©2003 G. Ross Davis
All rights reserved

Terminology

In jurisdictions in which the Family Law Rules apply, settlement conference is a defined term and distinguished from case conferences and trial management conferences.

The differences between the three types of conference can be seen by comparing the purposes sections of the Family Law Rules applicable to each.

17(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;
      (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; and
      (h)     organizing a settlement conference, or holding one if
               appropriate.

17(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.

17(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 e presented at                      trial;
      (e)       estimating the time needed for the trial, and
      (f)       setting the trial date, if this has not already been                 done.

The purposes of case conference Rule 17(4) and settlement conference Rule 17(5) are similar but the differences between them reflect the reality of most litigation, by that I mean, it takes a certain amount of time and effort before a real settlement can be productively explored. Hence the reference in 17(4) (b) to identifying issues and in 17(4) (g) to having the parties agree to a specific timetable, obvious preliminary steps, and in 17(5) (b) to settling or narrowing the issues in dispute 17(5) (e) obtaining a view of how the court might decide the case, both indicative of a case that has passed beyond the preliminary stage. Another indicator is, unlike a case conference brief, the form of settlement conference brief requires at least a partial offer to settle.

In Toronto, the term case conference applies to any pre-hearing conference except the one scheduled the week before trial is to commence (termed trial management conference). Rule 3.02 of the Toronto Case management Rules provides that the Registrar shall schedule a case conference at a party's request.

In jurisdictions in which the Rules of Civil Procedure apply, the term case conference is nowhere to be found. However, Rule 50 (Pre-Trials) provides that a judge may order a pre-trial conference at the request of a party and, in practice, will do so on the basis of a simple request.

Whatever the terminology, a case conference or settlement conference is one of the most potent weapons counsel have at their disposal to move a case to conclusion and should be the first option considered where negotiations have started to drag.

Trial management conferences under the Family Law Rules and under the Toronto Case Management Rules are focused on the management of the trial to follow - the length of time the case is expected to take, the witnesses to be called the nitty gritty of the trial process itself.

The vast majority of family law cases do not resolve at a trial. So while the focus of this programme is that often-elusive trial, the focus of my presentation is to persuade you that counsel's efforts are better focused on the settlement conference, however that may be termed. For most cases, the settlement conference should be the last step in the proceeding, not the precursor to a trial. Your attitude and preparation should reflect that.

Whatever the terminology, I am going to assume that, at this point in the proceeding, you have obtained all the reports, valuations, information and numbers you believe are necessary to resolve whatever issues there may be in your client's case. If not, you need to go back a step before going forward and conduct that examination or get the missing report before booking your conference. For the purpose of this presentation, I will assume that we are dealing with settlement conferences under the Family Law Rules or a case conference at a point where substantial disclosure has been made and the parties are seeking input from a judge.

Materials to be filed

The rules applicable to materials to be filed at a settlement conference, case conference or pretrial vary somewhat depending on whether your case is in a Family Law Rules jurisdiction, a Rules of Civil Procedure jurisdiction or Toronto.

Given the movement in Ontario towards expansion of the Family Law Rules and the fact these are the most recent pronouncement on the issue, so to speak, I suggest you review those rules and be guided by them even if they are not strictly applicable in your jurisdiction.

In jurisdictions governed by the Family Law Rules the case conference brief and settlement conference brief are prescribed Forms 17A and 17C. The major difference between the two is the requirement of at least a partial offer to settle in a settlement brief.

In Toronto, the form prescribed (a case memorandum) is Form 4 under the Toronto Family Rules.

In jurisdictions governed by the Rules of Civil Procedure, no specific form of memorandum is prescribed. Rule 50.05 makes reference to providing "all documents intended to be used at the hearing". Rule 69.14(13) requires a new financial statement if there have been material changes or if corrections are necessary.

In jurisdictions governed by the Family Law Rules you are required to file a fresh financial statement if there have been substantial changes or if the one in the record is over 30 days old (or, if the changes are minor, an affidavit setting out the changes).

In Toronto, the case conference memorandum requires the attachment of any agreements between the parties, 3 years' tax returns and notices of assessment, financial statements or business statements etc. or an explanation of why not. If these are material to any of the issues you have identified, they should be included. (There may be a few cases where this is just wasted photocopying and if so, counsel should so indicate).

In virtually every case, a net family property statement should be attached. This document often forms the agenda for the conference at least insofar as property issues are concerned. Highlighting the entries is an effective way to draw the judge's attention to the matters in dispute.

Where support is an issue, Supportmate printouts illustrating the after-tax effect of child and spousal support orders at various levels should be included.

Depending on the issues, you should attach pension valuations, house valuations, business valuations, certainly the smoking gun if you have one. Correspondence between solicitors can serve as a useful agenda or starting point in cases where some of the issues have been resolved on a tentative basis. Offers to settle should always be attached (and returned at the end of the conference).

If there are significant legal issues involved, these should be flagged in the brief and mention made of the relevant caselaw.

Confirmation forms are required in Family Law Rules jurisdictions and in Toronto. All too frequently, these forms are filed without sufficient thought. The forms require counsel to advise the judge as to what he or she should read in advance of the conference. Leaving the space blank or saying "all" is not helpful. Ideally, the judge should have to read only your brief and attachments and not have to refer to the court file or continuing record.

Attendance of parties

Clients should always be in attendance. Instructions can be given on the spot. The opportunity for a meeting on neutral territory can produce results. The more opportunity for lawyers and clients to meet, the more likely a case will settle.

The clients need to be directed to focus their attention on possible settlement, and not see the conference as a step on the way to an inevitable trial. Fewer and fewer cases are proceeding to trial and concentrating efforts on resolution at the conference stage will save the clients time and money. It will benefit the lawyers as well. Clients these days are far more interested in having their cases resolved than tried and a reputation for effective settlement will enhance the lawyer's standing in the community far more than a successful trial.

The Rules however are not consistent on the attendance of clients. The Family Law Rules provide that the parties are to attend unless the court orders otherwise 17(5) - the Toronto Family Rules provide that the parties are to attend if directed 3.02(5) - the Rules of Civil Procedure (50.01) provide that a judge may order counsel for the parties and unrepresented litigants to attend a pre-trial conference but makes no reference to represented litigants.

Conduct of the hearing

In most instances, the judge conducting the settlement conference (or case conference or pretrial) will want to hear from counsel to highlight the issues to be addressed before deciding whether or not to invite the parties in.

Lawyers will routinely tell their clients about the process beforehand to prepare them for the attendance, but the more the client sees the process, the better they can understand what they've gotten themselves into. Even if something doesn't quite go the way the client is expecting, it's instructive for them to see that the court process is not always predictable. Most people want the security certainty brings and the can get more certainty by settling instead of litigating. There is enormous scope for creative solutions at a case conference that may not be available at trial. The involvement of a neutral third party, especially early on in the process, can let the parties have their say and resolve the issues in a less confrontational fashion than at trial.

In an earlier paper on this topic I put forward the proposition that counsel should focus on the question "Why does this case need a trial?" in preparing for and presenting at a settlement hearing. Given the fact that most family law cases are a bundle of issues, the question should be asked in respect of each one. There are really only four answers:
      1. The other side is unreasonable (because of course, you're not)
      2. The case is one of first impression and crushing importance
      3. There is doubt as to the outcome and the range of doubt is outside the bounds that normal people may disagree (cases dependant on credibility could fall in this category)
      4. It doesn't - there is no doubt about the outcome or there is but the range of doubt is within the bounds that normal people may disagree and compromise is a legitimate method of resolving the issue.

A case conference is an opportunity for counsel to "road test" their case before an neutral third party. You may be surprised to see how the dynamics of the process can move the case from one of your assigned headings to another.

Confidentiality provisions

Another factor in making case conferences a no-lose proposition is the confidentiality provision. Rule 50.03 of the Rules of Civil Procedure provides:

50.03  No communication shall be made to the judge or officer
          presiding at the hearing of the proceeding or a motion or           reference in the proceeding with respect to any statement           made at a pre-trial conference, except as disclosed in the           memorandum or order under rule 50.02.

The Toronto Family Rules do not contain a confidentiality provision, however, Rule 50.03 of the Rules of Civil Procedure applies by virtue of Rule 1.0l(2) of the Toronto Family Rules. Rule 17(25) of the Family Law Rules provides:

17(25) No brief or evidence prepared for a settlement conference and no statement made at a settlement conference shall be disclosed to any other judge, except in,

      (a) an agreement reached at a settlement conference; or

      (b) an order.

Orders at conferences

Rule 17(8) of the Family Law Rules provides that orders may be made including disclosure, questioning and substantive orders on consent or if notice has been given.

Costs

If a settlement conference in a Family Law Rules jurisdiction has to be adjourned because:
   A party is not prepared;
   The brief has not been served;
   Disclosure has not been made, or
   The Rules have not been followed
Rules 18 (4) and 24 provide that the judge shall order costs and fix them.

What if case conference doesn't settle the case?

Even if a case conference doesn't settle all of the issues, case conferences are a wonderful place to get rid of the less contentious issues letting you focus on the ones that matter. It's a free kick at the can - an opinion from an independent individual who will not be taking the eventual trial (if there is one). It's a no-lose proposition.

If the case is not settled, be prepared to discuss witnesses, evidence and trial time (Rule 17(5) of the Family Law Rules). In Family Law Rules jurisdictions a trial management conference may be scheduled. In Toronto, a trial management conference is held the week prior to the scheduled trial date.

Ross Davis
November 10, 2003

The author gratefully acknowledges the contribution of Madam Justice Jennifer Blishen's paper "Family Law Settlement Conferences" - a co-presentation of the Advocates' Society and the County of Carleton Law Association October 3, 2002 in the preparation of this paper.

© 2003 G. Ross Davis All rights reserved

Mr. Davis practices with the Toronto firm of Bennett Best burn LLP and restricts his practice to family law with particular emphasis on mediation and negotiation of agreements and litigation of property, support, custody and access issues involving married and unmarried couples. Mr. Davis is also a Dispute Resolution Officer of the Superior Court of Justice in Toronto.