' that describes the visitation rights of a person who is not a guardian with a child. Contact may be provided by court order or by the agreement among the child's guardians who have parental responsibility for determining contact. See "guardian" and "parental responsibilities." 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.
  3. 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 supportMoney paid by one parent or guardian to another parent or guardian as a contribution toward the cost of a child's living and other expenses. and spousal supportMoney paid by one spouse to another spouse either as a contribution toward the spouse's living expenses or to compensate the spouse for the economic consequences of decisions made by the spouses during their relationship., protection orders and orders for document production. This chapter discusses the process for bringing interim applications in the section Interim Applications in Family Matters.
  4. Disclose documents and information. In the Supreme Court, the rules of courtThe guidelines governing the court process and the conduct of litigation generally. Each court has its own 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, mortgageThe conditional transfer of the title to real property by an owner to another person in return for money given by that person as a loan, while retaining possession of the property. The party to whom title is given, the "mortgagee," usually a bank, is allowed to register the title of the property in their name if the person taking the loan, the "mortgagor," fails to make the required payments. See "encumbrance" and "real property." 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 applicationAn application, also called in "interlocutory application," made after the start of a court proceeding but before its conclusion, usually for temporary relief pending the final resolution of the proceeding at trial or by settlement. In family law, interim applications are useful to determine issues like where the children will live, who will pay child support and whether spousal support should be paid on a rough and ready basis. See "application" and "interim order." to the court (as discussed at point 3 above).
  5. 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 discoveryThe cross-examination of a party under oath or affirmation about the matters at issue in a court proceeding conducted prior to trial. An examination for discovery is held outside court, with no one in attendance except for the parties, the parties' lawyers and a court reporter. The court reporter produces a transcript of the examination, which may, in certain circumstances, be used at trial. See "discovery.". Examinations for discoveryA step in a court proceeding in which a party may demand that the other party produce specific documents and submit to a cross-examination on oath or affirmation outside of court before trial. This process is regulated by the rules of court. The purpose of this step is to encourage the settlement of court proceedings and to make sure that each party knows what the other party's case will be trial. See "examination 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.
  6. 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), interrogatoriesWritten questions given by one party to a court proceeding to the other that must be answered on the party's affirmation or oath in affidavit form; part of the discovery process. See "discovery." (Rule 9-3), and pre-trial examination of witnesses (Rule 9-4).
  7. Have a settlement conference & make a settlement offerIn contact law, the expression, either orally or in writing, of a willingness to be bound by a proposed agreement, contract or settlement. See "offer to settle.". 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 their 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.
  8. Have a trial preparation or management conference. In Supreme Court, parties attend a trial management conference (TMC) which is a formal hearingIn law, any proceeding before a judicial official to determine questions of law and questions of fact, including the hearing of an application and the hearing of a trial. See "decision" and "evidence." 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 disclosureA step in a court proceeding in which each party advises the other of the documents in their possession which relate to the issues in the court proceeding and produces copies of any requested documents before trial. This process is regulated by the rules of court, which put each party under an ongoing obligation to continue to advise the other of new documents coming into their possession or control. The purpose of this step is to encourage the settlement of court proceedings and to prevent a party from springing new evidence on the other party at trial. 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 instructionsIn law, the directions given by a client to their lawyer about the conduct of their affairs or of a court proceeding.. Similar issues are discussed at a TPC as at a TMC. Both are discussed in more detail further in this section.
  9. 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 sections in this chapter on Preparing for Trial in Supreme and Provincial Court). At the trial, each side will call their witnesses to give evidence, cross-examine the witnesses of the other party, and give their argumentIn law, an attempt to persuade by logical reasoning. Usually refers to oral or written argument presented to a judge following the presentation of evidence, or to a written summary of 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 decisionIn law, a judge's conclusions after hearing argument and considering the evidence presented at a trial or an application; a judgment; the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as their findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law," and "findings of fact." in the form of reasons for judgmentA judge's conclusions after hearing argument and considering the evidence presented at a trial or an application; a decision, the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as their findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law," "findings of fact," and "final 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 proceedingIn law, the whole of the conduct of a court proceeding, from beginning to end, and the steps in between; may also be used to refer to a specific hearing or trial. See "action." 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 briefIn law, a written argument; a memorandum of law. A brief is usually presented to a judge as a summary of an argument or the law on a particular issue. Curiously, briefs are rarely brief. description.

For more information about case conferences, see Case Conferences in a Family Law Matter in this chapter. For more information about discovery, see Discovery Process in a Family Law Matter, also in this chapter.

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