JUDICIAL CASE CONFERENCE: THE NEXT STEP IN THE FAMILY LAW PROCESS
A Judicial Case Conference may well be one of the most frustrating steps in family law litigation as it is the step in between filing a Notice of Family Claim and seeking pre-trial relief. The frustration comes from a forced waiting period, as there needs to be a minimum of 30-days notice to the other side, and neither side can make applications to the court before the JCC except in limited circumstances. The hard part is the wait.
THE PURPOSE OF JCC
The legislature has mandated that parties attend a Judicial Case Conference in the hopes that parties can come to solutions on their own before parties become entrenched in their litigation positions. A war of affidavits, with hard words each describing the other party, are rarely conducive to settlement. The legislature’s hope is that a JCC can divert parties away from a litigation war in which nobody wins, including the children, if this can be done before a series of pre-trial applications.
A JCC is usually one and half hours in length and is overseen by a Judge or Master (a type of Judge) of the Supreme Court. The purpose of the JCC is two-fold: find settlement on either interim or final issues and prepare the parties for trial in the absence of a settlement. A pre-requisite for attending a JCC is that each party has to exchange their financial statements, a type of court form disclosing a party’s finances. Parties must serve one week before the JCC their financial statements, known as Form F8, upon the opposing party.
WHO SPEAKS AT A JCC
Your lawyer will do most of the talking on your behalf, however you are allowed to speak directly to the Judge or to your ex-spouse, unlike in court where only your lawyer can speak to the Judge on your behalf. The JCC may take place in a conference room or a court room depending on the courthouse. If the JCC takes places in a courtroom, the parties and the Judge may sit around a table away from the bench while other Judges prefer to conduct a JCC from the bench. The JCC is recorded but only for the benefit of referencing any orders made and a transcript can only be released by court order. It is only in the rarest of circumstances that the court will allow a transcript to be made of the JCC since the purpose of a JCC is to foster candid dialogue. You should attend the JCC wearing business casual dress. While the court considers JCCs to be “informal” that doesn’t mean you shouldn’t treat the JCC seriously and speak respectfully to your ex-spouse, counsel, and the Judge. The Judge may ask questions directly of you. A Supreme Court Justice is addressed as “my lady” or “my lord” and a master is addressed as “your honour.” While a JCC brief might be useful for identifying issues and positions between counsel, the brief itself is of limited value with the Judge because it cannot be given to the Judge beforehand unlike a Settlement Conference Brief.
RESTRICTIONS ON THE ORDERS MADE AT A JCC
A Judge can only make substantive orders at a JCC by the consent of both parties. Substantive orders are orders pertaining to the main litigation issues: division of property, spousal support, child support, parenting arrangements, etc. A Judge cannot make substantive orders at a JCC unilaterally, as this is forbidden under the Supreme Court Family Rules. Recently, the British Columbia Court of Appeal in Morales v. Puri held that “it is axiomatic that Judges, like everyone else, are obliged to follow the law.” It is only by consent that parties may enter into substantive orders at a JCC.
Consent orders are a possibility as a Judge has a specific mandate to act as a mediator and to attempt to broker a settlement. One thing that the Judge can do at a JCC is to give a non-binding opinion as to the strength of one’s case, which sometimes can be enough for a party to decide to settle. You don’t need to worry about what is said at a JCC, as they are protected by settlement privilege. This means that what is said at a JCC either by a Judge or by the parties cannot be repeated outside of the JCC.
A Judge can make procedural orders unilaterally at a JCC, including: ordering a party to attend the Parenting After Separation course, authorizing the amendment of court documents, ordering that particulars be provided regarding court documents that initiated the litigation, ordering document production, ordering examinations for discovery, reserving a trial date, setting down a trial management conference, making orders respecting the timing of events, and making any other procedural order or giving direction that will further the object of the Rules.
The object of the Rules is to help the parties resolve the legal issues in family law case fairly and in a way that will take into account the impact that the conduct of the family law case may have on a child and minimize conflict between the parties and secure the just, speedy and inexpensive determination of every family caw case on its merits in a way that is proportional to the interests of any affected child, the issues in dispute, and the complexity of the case. In other words, most family law litigation is the exact opposite of what the legislature would like litigants to do.
CAN I GO TO COURT BEFORE THE JCC?
The JCC can be waived if there is a pressing reason to do so, such as if one of the parties is in a dire economic position and there is an urgent need for spousal or child support. Failure of counsel to respond to correspondence seeking JCC dates may be sufficient reason to waive the JCC requirement.
Some orders can be sought before a JCC and without a JCC waiver: a consent order on any issue, an order restraining the sale or disposition of property, an ex-parte (emergency) order usually pertaining to children, an application to change, suspend, or terminate a final order, an application to set aside or replace part or all of an agreement, or an application to change or set aside the determination of a parenting coordinator.
MAKING THE MOST OF A JCC
A JCC does not have to be an empty gesture while waiting to go to court. A JCC is an opportunity to explore settlement. Given the very expensive nature of family law litigation, any opportunity to find a solution is one that should be taken seriously. Parties have control of their own destiny until they hand it over to a Judge, who may or may not rule in their favour. A JCC is simply the first step towards the end of litigation, whether that is through settlement or trial. One option to consider at a JCC, if negotiations are going well but there is not enough time to conclude negotiations, is to set down a Settlement Conference. A new procedure is often done in front of a different Judge but you can ask the JCC Judge if they would be willing to be the Settlement Conference Judge. Steps for success at a JCC include: filing and serving your financial statement on time, writing out a list of your objectives you wish to achieve at the JCC, and having a positive attitude. A JCC is often the first substantial contact a person will have had with their ex-spouse in a while and it can be nerve wracking. A smile and a handshake can go a long way to setting the right tone for success at a JCC.
For more information family law litigation and representation at a JCC, please contact the John Nelson Law Corporation for a personal consultation.