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  • Writer's pictureJared Davies, Lawyer

What is a case conference?

As previously discussed, family lawyers are mandated to consider alternative dispute resolution processes such as mediation or arbitration where it is appropriate to do so. Though not part of ADR, the family court system in Ontario has its own ADR-esque process called a “case conference”, where the parties meet before a judge to discuss, among other things, the possibility of settling the case on a consensual basis. One of the main benefits of a case conference is the possibility that the parties will receive an opinion from a judge, which will hopefully guide them to a resolution.

The Family Law Rules make case conferences a mandatory first step. Except for rare circumstances, parties cannot bring a motion for any sort of temporary relief until the first case conference has been heard.

Rule 17 of the Family Law Rules clarifies the purpose of a case conference. While there are over 11 purposes outlined, the primary hope of the family law system is that the case settles at the conference if possible. However, if the case does not settle, then the conference is a great place to take care of “housekeeping” items in the court case, regarding things such as disclosure and the next procedural steps in the process. See the list below:

Rule 17: Purposes of case conference

(4) 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, including the disclosure of financial information required to resolve any support or property issue;
(d.1) identifying any issues relating to any expert evidence or reports on which the parties intend to rely at trial;
(e) noting admissions that may simplify the case;
(f) setting the date for the next step in the case;
(g) setting 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;
(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; and
(j) in the case of a motion to change a final order or agreement under rule 15, determining the most appropriate process for reaching a quick and just conclusion of the motion.

However, a case conference is different from other court proceedings like motions or trials because there are limited circumstances in which the case conference judge can actually make an order without the consent of the parties, as outlined below at sub-rule 17(8) of the Family Law Rules:

Rule 17: Orders at conference

(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.0.1) make an order about expert opinion evidence, including,
(i) the engagement of an expert by or for one or more parties,
(ii) the use of expert opinion evidence in a case, or
(iii) the provision, service or filing of experts’ reports or written opinions;
(a.1) make an order requiring the parties to file a trial management endorsement or trial scheduling endorsement in a form determined by the court;
(b) make an order requiring one or more parties to attend,
(i) a mandatory information program,
(ii) a case conference or settlement conference conducted by a person named under subrule (9),
(iii) an intake meeting with a court-affiliated mediation service, or
(iv) a program offered through any other available community service or resource;
(b.1) if notice has been served, make a final order or any temporary order, including any of the following temporary orders to facilitate the preservation of the rights of the parties until a further agreement or order is made:
(i) an order relating to the designation of beneficiaries under a policy of life insurance, registered retirement savings plan, trust, pension, annuity or a similar financial instrument,
(ii) an order preserving assets generally or particularly,
(iii) an order prohibiting the concealment or destruction of documents or property,
(iv) an order requiring an accounting of funds under the control of one of the parties,
(v) an order preserving the health and medical insurance coverage for one of the parties and the children of the relationship, and
(vi) an order continuing the payment of periodic amounts required to preserve an asset or a benefit to one of the parties and the children;
(c) make an unopposed order or an order on consent; and
(d) on consent, refer any issue for alternative dispute resolution.

In Tran v Moussavi, [2009] WDFL 3276, 174 ACWS (3d) 786, the court found that the case conference judge committed an error of law. The judge essentially made an order imputing income to one of the parties, but there was no advance notice that this order would be sought contrary to Rule 17(8)(b.1). In other words, the judge took it upon themselves to make an order that was not contemplated or agreed upon by the parties. This case demonstrates some of the limitations placed upon judges at these conferences.

16 [The judge] had undisputed evidence as to the Appellant's income and the reason, owing to the Appellant's health, for his part-time employment and hence modest income. While not the best evidence that might have been brought by the Appellant, it was the only evidence before the court. I find there does not appear to have been a reasonable basis for the income imputed by [the judge]. Further, the parties' confirmation forms do not give notice that a support order would be sought.

Obvious takeaways? Case conferences are mandatory except in rare circumstances. They are primarily used to give the parties the opportunity to discuss settlement in front of a judge, narrow the issues or as an opportunity to conduct housekeeping of things such as disclosure and procedural steps. The parties can ask the judge to opine on the case, giving them the benefit of hearing the merits of their case but without the judge making an unwanted order.

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