Judicial Case Conferences. I. Requirement to Attend Judicial Case Conference

Transcription

1 USING CONFERENCES EFFECTIVELY [ 0.0] Judicial Case Conferences Judicial case conferences ( JCCs ) are in camera, without prejudice meetings of the parties, their lawyers, and a judge or master. JCCs are mandatory in all contested Supreme Court family law actions. The primary purposes of the JCC are to review the matters in dispute; canvass areas of agreement and disagreement; explore settlement aids and options; and schedule pre-trial procedures, such as dates for disclosure, discoveries, and trial. I. Requirement to Attend Judicial Case Conference Under the judicial case conference rule (Rule 60E), parties to a family law proceeding must attend a judicial case conference before either party can deliver a notice of motion or affidavit in support of an interim application (Rule 60E(1)). This provides an opportunity for the parties to meet informally at an early stage in the proceeding to discuss the case in a private setting. Certain interim applications are exempt from the requirement that a JCC be held before they can be heard (Rule 60E(2)): (1) applications for relief under s. 57 of the FRA (a declaration that the parties are unable to reconcile); 5/06 0-1

2 [ 0.3] B.C. FAMILY PRACTICE MANUAL (2) applications for property and financial restraining orders under s. 67 of the FRA; (3) applications by consent; and (4) applications being made without notice. In all other cases, a party seeking to avoid this requirement must apply for exemption. Relief from the requirement will be granted where: (1) it is premature to attend the conference; (2) it is impractical or unfair to require attendance; (3) the application sought is urgent; (4) delaying the application sought or requiring a party to attend a JCC may be dangerous to a person s health or safety; or (5) the court considers an exemption appropriate; Rule 60E(3). To apply for exemption, a party can file a requisition, with or without notice, supported by a letter signed by counsel or a party setting out the reasons for seeking the exemption (Rule 60E(4)). See FP 50 for a sample requisition. The judge or master, the parties, and the parties counsel must attend the judicial case conference; where necessary, attendance may be by telephone. JCCs are not open to the public. All discussions at the JCC are confidential and any statements made by the parties cannot be used against them in the litigation. In general, the judge who sits at a JCC will not hear subsequent contested applications or the trial, to avoid any apprehension of bias (see W. (N.L.) v. W. (T.M.), 2006 BCSC 905). The JCC will usually complete in a single hearing. Where the parties are close to settlement, the judge or master may order that the JCC be adjourned and continued at a later date. When a JCC is adjourned, counsel may seek liberty to bring one or more applications for hearing before resuming the JCC. Once the JCC has concluded, litigation will continue in the usual manner. Counsel may schedule additional JCCs when appropriate /06

3 USING CONFERENCES EFFECTIVELY [ 0.4] I. Procedure to Arrange a Judicial Case Conference [ 0.1] Either party to a family law proceeding can request a judicial case conference. The party seeking to schedule the JCC obtains the other counsel s available dates and then telephones the trial registry to book the date and time. The party requesting the JCC prepares, files, and serves a requisition and notice of judicial case conference in Form 145 (Rule 60E(5); see FP 51). Where appropriate, the JCC can be scheduled without consultation and the requisition and notice served with the writ of summons and statement of claim. The requisition and the client s Form 89 financial statement must be served on all other parties at least 30 days before the date set for the JCC (Rule 60E(6)). The party requesting the JCC and any party served with a Form 145 requisition and notice must file the original Form 89 financial statement at least seven days before the date set for the JCC (Rule 60E(7.1) and (7.2)). A judge or master can also direct that a JCC be held and that a party prepare and serve the Form 145 (60E(7)). II. Preparing for the Conference [ 0.2] As with any other step in the litigation process, preparation is the key to success at a judicial case conference. Counsel should: (1) review the pleadings; (2) review correspondence exchanged to date; (3) review both parties financial statements; (4) identify the issues on which the parties agree or are close to agreement; (5) identify critical steps that must be taken before settlement is possible, such as the appraisal of real property, the valuation of a business, or the preparation of a custody and access report; and (6) arrange to discuss the issues with opposing counsel. At the JCC, counsel must be able to give the judge or master a brief outline of the facts and issues in the proceeding. If the relevant facts of the parties relationship are lengthy or complex, it may be helpful to prepare a written 5/07 0-3

4 [ 0.4] B.C. FAMILY PRACTICE MANUAL chronology of events for the judge or master. The chronology should not include facts that are in dispute or are controversial /07

5 USING CONFERENCES EFFECTIVELY [ 0.6] While not required under Rule 60E, counsel may wish to prepare a conference brief that presents the client s history and position on the issues. Avoid including inflammatory allegations. Briefs will be particularly helpful when the issues or underlying facts are complex. Briefs, chronologies, and any other material counsel intend to provide to the judge or master hearing the JCC should be exchanged before the conference. Counsel should prepare the client for the JCC by explaining the nature and purpose of the conference and the prospect of full or partial settlement. The client should be told that the court cannot make orders at the JCC, other than orders on procedural matters, without the client s consent. The client should also be told that the judge or master may ask the client questions, and that he or she should be prepared to speak at the conference. Finally, the client should be advised that the JCC is not an adversarial forum, and the judge or master who hears the JCC is unlikely to preside over any further hearings in the action. The lawyer and client should review the Litigants Guide and Case Management Plan Worksheet from Schedule B of Family Law Practice Direction #6 (FP 52). III. Attending at the Judicial Case Conference [ 0.3] Unless a judge or master orders otherwise, each party and their counsel must attend a judicial case conference (Rule 60E(9)). If a party who received notice of the JCC fails to attend, the judge or master may proceed in that party s absence, adjourn the JCC, or order that the party who failed to appear pay the other party s costs (Rule 60E(10)). Where necessary, a party may attend the JCC by telephone with leave. The procedure at the conference will depend on the issues in the case and the judge or master involved. The JCC may be conducted as a settlement conference, with the judge or master actively dealing with the substantive issues and encouraging the parties to settle them, or it may proceed as a case management conference, with counsel and the parties setting deadlines for discovery, production, and other pre-trial procedures with little intervention or direction from the court. The judge or master may sit with the parties and counsel at a common table or may elect to hear the conference from the bench. 5/07 0-5

6 [ 0.7] B.C. FAMILY PRACTICE MANUAL In most cases, counsel for the plaintiff will be asked to give an overview of the case and the issues in dispute after a brief welcome by the judge or master. The plaintiff may be asked whether he or she has anything to add. Counsel for the defendant will then give the defendant s view of the case, and the defendant will be asked for comment. Following these introductory remarks, the JCC will move into a less structured discussion of the issues. Note that while JCCs are conducted in camera and without prejudice, a recording is nonetheless made of the proceedings. This recording will generally be of use only where a settlement is reached at the JCC and later disputed. It may be difficult to obtain a transcript of the recording. At the conclusion of the JCC, the court clerk will print out the judicial case conference case management plan, a record of any orders or directions made by the judge or master. The case management plan is not a substitute for an order. An order must be drawn by counsel and entered in the usual course (Harrison v. Harrison, 2007 BCCA 120). The parties, their lawyers, and the judge or master will review and endorse the case management plan. One copy of the case management plan will be kept in the court file and counsel will each receive a copy. Note that the costs of attending judicial case conferences have been added to Item 23 of the Tariff of Appendix B (B.C. Reg. 120/2006, Schedule 2, s. 2). IV. Relief Available at the Judicial Case Conference [ 0.4] The judge or master at a judicial case conference may make a variety of procedural orders, with or without the consent of the parties, including orders that: (1) the pleadings be amended or closed within a fixed time; (2) a party deliver a Form 89 financial statement or a list of documents within a fixed time; (3) interim applications be brought on a fixed date; (4) disclosure be made on a schedule directed by the court; (5) discoveries proceed on a schedule directed by the court; (6) expert reports be exchanged on a schedule directed by the court; 0-6 5/07

7 0.0.1 (7) the parties attend a mini-trial or settlement conference; and (8) a trial date be set; (Rule 60E(12)). The judge or master may order that he or she be seized of all interlocutory applications in a proceeding (Rule 60E(13)), and that further JCCs be held. Additional conferences can be scheduled at the first conference or later through trial division. The judge or master can also make any other orders by consent of the parties (Rule 60E(12)). Such orders may include interim orders for child support, spousal support, custody, guardianship and access, declarations of irreconcilability, and occupancy of the family home. Such orders may be made without prejudice to either party s ability to apply to vary or set aside the order without first establishing a change of circumstances, or pending production of further financial information. Some judges may also make an unopposed divorce order at a JCC. To obtain this order, the original marriage certificate or certificate of registration of the marriage must be in the court file, a registrar s certificate of pleadings must be filed and processed, and evidence in support of the divorce order must be available or led at the conference. See also 3.9, which discusses granting a divorce before other corollary relief.