Post by litigator on Apr 12, 2007 20:56:22 GMT -5
Subrule 17(8) of the Family Law Rules addresses the circumstances in which an Order may be made at a Conference, as follows:
(8) At a case conference, settlement conference or trial management conference, the judge may, if it is appropriate to do so,
a) make an order for document disclosure (rule 19), questioning (rule 20)
or filing of summaries of argument on a motion, set the times for
events in the case or give directions for the next step or steps in the
case;
a.1)order that the evidence of a witness at trial be given by affidavit;
b) if notice has been served, make a temporary or final order;
c) make an unopposed order or order on consent; and
d) on consent, refer any issue for alternative dispute resolution.
Essentially, the only Orders that may be made at a Conference are those that are procedural, unless the Order is unopposed or on consent. The exception is an Order in respect of which notice has been served. Despite the express contemplation of such an Order, it is my experience that the Court is reluctant to make a contested substantive Order at a conference.
Other situations to consider include:
1. invoking rule 19: Subrule 19(1) provides that every party shall, within ten days after another party’s request, give the other party an affidavit of documents.
Subrule 19(2) confirms that a party is entitled, on request, to access to documents and to copies of documents listed in the affidavit of documents at his/her own cost. Subrule 19(3) provides that subrule (2) applies, with necessary changes, to a
document mentioned in a party’s pleadings, Notice of Motion, financial statement, or net family property statement. Note that the language of subrules
(1) and (2) is mandatory, and that no test has to be met before compliance will be expected. There is no form specific to Rule 19. Consequently, any request should be made by letter. I would recommend confirming at the end of your letter that the request is made pursuant to Rule 19, and that it will be treated as notice
and relied upon in support of any request for an Order that may be made at a conference, in the event that compliance does not occur voluntarily.
Use your Conference to request:
a. any assessment or appointment of the Office of the Children’s Lawyer that may be necessary;
b. disclosure of documents, the questioning of witnesses, a property valuation or an Order for “any other matter”; or
c. any other procedural Orders.
(8) At a case conference, settlement conference or trial management conference, the judge may, if it is appropriate to do so,
a) make an order for document disclosure (rule 19), questioning (rule 20)
or filing of summaries of argument on a motion, set the times for
events in the case or give directions for the next step or steps in the
case;
a.1)order that the evidence of a witness at trial be given by affidavit;
b) if notice has been served, make a temporary or final order;
c) make an unopposed order or order on consent; and
d) on consent, refer any issue for alternative dispute resolution.
Essentially, the only Orders that may be made at a Conference are those that are procedural, unless the Order is unopposed or on consent. The exception is an Order in respect of which notice has been served. Despite the express contemplation of such an Order, it is my experience that the Court is reluctant to make a contested substantive Order at a conference.
Other situations to consider include:
1. invoking rule 19: Subrule 19(1) provides that every party shall, within ten days after another party’s request, give the other party an affidavit of documents.
Subrule 19(2) confirms that a party is entitled, on request, to access to documents and to copies of documents listed in the affidavit of documents at his/her own cost. Subrule 19(3) provides that subrule (2) applies, with necessary changes, to a
document mentioned in a party’s pleadings, Notice of Motion, financial statement, or net family property statement. Note that the language of subrules
(1) and (2) is mandatory, and that no test has to be met before compliance will be expected. There is no form specific to Rule 19. Consequently, any request should be made by letter. I would recommend confirming at the end of your letter that the request is made pursuant to Rule 19, and that it will be treated as notice
and relied upon in support of any request for an Order that may be made at a conference, in the event that compliance does not occur voluntarily.
Use your Conference to request:
a. any assessment or appointment of the Office of the Children’s Lawyer that may be necessary;
b. disclosure of documents, the questioning of witnesses, a property valuation or an Order for “any other matter”; or
c. any other procedural Orders.