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A case conference is an opportunity for the parties to meet and discuss their case to move closer to resolving the issues in dispute. Judges can help guide the conference but may provide insight, offer opinions or make recommendations. But can a party later try to enforce these recommendations? Case conferences are intended as a confidential environment for the participants to discuss issues and explore settlement options openly. Courts have held that judges’ opinions at conferences are designed to remain private and should not be put into an evidentiary record.
Parties Share Statements Made at Case Conference
In Abid v. Mahmud, the respondent mother brought an urgent motion seeking an order for the applicant to abide by a court endorsement so that the respondent could have parenting time with the parties’ child. The mother had previously brought a motion as the child refused to go to her house, which the parties had agreed to in an interim parenting agreement. During a case conference, the parties discussed ways to support repairing the child’s relationship with the mother. At the case conference, the judge made “recommendations” that were not included in her endorsement. After the conference, the mother first met with the child, but no further meetings were scheduled. The mother felt her relationship with the child was being harmed because she was not having regular contact with the child. The father explained that he would facilitate meetings according to the child’s wishes, but the child refused to see the mother.
The judge concluded that the matter would not proceed as an urgent motion. However, the judge felt that the relief requested in the motion notice was problematic. This was because it sought to enforce recommendations made at a case conference. Justice Kamal noted that the “opinions of judges at conferences, particularly in the context of settlement discussions, are not intended to be put into an evidentiary record”. Because of the mother’s request, it was necessary to consider including settlement discussions and opinions from judges during family law conferences in motion materials. Both parties provided evidence that included statements made in settlement discussions and those that occurred during the case conference. The case conference judge also made opinions and recommendations.
Confidentiality of Case Conferences is Key
Rule 17(4) of the Family Law Rules outlines the purposes of a case conference, which include, amongst others:
- exploring the chances of settling the case;
- identifying the issues that are in dispute and those that are not in dispute;
- exploring ways to resolve the problems that are in dispute.
As the judge explained, case conferences provide an environment for the parties to discuss the issues in their case openly. And confidentiality is an important feature which enables participants to more willingly share information candidly, which may be necessary to resolve the outstanding problems. Alternatively, if confidentiality were compromised, the trajectory of the case moving forward would be impacted. As Justice Kamal noted, discussions at case conferences permit the parties to “negotiate and explore potential solutions without the fear that anything they say will be used against them later in court”. And this increases the chances they will reach an agreement that benefits all the parties, including children. However, for these benefits to materialize, the judge indicated that the confidentiality of the discussions had to be protected.
Justice Kamal looked at several instructive rules. In particular, Rule 17(23) addressed the confidentiality of settlement conferences. It provided that no brief or evidence was prepared for a settlement conference, and no statement made at a settlement conference shall be disclosed to another judge, except in an agreement reached at the conference or if there is a court order. While no parallel rule existed for case conferences, the judge nevertheless believed it should extend to case conferences, especially in the opinions that judges offer at case conferences and any settlement discussions. The prohibition on statements made at a settlement conference being disclosed to another judge should extend to case conferences. Particularly since the same underlying principle applied, and the Rules specifically included that case conferences aim to explore settlement options and resolve issues in dispute.
Recommendations at a Case Conference Are Not Binding
In Dobraca v. Serter, the judge also agreed that the prohibition against disclosing statements made at a settlement conference to another judge should also extend to case conferences. This case dealt with a request to obtain a transcript of a case conference to obtain clarity about a judge’s directions to one of the parties. In considering the issue, the judge referenced the case conference instructions, which confirmed that each conference was private and confidential, and that “everything said during the conference and any opinions that are given cannot be used outside the conference”. In addition, the instructions page also explained that a judge’s recommendations at a case conference are not binding, indicating that the participants do not need to agree with the judge’s recommendations to reach a settlement.
Justice Kamal also cited Benet v. Benet. In this case, the judge looked to an earlier 2008 case that indicated that at case conferences, it was common for the parties to have settlement discussions, and that judicial opinions or suggestions could be offered. It was also accepted that if parties were able to raise the content of the conference discussions at a later time, it would inhibit and negatively impact the settlement discussions. In Benet, the judge concluded that the spirit of Rule 17(23) was to “ensure that the conferences are conducted in a frank and open atmosphere for the purpose of achieving settlement of all or some of the issues in dispute”. And full and frank settlement discussions would not be possible if the parties had concerns that the transcripts of their discussions could become available and used at trials or motions, which would result in a “chilling effect” on settlement discussions.
More recently, in the 2023 case Strutzenberger v. Strutzenberger, a party requested and obtained a transcript of their case/settlement conference. The judge ordered the party to destroy any copies of the transcript in their possession and prohibited them from disseminating any statements from the conference. Looking at the cases collectively, Justice Kamal in Abid v. Mahmud determined that the cases illustrated there were a “presumption of confidentiality associated with conferences”. While there may be a breach of that confidentiality in extraordinary circumstances, these should be limited to promote frank and open discussions. Ultimately, the judge believed parties should be deterred from introducing the content of conference discussions into the evidentiary record. It was also notable that courts have previously referred to that type of disclosure in the evidence as “egregious” behaviour.
Statements at Conferences Should Not be Included in Evidence
The confidentiality of case conferences is important to promote frank discussion and consider settlement options. While judges may make recommendations or offer their opinions, these statements are not binding and should not be introduced into evidence.
Navigating Separation? Understand the Confidentiality of Case Conferences
Facing separation can be overwhelming, and understanding each step in the legal process is crucial. Case conferences offer a valuable opportunity to discuss your situation and explore potential resolutions in a confidential environment. While judges may offer guidance during these conferences, remember that their opinions and recommendations are not binding and should not be used as evidence later in court.
The team at Johnson Miller Family Lawyers in Windsor understands the complexities of separation and divorce and is here to guide you through every stage. We are experienced in resolving disputes and developing legal strategies tailored to your specific needs. To discuss your matter further or arrange a consultation, please complete our online questionnaire or contact our firm at 519.973.1500. Let us help you navigate this challenging time with clarity and confidence.
