A legal proceeding is a court matter. Once a matter is started in the Supreme Court of British Columbia (meaning someone is sued) there are a lot of opportunities for the parties to settle before actually going to trial. Thank goodness for that because sometimes a legal proceeding can take on a life of its own. Our legal system is adversarial by nature. Sometimes litigants get so wrapped up in the process itself, that they (and their lawyers) lose sight of what is truly important.
In British Columbia, the civil procedure rules require that parties in a family law matter attend a Judicial Case Conference before setting the matter down for a contested court application.
A Judicial Case Conference is not a formal hearing, rather it is a chance for legal counsel and the parties, with the assistance of a Judge or Master of the Supreme Court of British Columbia, to potentially settle some or all matters without having to formally argue about it. It is like a short mediation, but then the judge can actually make an order if you agree.
The thing is that a Judicial Case Conference is a great tool to wrestle some of the issues to the ground rather than things getting ugly.
See, the thing is that in a legal proceeding, sometimes things spin out of control. As one of my favourite lawyers said, "I have never heard anyone say: I am glad that I got myself wrapped up in this legal dispute and that I have obsessed over it for the last three years, and that it has cost me a ton of money. I am glad that I will never be able to sit in the same room as my ex and that we have managed to alienate each other and embroil our kids in the conflict to boot." Nobody says that.
At a Judicial Case Conference a Judge or Master cannot make an order (unless it is procedural in nature only) without consent of the parties. In essence, the parties have nothing to lose if they attend the Judicial Case Conference. It is worth it to give it a try to see what can be settled and what is contentious.
In essence, parties are able to really find out what the really sensitive issues are.
For example, in a family matter, although the court documents will likely state that matters such as parenting, division of assets, spousal support, and child support are all matters that need to be determined, the parties may learn to their pleasant surprise that, they actually pretty much agree on a lot of things such as their parenting plan, child support and division of their assets and child support. They may learn that the only thing they are really in conflict about is about whether or not spousal support is to be paid. So, maybe they think they have a huge litigation problem, when in fact, the issues are much smaller and more narrow.
So, the parties can enter into a court order by consent and agree that the only thing left to argue about is whether or not spousal support is to be paid, how much is to be paid, and for how long. This is way better than having to prepare to argue about a whole bunch of things that the parties are not even at odds about. This makes things cheaper, less stressful, and way quicker to finalize.
Phew (a lot would say).
Also, a Judicial Case Conference is also handy when a party is entrenched in a position that may not seem reasonable. This is because the Judge or Master may inform the parties what they believe the likely outcome will be at a hearing relating to spousal support. We often hear the Judge or Master say, “Although I am not able to make an order about this issue today, if I was to hear a case like this, my order would likely be that spousal support should be paid at the rate of . . . . “
Such comments from a Judge or Master can be fairly persuasive for someone who is very entrenched in their position and that position is not supported by the law.
There is one more thing to mention here. There are some exceptions to the general requirement in a legal proceeding that parties must attend a Judicial Case Conference prior to commencing a family law action.
Parties may be able to get the Judicial Case Conference requirement waived if there is urgency or if it does not seem reasonable to proceed with one based upon the circumstances of the case. Often the requirement will be waived if someone is applying for an order on an emergency basis and they have not given the other side notice of their intention to proceed. Such a situation can occur if there are significant safety concerns or if there is a concern that someone will unilaterally withdraw significant funds and move assets etc.
Some people find the requirement of the Judicial Case Conference frustrating, because they believe that the opposing party will not agree to anything reasonable and that forcing the Judicial Case Conference is just a waste of time.
In some cases they are right.
However, in our experience, the Judicial Case Conference can be surprisingly productive part in your legal proceeding. It is a step in a legal proceeding that can be a cost effective way of streamlining the litigation process.
By Chris Dawson, who wrote this when he was still an articled student. Now he is all grown up, living in Alberta.