Alternatives to Trial
1For details on the procedures in the Provincial (Family) Court, see those Rules. You may refer your clients to the family justice website for descriptions of the process: www.ag.gov.bc.ca/family-justice. Remember that in some jurisdictions, the Provincial Court imposes mandatory pre-trial referrals to a family justice counsellor and to a Parenting After Separation Course. At the first appearance, the provincial court judge can order that parties attend a family case conference. See §2.03.2 for some information on the Provincial Court. Part 2 of the FLA emphasizes that out of court resolution of family law disputes is to be the preferred option with court available as a last resort.
[§5.01] Judicial Case Conference
Under Supreme Court Family Rule 7-1, the parties to a family law case are generally prohibited from serving a notice of application and affidavits to the opposing party unless a judicial case conference (“JCC”) has been held in the proceeding. There are certain applications that may be brought even though a JCC has not been conducted. Those applications include applications for an order respecting protection of property under section 91 of the FLA, applications for a consent order, applications made without notice, and applications to change a final order.
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John-Paul Boyd of Aaron Gordon Daykin Nordlinger revised this chapter in July 2013. Sandra L. Dick of Heath Law LLP, Nanaimo, BC, updated this chapter in December 2012. Carolyn Christiansen of Nixon Wenger LLP, Vernon, BC, kindly updated this chapter in July 2011 and January 2010. John-Paul E. Boyd, Aaron Gordon & Daykin, Vancouver kindly revised this chapter in 2005 and 2006. Reviewed and revised in January 2004 by Kerry L. Somerville, Ratcliff and Company, North Vancouver. Modified by PLTC to include the Judicial Case Conference in August 2001 and modified again in April 2002. Reviewed in February 2001 and February 1997 by Cindy J. Lombard, Kelowna. Reviewed and revised in March 1996 by Catherine M. Greenall, Greenall & Company, Vancouver. Reviewed and revised in January 1995 by Frank Kraemer of PLTC and Jodie Werier, Davis & Company, Vancouver.
JCCs are conducted in an informal, in camera setting. The proceedings are recorded, but no party can access the recording without a court order (SCFR 7-1(19)). The purpose of the JCC is to assist the parties, at an early stage in the litigation, in narrowing the issues, finding areas of agreement, and canvassing the appropriateness of alternatives to litigation to resolve the dispute. JCCs may be used to schedule dates for pre-trial events, such as examinations for discovery, applications or the exchange of documents. At a JCC, a judge or master can, give a non-binding opinion on the probable outcome of a hearing or trial (SCFR 7-1(15)(o)).
Counsel should ensure that their clients understand that the presiding judge or master will seek their participation and input during the JCC.
Counsel should take the opportunity to canvass the issues and any possible resolution to them with their clients and each other to maximize the potential utility of the JCC.
At the conclusion of the JCC, the parties, their counsel, and the presiding judge or master will sign a case management plan prepared by the court clerk setting out any orders going by consent and any scheduling directions given by the master or judge. See Family, Chapter 3 for further details and Supreme Court Family Practice Direction—Judicial Case Conference (FPD-4). [§5.02] Trial Management Conference
A trial management conference must be held at least 28 days before the scheduled trial date, unless the court otherwise orders (SCFR 14-3). If practicable, the judge presiding at trial should conduct the trial management conference. Each party must prepare a trial brief and file and serve it within 7 days of the trial management conference. The lawyers for each party and the parties themselves must attend the trial management conference, although a party may be exempted from attending if there is a lawyer present on that party’s behalf and that party is readily available for consultation during the conference either in person by telephone (SCFR 14-3(4) and (6)).
At a trial management conference, the judge may consider and make orders for: attendance at a settlement conference; amendments to pleadings; a plan for conducting the trial; admissions of fact; admissions of documents; time limits on direct examination and cross- examination of witnesses and opening or closing statements; parties to provide summaries of the evidence of witnesses or directing witness evidence by way of affidavit; expert reports; written opening or closing statements; adjournment of the trial or the trial management conference; changes to the number of days set for trial; a further trial management conference, and any other matters that may assist in making the trial more efficient or in aiding to resolve the family law case, or that will further the object of the Supreme Court
Family Family Rules. Section 223 of the FLA allows the court to make conduct orders respecting case management. For example, a court may make an order to dismiss or strike out all or part of the party’s claim or application (s. 223(1)(a)), adjourn a proceeding while the parties attempt to resolve one or more issues before the court (s. 223(1)(b)(i)), require that all further applications be
heard by the judge or master making the order (s. 223(1)(c)), or prohibit a party from making an application, without leave of the court respecting any matter over which a parenting coordinator has authority to act under an agreement or order (s. 223(1)(d)).
[§5.03] Settlement Conference
The purpose of a settlement conference is to explore the possibilities for settlement with the assistance of a judge on a without prejudice basis (SCFR 7-2(1)). Like a JCC, a settlement conference is a relatively informal meeting of the parties and their counsel before a judge, and the proceedings at a settlement conference are recorded (SCFR 7-2(2)). Under SCFR 14-3(9) and 7-1(15), a judge who conducts a trial management conference, or a judge or master who conducts a JCC, may direct that the parties attend a settlement conference.
At the settlement conference the judge will expect counsel to provide a formal statement of the facts and law. It can be extremely helpful to prepare a settlement conference brief, and provide a copy to opposing counsel and the court a few days prior to the settlement conference. Once the judge reads the summaries and listens to the arguments of counsel, the judge will attempt to resolve the dispute through a process of evaluative mediation, and may provide the parties with his or her perspective of the appropriate outcome for the case, often called “a view from the bench.”
Settlement conferences are particularly appropriate and often successful in family matters. Consequently, to get the most out of the conference, the lawyer should thoroughly prepare for these conferences, reviewing pertinent affidavits, financial statements, pleadings and discovery transcripts well ahead of the conference. The court’s views of each party’s prospects of success can be quite sobering to the litigants, and encourage them to adopt the more flexible positions necessary to reach settlement.
Settlement conferences can be arranged through the trial registry by filing a requisition in Form F17 under SCFR 7-2.
[§5.04] Summary Trial
The summary trial procedure available under SCFR 11-3 gives litigants in a family law case a means to obtain a relatively quick final disposition of a proceeding on affidavit evidence, interrogatory evidence, evidence from examinations for discovery, admissions and expert evidence, without the expense and delay of a full trial. A summary trial may be appropriate for obtaining an order for divorce when a defence and counterclaim has been filed and the corollary relief can be adjourned to be decided at the trial. It can also be used to obtain an order dividing family assets when there is little factual dispute. Summary trials will rarely, if ever, be appropriate in disputes over parenting arrangements or contact. Summary trials are not appropriate when credibility is at issue or when the parties present polarized versions of critical facts. When the court is unable to determine an issue in the absence of oralevidence, the parties run the risk of incurring the expense of the summary trial only to have it rejected completelyand remitted to the trial list. A summary trial application must be heard at least 42 days before the scheduled trial date (SCFR 11-3(3)). The evidence permitted on a summary trial application is outline in SCFR 11-(5), and includes affidavits, admissions and answers to interrogatories.
For a summary trial application, the notice and supporting documents must be served at least 12 business days before the date set for hearing. The responding person must file and serve within 8 business days after service of the application documents
[§5.05] Offers to Settle
Offers to settle are governed by SCFR 11-1, which allows the court to award costs to a party after trial, regardless of the result at trial, where an offer to settle was issued that ought to have been accepted, including double costs from the date of delivery of the offer. In determining whether the offer ought to have been accepted, the court will consider the result achieved at trial with the terms of settlement offered; in general, where the terms of an offer are as good as or better than the result achieved at trial, the court will conclude that the offer should have been accepted.
Offers to settle can be powerful tools to move a dispute toward settlement. The party making the offer must make a proposal that is reasonably capable of acceptance and falls within the range of probable outcomes at trial. The party receiving the offer must review the proposal carefully in light of the potential for costs or double costs.