You're Going To Ontario Family Court... What Now? - Part 4 of 5

Part 4 in the series... So, It didn't settle and you're headed to Family Court

In our last segment, we outlined the purposes of a case conference. Now let's look at the purposes of a settlement conference. Each conference has a distinct purpose. These are outlined in the Family Law Rules which govern how a court file proceeds in Ontario.

The second conference is usually a settlement conference. The purposes of a settlement conference include: (some also apply to case conferences)

1. Exploring the possibility of settling the case.

   This is only possible if the documentation and information needed to have a meaningful discussion has been exchanged.

   Make sure your lawyer has all of your documentation well ahead of the conference if he or she did not have it for the case conference and has asked the other side well ahead of the conference for the documentation and information he or she is looking for. That gives each side time to review all of the documentation and allows you to go into your settlement conference prepared to have serious meaningful settlement discussions.

   You should also have provided the other side with a detailed offer to settle. This offer may be limited if you do not have enough information or documentation to put forward an offer to settle each and every issue.

2. Settling or narrowing the issues in dispute.

   Your lawyer and the other lawyer should communicate before the settlement conference brief is due in order to discuss whether there are any issues that are in fact agreed to and therefore are no longer in dispute. For example, if the value of a particular item was in dispute but further documentation that is exchanged helps to determine the value to the satisfaction of each of the parties, then that issue no longer requires the attention of the judge.

3. Ensuring disclosure of the relevant evidence.

   Don't wait until you and your lawyer are at the settlement conference. If there is information or documentation that you require, ask the other side for it long before the conference. Ask yourself what information or documentation you need in order to make an informed decision regarding each aspect of the other side's offer to settle.

   1) Settling or narrowing any issues relating to any expert evidence or reports on which the parties intend to rely at trial.

   There may be a pension report, business valuation, income/business assessment, or medical reports for example that fall into this category. If these reports are available at the settlement conference, there may be more meaningful settlement discussions or the issues in questions can possibly be narrowed.

4. Noting admissions that may simplify the case.

   Sometimes counsel exchange "requests to admit" which requires the other side to either admit or dispute certain facts or the authenticity of certain documents. If certain facts or certain documents are key to the case, it may be helpful to use the request to admit to determine the other party's position on the fact or document.

5. If possible, obtaining a view of how the court might decide the case.

   In our opinion, this is one of the main benefits to any conference. You have an opportunity to hear from a judge what he or she thinks the outcome would be if the matter proceeds to trial based on what is an incomplete picture of the whole case (a "complete" picture is only possible after a full blown extensive trial). It is therefore important that the presiding judge has all of the information and documentation he or she needs before him or her to be able to give that opinion.

6. Considering any other matter that may help in a quick and just conclusion of the case.

   Your presiding judge may well have wise suggestions of things to take into consideration that may assist in settlement of one or more issues. Take careful note of what the judge mentions.

7. 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.

   Careful consideration should and must be given to this. You need to consider what you need to prove to verify your contentions and what witnesses you will need to provide the evidence in order to do so. You will be kept to your estimated time for trial, so your lawyer should carefully and realistically consider how much time is needed for you to present your case and respond to the other side's case, including cross-examination of witnesses for the other side

8. Organizing a trial management conference, or holding one if appropriate.

   The trial management conference is the third and last conference in the path to the trial of the outstanding issues if matters cannot settle.

Check back for information on the purposes of a trial management conference.

Corrine M. van der Burg, LL.B.
Daniel R. Furlan, LL.B.
Counsel
Fader Furlan Moss, LLP.