Overview of Judicial Case Conferences

What is a Judicial Case Conference?

One of the first steps in any Supreme Court of British Columbia family law case is to have a Judicial Case Conference (JCC).  A JCC is a private hearing with a judge or master and the public is excluded.  Only the judge or master, the parties and their lawyers are present.  Parties, or their lawyers, explain their position to the judge or master and discuss the facts of the case.  The judge or master may ask for information directly from a party instead of asking through their lawyer.

The main goal of a JCC is to give the parties a chance to discuss the real issues of the case freely and try to come to an agreement.  Even if parties cannot settle all of the issues, they might be able to settle some of them, or they might agree on how issues are going to be dealt with on an interim basis before trial.

I say “real issues” because sometimes it is not always clear what the important issues in the case are going to be at the very start of a case.   It is also sometimes difficult to tell which issues are the ones that are going to be hotly contested.  A JCC can help people explore the possible issues and sort out what issues are more and less contentious.

Discussions at the JCC are confidential.  They generally cannot be repeated later in the court case, which allows both sides to speak frankly about the case.  The idea is that if both sides can speak frankly, there is a better chance of coming to an agreement on one or more issues in the case.

 

Why Try to Settle at a Judicial Case Conference?

It is generally a good idea to try to settle a case where possible.  The reasons for trying to settle include:

1. If one of the issues is parenting arrangements (i.e. custody, guardianship, parental responsibilities and parenting time), then most parents know their children better than a judge will.  Going to a trial on these issues involves asking a stranger, the judge, to make a decision about what is in the children’s best interest.  There are cases where that is necessary, but you should consider very carefully whether your case is one of those.
2. Parents generally have to work together, either after the settlement, or after the trial.  Parents can assume that they will be seeing each other again at least until their children are married.  Trials are not happy experiences.  If the parties are having a difficult time co-parenting, a trial might not improve that relationship.  Again, there are certainly cases where a trial is necessary, but you should consider very carefully whether your case is one of those.
3. Children can be exposed, even indirectly, to conflict between the parties.  It takes time to get to a trial.  You might not have your trial for a year.  I have seen cases last for longer than that.  The longer a case drags out, the more children might be exposed to the conflict between the parties.
4. The stress and uncertainty of an ongoing legal case are not fun at all.

A Judicial Case Conference can be one of the more powerful tools available for trying to settle a case.  You are not just dealing with lawyers trading letters and phone calls.  An actual judge or master is present, listening to the parties discuss the case.

 

What Can a Judge or Master Do at a Judicial Case Conference?

Rule 7-1 in the Supreme Court Family Rules describes what a judge or master can do.  The list includes identifying issues in dispute and exploring ways that those issues might be resolved without a trial.

Every judge and master has their own style of exploring ways that issues might be resolved without a trial.  Some are more formal, some less formal.  Some judges and masters are “hands on” and will lean on the parties to try to get them to reach a settlement.  I have seen judges and masters be very blunt with parties.  They can give a non-binding opinion on one or more of the issues in the case (e.g. “You have an uphill battle on that issue because…..”).  They might also explain to the parties the time and cost involved in a trial.  On the other hand, some judges and masters are more “hands off” and do not usually give an opinion on the case.

The judge or master also has the power to make court orders.  There are generally two types of orders that can be made at a JCC.  First, the judge or master can make orders to which all parties consent.  For example, if the parties reach an agreement on child support, then an order can be made as to child support right then and there to deal with that issue.  Rule 7-1 also lists some kinds of orders that the judge or master can make even without the parties consent, sometimes called “procedural” orders.  These include orders related to discovery of documents and examinations for discovery.  What is important to understand is that the judge or master can only orders as to procedure without the consent of both parties.

As a result, if the parties cannot agree on a “substantive” issue then the judge or master cannot make an order on that issue.  For example, in Morales v. Puri, 2016 BCCA 216, a father successfully appealed a number of orders that were made at a JCC without his consent.  The JCC judge had ordered that the mother have sole guardianship, sole parental responsibilities, and primary residence of a child on an interim basis.  The Court of Appeal found that, although the JCC judge was doing his best to try to resolve a difficult, high conflict family dispute, the JCC judge should not have overstepped his authority by making those orders without both parties’ consent.

You might wonder why judges and masters are not allowed to make substantive orders without consent.  I would guess that it’s probably to allow both sides to speak completely freely to fully explore settlement.  If parties have to worry that a judge or master is going to make a substantive order without their consent based on what is said at a JCC, then parties are going to be more reluctant to speak freely about the case.

 

When Can an Application Be Brought before a Judicial Case Conference?

Rule 7-1(2) stops parties from serving a notice of application and affidavit on the other side unless a JCC has been held, but there are a number of exceptions.

There are a list of exceptions is in Rule 7-1(3), which says that a party can bring an application without having a JCC if the application if for

1. an order restraining the other party from disposing of property,
2. an order to which the other parties have consented,
3. an order without notice to the other party,
4. an order that changes, suspends or terminates a final order,
5. an order setting aside or replacing all or part of an agreement, or
6. an order changing or setting aside the determination of a parenting coordinator.

In addition, Rule 7-1(4) allows a party to apply for permission to bring an application before having a JCC if

1. 1. it is premature to attend a JCC,
   2. it is impracticable or unfair to have a JCC before making the application,
   3. the application is urgent,
   4. delaying the application, or requiring the party to attend a JCC, is or might be dangerous, or
   5. there is another reason that the court considers it appropriate for the application to be made before a JCC.

   

   How to Prepare for a Judicial Case Conference

   To start, each side should comply with the deadlines set out in the Supreme Court Family Rules, this includes:

   1. 1. 1. 1. Making sure pleadings have been filed at court and served on the other party, such as the Response to Family Claim, Counterclaim (if any) and Response to Counterclaim (if any).  Pleadings outline the claims that each side makes and the other side’s response to those claims.  What is claimed in the pleadings will define the issues in the case.  They will also tell each side the kinds of documents that are relevant and need to be produced.
            2. Subrules 7-1(10) and (11) require each side to file and serve a Form F8 financial statement at least 7 days before a JCC.  The Form F8 financial statement is a standard document exchanged in family law cases that sets out relevant financial information.  For some reason, some parties file and serve their financial statements late.  A JCC is much less productive if one or both sides have not had the opportunity to review and consider the other side’s financial statement.  As a result, it is to everyone’s benefit to have financial statements exchanged on time.
            3. Rule 9-1 obligates each party to produce a Form F20 list of documents within the time specified in the subrules.  Each party is obligated to list all documents that are or have been in the party’s possession or control that could, if available, be used at trial to prove or disprove a material fact.  (Note: Depending on the deadline that applies and the date of the JCC, the deadline might be after the JCC.)

            Following the Supreme Court Family Rules makes JCCs much, much more likely to be productive.

            Assuming that both sides have complied with the rules, there is no “one way” to prepare for a Judicial Case Conference.  Every lawyer has their own style.  I normally prepare a brief that sets out all the relevant facts, issues, and what we propose to accomplish at the Judicial Case Conference.  The brief is basically a “game plan” for the Judicial Case Conference.  I often give a copy to the other side and the judge or master at the Judicial Case Conference, but that is not always necessary depending on the case.

            The Supreme Court of British Columbia has published a guide to Judicial Case Conferences here.

            In addition to what is said in that guide, I can offer the following tips:

            1. 1. 1. 1. Make sure that you are aware of all the different issues that need to be addressed in the case.  If an issue is raised at a JCC, you want to be able to provide a response.
                     2. Be prepared to discuss the relevant facts and law.  For example, if you want to argue that a separation agreement should be set aside, what facts are you relying on to say that the separation agreement should be set aside?  This does not mean that you will have to discuss every fact in the case.  That’s very unlikely.  But it does mean that you will be able to discuss any facts that are relevant.
                     3. Get an understanding of your best alternative to a negotiated agreement on each of the issues.  What will the consequences be if you cannot reach an agreement at the Judicial Case Conference?  What will the cost of proceeding to trial be?
                     4. Develop a clear idea of your settlement position and reasons for it.  List out all of the issues in the case.  What is the minimum for which you would be willing to settle, and what are your reasons for that?  How are you going to ask for more than your minimum?
                     5. Try to anticipate what the other side’s settlement position is going to be and their reasons for it.  How are you going to deal with any proposal that they make?
                     6. Remember that the judge or master cannot make substantive orders that you do not agree to.  Mentally prepare yourself to be able to disagree with the other side.  You may even disagree with the judge or master if they give you an opinion on your case.
                     7. If you are going to discuss particular documents such as Spousal Support Advisory Guidelines calculations, bring enough copies for the judge or master and the other party and their lawyer.
                     8. If you cannot reach a settlement on all of the issues, can you at least come to an agreement on orders for interim spousal support, interim child support, or any other orders that might be necessary to tide the parties over until trial?  Write down some options as to what you might be willing to agree to.
                     9. Are there procedural orders that you want to be made, such as a deadline for documents to be produced?  Create a list and be prepared to ask the judge or master to make those orders.
                     10. If you want to be able to set a trial at the Judicial Case Conference (assuming you cannot settle all of the issues), then you should have an idea of the time you will need for the trial.  You may want to consider the witnesses that you intend to call, documentary evidence that you will want to present, and the amount of time that you will need to argue the case.

                     Can You Have More than One Judicial Case Conference?

                     Yes, Rule 7-1 of the Supreme Court Family Rules states

                     (1)  A party may request a judicial case conference at any time, whether or not one or more judicial case conferences have already been held in the family law case.

                     In fact, there are cases where a second JCC is easier and more productive than the first because the parties have had an opportunity to review all of the documents that are relevant to a case, question the other party at an examination for discovery, and get a fuller understanding of the facts.