Post by litigator on Apr 26, 2007 7:13:15 GMT -5
The Case Conference
Subrule 17(4) of the Family Law Rules sets out the purposes of a Case Conference, as
follows:
The purposes of a case conference include,
a) exploring the chances of settling the case;
b) identifying the issues that are in dispute and those that are not in dispute;
c) exploring ways to resolve the issues that are in dispute;
d) ensuring disclosure of the relevant evidence;
e) noting admissions that may simplify the case;
f) setting the date for the next step in the case;
g) if possible, having the parties agree to a specific timetable for the steps to be taken in the case before it comes to trial;
h) organizing a settlement conference, or holding one if appropriate; and
i) giving directions with respect to any intended motion, including the preparation of a specific timetable for the exchange of material for the motion and ordering the filing of summaries of argument, if appropriate.”
In practical terms, there are at least two additional purposes—the first is to get an application off the ground, the second is to keep it alive.
In the first scenario, the primary purpose of a Case Conference may be to clear the way to being able to bring a motion, since subrule 14(4) provides that:" No notice of motion or supporting evidence may be served and no motion may be heard before a case conference dealing with the substantive issues in the case has been completed.”
If one of the objectives of your Case Conference is to be able to bring a motion, ensure that the judge endorses the record at the completion of your Conference to confirm that a Case Conference was held on the matters of particular concern. You will then be in a proper position to proceed to a motion, without risk of argument of whether you are entitled to do so. Consider also whether you want to ask for any directions in respect of the motion, such as notice greater than the four days contemplated by subrule 4(11).
The Settlement Conference
Subrule 17(5) of the Family Law Rules sets out the purposes of a Settlement Conference,
as follows:
(5) The purposes of a settlement conference include,
a) exploring the chances of settling the case;
b) settling or narrowing the issues in dispute;
c) ensuring disclosure of the relevant evidence;
d) noting admissions that may simplify the case;
e) if possible, obtaining a view of how the court might decide the case;
f) considering any other matter that may help in a quick and just
conclusion of the case;
g) if the case is not settled, identifying the witnesses and other evidence to be presented at trial, estimating the time needed for trial and scheduling the case for trial; and
h) organizing a trial management conference, or holding one if
appropriate. As the name suggests, this Conference is settlement oriented. Whether settlement discussions can meaningfully occur will often be governed by whether full disclosure has been exchanged. Obviously, if the supporting documentation of the entries on a Net Family Property Statement has not been exchanged, or if a necessary expert report is unavailable, any settlement discussions will be preliminary. Consequently, if your theory in scheduling a Settlement Conference is to attempt to settle the case, you need to ensure that all of the relevant disclosure is first in place.
In many cases, the agenda for scheduling a Settlement Conference may be a combination
of the following:
1. obtaining a longer appointment than would be available for a Case Conference. In Newmarket, for example, a Case Conference attendance is booked for ½ hour, whereas a Settlement Conference is booked for a full hour;
2. identifying the main issues, the non-issues, and the peripheral issues, and assessing whether there is commonality between the parties in this categorization. This information is key to separating the threads of conflict into a “win-win” settlement;
3. trying to elicit input from the Court on the merits of your client’s case, and, ideally, favourable recommendations. This is a prime opportunity to advance your client’s case and to cast doubt upon, at least, some aspect of the other party’s case. Any judicial validation that a party receives will stay with him/her for the duration of the case. Make certain that your client’s voice is“heard”. If nothing else is accomplished, your client needs to go home
The Trial Management Conference
Subrule 17(6) of the Family Law Rules sets out the purposes of a Trial Management
Conference, as follows:
(6) The purposes of a trial management conference include,
a) exploring the chances of settling the case;
b) arranging to receive evidence by a written report, an agreed statement of facts, an affidavit or another method, if appropriate;
c) deciding how the trial will proceed;
d) ensuring that the parties know what witnesses will testify and what other evidence will be presented at trial;
e) estimating the time needed for trial;
f) setting the trial date, if this has not already been done.
In my experience, the application of this subrule depends upon the jurisdiction. Some Courts focus on continued settlement discussions, unless and until it becomes apparent
that the focus needs to shift to organizing for trial. In Newmarket, the Trial Management Conference largely involves the completion of “green forms”, the focus of which is
procedural and evidentiary. Once counsel complete the form (together, prior to being reached for the Trial Management Conference attendance), the Court reviews it, and revises it as appropriate. The form, as finalized, becomes the Trial Management Endorsement. Paragraph 16 of the green form is of critical importance, and reads as follows:
□ Parties shall comply with directions and dates set out above. Consent changes may be requested by motion form (14B).
□ There shall be no further motions without permission obtained from the case management judge.
□ No exhibits may be relied on at trial other than those disclosed as above without a court order obtained from the case management judge or trial judge.
□ No witnesses shall be called other than the witnesses on the witness list as outlined above unless a court order is obtained from the case management judge or the trial judge.
At the conclusion of the Trial Management Conference, the judge will tick off each of the boxes appearing at paragraph 16. The Endorsement must be placed in the trial record, as it is an Order relating to the trial. Given the finality of the green form, it makes sense to build in flexibility to the answers. For example, you might not be in a position to provide a comprehensive witness list, although you know that a witness will be called in respect of a certain issue. In that instance, you would say what you know, and confirm the date by which the outstanding information will be provided. Regardless of what the green form says, it appears to me that deadlines are enforced no more forcefully than in conjunction with any other step.
The Exit Pre-Trial Conference
This Conference is not contemplated by the Family Law Rules. In practice, however, it is mandatory in Courts including Newmarket. This attendance appears to be the corollary of the Trial Management Conference in Toronto, for example, where the objective is to explore earnestly the opportunities of settlement. There is no prescribed form to be completed for this Conference. Rather, the expectation is that you will complete a two page summary of the essential issues, to be delivered to your opposing counsel and filed two days in advance. There is no formal service requirement, and filing can occur by fax
directly to the Trial Co-ordinator, if arranged. You may want to schedule more than one of these Exit Pre-Trial Conferences, if the discussions are productive. Procedurally, you do so by asking for a continued Conference at the conclusion of the first, and booking through the Trial Co-ordinator.
Subrule 17(4) of the Family Law Rules sets out the purposes of a Case Conference, as
follows:
The purposes of a case conference include,
a) exploring the chances of settling the case;
b) identifying the issues that are in dispute and those that are not in dispute;
c) exploring ways to resolve the issues that are in dispute;
d) ensuring disclosure of the relevant evidence;
e) noting admissions that may simplify the case;
f) setting the date for the next step in the case;
g) if possible, having the parties agree to a specific timetable for the steps to be taken in the case before it comes to trial;
h) organizing a settlement conference, or holding one if appropriate; and
i) giving directions with respect to any intended motion, including the preparation of a specific timetable for the exchange of material for the motion and ordering the filing of summaries of argument, if appropriate.”
In practical terms, there are at least two additional purposes—the first is to get an application off the ground, the second is to keep it alive.
In the first scenario, the primary purpose of a Case Conference may be to clear the way to being able to bring a motion, since subrule 14(4) provides that:" No notice of motion or supporting evidence may be served and no motion may be heard before a case conference dealing with the substantive issues in the case has been completed.”
If one of the objectives of your Case Conference is to be able to bring a motion, ensure that the judge endorses the record at the completion of your Conference to confirm that a Case Conference was held on the matters of particular concern. You will then be in a proper position to proceed to a motion, without risk of argument of whether you are entitled to do so. Consider also whether you want to ask for any directions in respect of the motion, such as notice greater than the four days contemplated by subrule 4(11).
The Settlement Conference
Subrule 17(5) of the Family Law Rules sets out the purposes of a Settlement Conference,
as follows:
(5) The purposes of a settlement conference include,
a) exploring the chances of settling the case;
b) settling or narrowing the issues in dispute;
c) ensuring disclosure of the relevant evidence;
d) noting admissions that may simplify the case;
e) if possible, obtaining a view of how the court might decide the case;
f) considering any other matter that may help in a quick and just
conclusion of the case;
g) if the case is not settled, identifying the witnesses and other evidence to be presented at trial, estimating the time needed for trial and scheduling the case for trial; and
h) organizing a trial management conference, or holding one if
appropriate. As the name suggests, this Conference is settlement oriented. Whether settlement discussions can meaningfully occur will often be governed by whether full disclosure has been exchanged. Obviously, if the supporting documentation of the entries on a Net Family Property Statement has not been exchanged, or if a necessary expert report is unavailable, any settlement discussions will be preliminary. Consequently, if your theory in scheduling a Settlement Conference is to attempt to settle the case, you need to ensure that all of the relevant disclosure is first in place.
In many cases, the agenda for scheduling a Settlement Conference may be a combination
of the following:
1. obtaining a longer appointment than would be available for a Case Conference. In Newmarket, for example, a Case Conference attendance is booked for ½ hour, whereas a Settlement Conference is booked for a full hour;
2. identifying the main issues, the non-issues, and the peripheral issues, and assessing whether there is commonality between the parties in this categorization. This information is key to separating the threads of conflict into a “win-win” settlement;
3. trying to elicit input from the Court on the merits of your client’s case, and, ideally, favourable recommendations. This is a prime opportunity to advance your client’s case and to cast doubt upon, at least, some aspect of the other party’s case. Any judicial validation that a party receives will stay with him/her for the duration of the case. Make certain that your client’s voice is“heard”. If nothing else is accomplished, your client needs to go home
The Trial Management Conference
Subrule 17(6) of the Family Law Rules sets out the purposes of a Trial Management
Conference, as follows:
(6) The purposes of a trial management conference include,
a) exploring the chances of settling the case;
b) arranging to receive evidence by a written report, an agreed statement of facts, an affidavit or another method, if appropriate;
c) deciding how the trial will proceed;
d) ensuring that the parties know what witnesses will testify and what other evidence will be presented at trial;
e) estimating the time needed for trial;
f) setting the trial date, if this has not already been done.
In my experience, the application of this subrule depends upon the jurisdiction. Some Courts focus on continued settlement discussions, unless and until it becomes apparent
that the focus needs to shift to organizing for trial. In Newmarket, the Trial Management Conference largely involves the completion of “green forms”, the focus of which is
procedural and evidentiary. Once counsel complete the form (together, prior to being reached for the Trial Management Conference attendance), the Court reviews it, and revises it as appropriate. The form, as finalized, becomes the Trial Management Endorsement. Paragraph 16 of the green form is of critical importance, and reads as follows:
□ Parties shall comply with directions and dates set out above. Consent changes may be requested by motion form (14B).
□ There shall be no further motions without permission obtained from the case management judge.
□ No exhibits may be relied on at trial other than those disclosed as above without a court order obtained from the case management judge or trial judge.
□ No witnesses shall be called other than the witnesses on the witness list as outlined above unless a court order is obtained from the case management judge or the trial judge.
At the conclusion of the Trial Management Conference, the judge will tick off each of the boxes appearing at paragraph 16. The Endorsement must be placed in the trial record, as it is an Order relating to the trial. Given the finality of the green form, it makes sense to build in flexibility to the answers. For example, you might not be in a position to provide a comprehensive witness list, although you know that a witness will be called in respect of a certain issue. In that instance, you would say what you know, and confirm the date by which the outstanding information will be provided. Regardless of what the green form says, it appears to me that deadlines are enforced no more forcefully than in conjunction with any other step.
The Exit Pre-Trial Conference
This Conference is not contemplated by the Family Law Rules. In practice, however, it is mandatory in Courts including Newmarket. This attendance appears to be the corollary of the Trial Management Conference in Toronto, for example, where the objective is to explore earnestly the opportunities of settlement. There is no prescribed form to be completed for this Conference. Rather, the expectation is that you will complete a two page summary of the essential issues, to be delivered to your opposing counsel and filed two days in advance. There is no formal service requirement, and filing can occur by fax
directly to the Trial Co-ordinator, if arranged. You may want to schedule more than one of these Exit Pre-Trial Conferences, if the discussions are productive. Procedurally, you do so by asking for a continued Conference at the conclusion of the first, and booking through the Trial Co-ordinator.