Case Conferences in Family Law: The Nuts and Bolts
The case conference is the first opportunity that you will have to meet a Judge face-to-face. Unsurprisingly, most of my clients are completely stressed out by the prospect. And by stressed, I mean, the “lost a night of sleep” type of stress.
So, what exactly is this conference all about? Why are you going? What will happen?
Let’s start from the beginning.
Why case conferences?
We have case conferences because our family law procedure requires them in every single family law case in Ontario. If that sounds like a lot of conferences, it is. Without being scientific, I think that our county has between 10 to 20 conferences per week.
There is nothing magical about the case conference. Both you and your spouse will be present. Myself and your spouse’s lawyer will also be present. The Judge will be present. As court procedures go, a case conference is probably one of the least formal events in a court file.
So, why are case conferences required? The idea is that in every court case, the parties should be given the opportunity to sit down and problem solve before they case get too far along in the process. The case conference is designed to be efficient and productive.
Essentially, that’s why we have case conferences.
What happens before the case conference?
Each lawyer is required to submit a memo outlining his or her case. The memo should be short and to the point. It should be focused on the “big picture”.
The Judge will read the case conference memos prior to the appointed time. This is the only thing that he/she will read and will be the only thing that the she/she knows about your case at this stage.
What happens the day of the conference?
I will meet with you about 10 minutes before the conference at the courthouse. I will check in with the staff, find out if we are running on time, and take a couple of minutes with you to finalize a few things.
From there, each Judge has his or her own style and technique. However, a conference will always starts with the Judge inviting the lawyers alone, or both parties and the lawyers, into a meeting room. If a meeting room is not available, the conference will be held in a courtroom with tables and chairs assembled at the front of the room.
If a Judge wants to meet with the lawyers first, it will usually be to find out whether any discussions have taken place since the memos were filed. Sometimes a Judge will have questions that need to be clarified before the conference begins.
Most of the time, the Judge will then invite the parties into the room. From start to finish, the process usually takes about an hour.
What is discussed?
First of all, let’s clarify what is not discussed in a case conference and what does not happen. There will be no court reporter. There will be no evidence given. Nobody will take an oath. Nobody will testify. Everything that will be discussed is “off the record.”
The Judge will have been made aware of the different issues. Some issues are relatively straightforward. The Judge will encourage a resolution by offering his/her opinion as to a likely outcome. And by opinion, I mean just that. Nothing that is said is binding. But it is a “quick and dirty” opinion.
Of course, some issues are not straightforward. Those issues will require evidence, further disclosure and further workup. As you can imagine, it is hard for a Judge to give an opinion under those circumstances. So, a timetable and agenda will be established for the completion of the case.
Who will be talking?
Who will do most of the talking? Frankly, I will- as will the other lawyer. Sometimes a Judge will ask a question of a party. But it’s not the sort of dramatic type of question you may see on lawyer shows on T.V. It is usually fact-based, and relatively simple to answer. In short, you cannot be “stuck” with the “wrong answer.”
That being said, the conference is definitely an opportunity to roll up our sleeves and get work done. No letters back and forth. No waiting for a response. As its most basic it is a time for problem-solving, with the Judge there to assist.
What will the Judge decide?
This is very important. A Judge will not and cannot make any substantial of order unless you and your spouse agree. To be sure, some Judges are more opinionated than others and some form of arm-twisting can take place. Understandable: the Judge is trying to help. But, under no circumstance will a Judge be able to impose an order on you unless you agree.
Now, let me answer some other questions that seem to come up pretty regularly.
What should I wear?
This is not a fashion show. Business casual is fine. And, if your conference will be taking place just before or after you work, your work clothes are fine. Everyone understands.
Everything that my spouse said in his or her memo is wrong. What now?
Leave that one up to me. There is a time for a debate, which also means that there are other times in which it is not appropriate to debate.
Will I have to see my spouse?
Yup! But only in a very controlled atmosphere. In front of a Judge, most people are on their best behaviour.
Will the Judge ask me any questions? Do I have to answer?
In my experience, a Judge will rarely ask a question that put you on a spot. So, you don’t have to answer, but you might as well take the opportunity.
Can anyone else attend the conference?
Nope! Conferences are closed door sessions. Certainly, you or your spouse are free to bring a friend or family member. But that person will be required to wait in the hallway during the conference.
Can I obtain a copy of the transcript of what took place?
No. There are no transcripts. The only time a court reporter is present is if your spouse is not represented by a lawyer. Even then, the only purpose of the court reporter is to provide the Judge protection from claims, for example, that he or she made racist or sexist comments.
Will you and I meet after the conference?
That depends. The court staff does a good job trying to stack my conferences one after the other. So, we may not get a time to meet immediately after the conference. Even if we do have time, the courthouse has precious little space for private discussions- while we will probably meet very briefly after the conference at the courthouse, if necessary, we can meet back at the office later.
What happens after the conference?
If we seem to have made progress settling portions of your case, I usually dedicate some time to drafting the formal agreements to get those issues done. As to the issues that aren’t resolve, I will take whatever steps are necessary to complete the timetable. And sometimes, if good progress is made but we have to find out further information, a Judge will reschedule the conference for a later date.
What happens if I don’t like the Judge’s opinion?
The Judge’s opinion is not binding. It is not recorded. And once a Judge holds a conference, he or she is disqualified from being your trial Judge. Obviously, nobody wants a Judge to prejudge his or her case.
What is the best way to prepare? You don’t have to study. This is not a test.
If you would like to learn more about case conferences, or have questions that were not answered above, please reach out to me at 519-800-1039 or contact us online.