Provincial Court Case Conferences

Transcription

1 FAMILY LAW CONFERENCE 2015 PAPER 2.3 Provincial Court Case Conferences These materials were prepared by The Honourable Judge Patricia Bond of the Provincial Court of BC, Surrey, BC, for the Continuing Legal Education Society of British Columbia, July Patricia Bond

2 2.3.1 PROVINCIAL COURT CASE CONFERENCES I. Purpose of a Family Case Conference... 1 II. Family Case Conferences Rules and Practicalities... 1 III. Tips for Family Case Conferences in Provincial Court... 3 IV. CFCSA Case Conferences... 5 Case conferences have been initiated mainly through judicial impetus. Whether this has been inspired by a recognition of the need to deal with matters that could be in whole or in part settled without the necessity of court hearings, or whether it is an attempt to identify and provide input into issues and positions before the parties become entrenched, it is nonetheless an important part of our pre-trial process in both the Provincial and Supreme Courts. Although family case conferences in Provincial Court are not mandatory, they are routinely ordered prior to scheduling a family law hearing. I. Purpose of a Family Case Conference To identify the issues agreed to and those in dispute; to promote settlement of some or all of the issues; to test the theory of your case; to gain the judge s perspective; to give your client their day in court; to fulfil the legal requirement so one can proceed with litigation. II. Family Case Conferences Rules and Practicalities The Provincial Court (Family) Rules 1 provide that a judge may at a first or subsequent court hearing set a date for a family case conference (Rule 6(3)(f)). The actual conference is governed by Rule 7, which provides that if guardianship, parenting arrangements or contact with a child are contested, a judge may order the parties to attend a family case conference. It is not common to deal with support issues at family case conferences. Rule 7(3) provides that a child or person who is not a party to a proceeding may attend the conference with the permission of the judge. Children very rarely participate in case conferences, however, it is not as rare to have an unrepresented person attend with a friend or relative to support 1 BC Reg. 417/98.

3 2.3.2 them. Typically this is permitted if there is no objection. It is at the judge s discretion if there is an objection. Rule 7(4) sets out what the judge presiding at the conference may do, including: mediate any of the issues in dispute; (b) decide any issues that do not require evidence; (c) make a conduct order under Division 5 of Part 10 of the Family Law Act, including: (i) requiring the parties to participate in family dispute resolution; or (ii) requiring one or more parties or, with or without the consent of the child s guardian, a child, to attend counselling specified services or programs; (d) if the regional manager has advised the court in writing that the person is readily available, refer the parties to a family justice counsellor or to a person designated by the Attorney General to provide specialized support assistance; (e) adjourn the case for the purposes of paragraph (c) or a referral under paragraph (d); (f) make an order to which all 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 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 sub-rules 7(4) and (5) suggest that the judge can grant orders without the consent of the parties, it has been held that rulings on contested substantive issues must not be made without first affording the parties the opportunity to tender evidence, test the opposing party s evidence and make submissions. 2 See David Dundee s paper titled Case Conferences: Procedural and Jurisdictional Overview 3 for a review of the case law on making decisions on substantive issues, Orders That Do Not Require Evidence, Hearing Subsequent Applications and the Inherent Jurisdiction of the Provincial Court. Rule 7(5) provides that orders can be made under Rule 7(4), even though one or more of the parties fails to attend the conference. The content of a family case conference is privileged. The conferences are not recorded and no records are made of discussions unless an agreement is reached, in which case a document will be prepared outlining the agreement, and it will be signed by each party and the judge. In some 2 Lower v. Stasiuk, 2006 BCSC 864 (at para. 25). 3 Presented at CLEBC, Family Law Settlements: Reaching and Recording Compromise, September 2009.

4 2.3.3 Provincial Court Registries we have smart forms which are typed up at the time and then entered that day as a court order. Family case conferences are set for an hour. They can go longer, but they are usually booked back to back. This does not leave much time, but it is possible to quickly caucus with your client if it appears necessary and beneficial. Generally, the judge will step out while that is done. If one hour is not sufficient, a further conference can be scheduled, and the judge can be seized. When protection orders or bail conditions have been imposed, they will prohibit contact between the parties. Unless exceptions are made for attendances in court, the restricted party could face criminal sanctions for breaching the order or conditions by attending a case conference. If arrangements are not made in advance of a case conference to deal with this issue, valuable time can be lost confirming that charges will not be pursued. (1) Prepare yourself: (b) III. Tips for Family Case Conferences in Provincial Court know the issues; know the relevant facts; (c) file and serve your client s financial statement, if appropriate 4 ; (d) (e) (f) (g) (h) (i) (j) (k) (l) (2) Prepare your client: identify disclosure issues that can be addressed for or against your client; identify any deficiencies in the pleadings that can be addressed; prioritize your client s issues that might be dealt with, from minor, practical issues such as signing authorizations to travel, or passports, to the major issues; identify potential barriers to settlement; call counsel on the other side to discuss the issues, disclosure; agreements, an agenda and potential for settlement; if the party on the other side is self represented, ensure that he or she is informed about the purpose of a case conference; potential orders that can be made; the issues you have identified and your client s position, the obligation to disclose, and any orders you will be asking the judge to make; if a protection order has been granted, or one of the parties is subject to bail conditions restricting contact, ensure exceptions are in place to permit contact for the purpose of the conference; if you have reached consent on any issues, have draft terms prepared; and identify any legal or factual issues you want the judge to comment on (for or against your client). review the purpose of the family case conference; 4 Even though financial issues are not dealt with in Family Case Conferences, orders for disclosure can be made.

5 (b) (c) (d) (e) (f) (g) (h) (i) (j) (k) (l) review orders that can be made by the judge (including if your client does not show up), and the limitations of a family case conference; review the issues raised by all sides; ensure your client has provided appropriate disclosure and if not review what is required and when your client can provide it; advise your client of what typically happens at a conference; ensure he/she is advised as to possible outcomes of the issues at trial; advise your client on potential settlement options and alternatives, including the costs of litigation both personal and financial; encourage your client to be flexible and open to hearing and discussing settlement options; let he/she know their participation will be welcomed; advise he/she they must treat the other side with respect, and listen to what is said; advise your client that the conference will be privileged and what that means, and that the judge will not be the trial judge if the matter proceeds; advise your client of the appropriate dress for court, and other protocols, including cell phones, food/beverages, etc. (3) Have a plan or strategy for settlement, starting with the less controversial issues. (4) Have a plan or strategy for dealing with delay or avoidance by the other side: (b) (c) deal with disclosure by setting dates; deal with issue of experts; set dates for a mediation, hearing, pre-trial conference or trial; Note that the court can make any order that can be made at a pre-trial conference under Rule 8(4). (5) If either party is stuck in their position, strategize how to communicate this to the judge in a manner that gives the judge enough information about the issues without inflaming matters. (6) Summarize any information that will be helpful, such as past contact or parenting time schedules; particulars of late delivery to school; etc. (7) Consider requesting a further family case conference if there is some appetite for settlement. (8) Do not: (b) (c) (d) prepare a brief that is aggressively adversarial; make personal attacks against the other side or their counsel or use inflammatory language; concentrate only on what your client wants to hear, but rather take the opportunity to ensure your client also hears what he or she needs to hear; present an agenda or brief without providing it well in advance to the other side, particularly if they are unrepresented;

6 2.3.5 IV. CFCSA Case Conferences Child and Family and Community Services Act case conferences are governed by Rule 2 of the Provincial Court (Child Family and Community Service Act) Rules. 5 Section 2(1) provides that if at the commencement of a protection hearing a consent order is not made and the matter cannot be heard that day, the judge must direct the parties and their lawyers to attend a case conference. The parties can request or be directed to attend case conferences at other times in the litigation, if the court deems it appropriate. Of course, the parties and their counsel are entitled pursuant to Rule 2(8) to attend the conference, however, it is not uncommon to have others attend, as well, including individuals from the community who are supportive of one or both of the parties, other family members involved in the care of the child(ren), or the child(ren), where appropriate. The attendance of non-parties is permitted at the judge s discretion. Rule 2(5) sets out what the judge can do at the case conference: facilitate the resolution of any issues in dispute; (b) mediate any issues in dispute, other than the issue of whether the child needs protection; (c) with the consent of the parties, refer any issue, other than the issue of whether a child needs protection, to mediation or other alternative dispute resolution mechanism under s. 22 of the Act; (d) decide any issues that do not require evidence or that can be decided on the basis of facts agreed to by the parties; (e) make any order in the terms the parties agree to subject to section 60 of the Act; (f) review the adequacy of disclosure by the parties including responses to requests for disclosure under s. 64 of the Act; (g) order that a party provide to another party, within a set time, a summary of the intended evidence of a potential witness; (h) order a party to allow another party to inspect and copy specific documents or records to the extent permitted by the Act; (i) order that those applications that cannot be made at the case conference be brought within a set time; (j) (k) order that a statement of agreed facts be filed within a set time; give directions about any evidence that will be required, how it will be received and the procedure that will be followed, if a hearing is necessary or a mini-hearing is directed; (l) order a party to produce anything as evidence at a hearing; (m) direct that any further case conference be held before the same judge; (n) with the consent of the parties, direct the parties to attend a mini-hearing if (i) the matter can be resolved on the basis of limited evidence and submissions, and (ii) a mini-hearing can be held earlier than the matter could be set for a full hearing; (o) without hearing witnesses, give a non-binding opinion on the probable outcome of a hearing; (p) set a date for a hearing or mini-hearing; (q) make any other order or give any direction for the fair and efficient resolution of the issues. The same tips set out above can be applied to CFCSA case conferences. 5 BC Reg. 533/95.