CASE MANAGEMENT

A MEMO TO CLIENTS OF FISHMAN BELEY

This is a short note to give you, as a client of our firm, some knowledge of the purposes of and the procedure at a Case Management Conference.

What is Case Management

The Theory and Goals of Case Management

How is the Process Started?

What Happens at the Case Conference?

The Court’s Powers at Case Management

Settlement

 

What is Case Management

Case Management is a case screening and management process. It is used by the Court in all new family law files, with a few exceptions, namely, Child Welfare, Guardianship, Domestic Violence proceedings, Reciprocal Enforcement, Provisional Orders, and Enforcement of support cases.  The Queen's Bench Rules is the source of information and appropriate forms.

 

The Theory and Goals of Case Management

The ultimate goal of Case Management is to lessen conflict between the parties, achieve an early settlement if possible, and to generally streamline the pre-trial discovery and document exchange process. Finally, if the matter cannot be settled, the Court will want to get a matter quickly ready for trial, often imposing a litigation schedule on the parties and counsel..

The basic theory is that by bringing the parties and their lawyers together with a Judge of the Court at an early stage, settlement will be promoted and the need for costly and divisive contested Interim Motions or other proceedings will be reduced. 

By giving the parties early and relatively informal access to a Judge, they may gain an insight into the thinking of the Court about the issues in their case.  This can be an enlightening and sobering event for many parties for whom this is their first time in a courtroom and their initiating immersion into the litigation process.

Except in cases of extreme urgency with permission (leave) of the Court, the parties will not be allowed to proceed with a first Interim Motion until after their first Case Conference.

A brief summary of the goals:

• To explore the possibility of settlement of some or all of the issues with the assistance of the Judge; 

• To determine what steps are required in order to get the matter ready for trial;

• To require the parties to schedule the necessary pre-trial activities, such as discovery of documents, examinations for discovery, exchanges of information, and assessments in a timely and cost efficient manner and

• Once the matter is ready for trial, to set a trial date.

 

How is the Process Started?

Once court documents have been filed, the parties have 200 days within which to resolve the case. If they have not had a Case Conference within that period the Court will send a notice that the case will be dismissed if one is not scheduled within the next 30 days.

The parties may schedule Case Conferences at any time upon service and notice to the other side.  A list of available dates for a first case conference is maintained on the Court Registry website.

Each party will be required to complete and serve upon the other side, a Case Management Information Statement before the first meeting.  This document sets out in summary form, the basic facts, the progress of negotiation so far, the plan for further negotiation, which issues have been settled, what remains in issue and, generally, where the litigation stands.

The initial meeting will be for forty-five minutes.  Subsequent meetings will be scheduled at the conclusion of the first, if desired, and will be with the same Judge.  The assigned Judge, who will stay with the case at this level, will be disqualified from hearing subsequent contested matters or a trial between the same parties, unless they both request it, and the Judge agrees.

Adjournments or cancellation of meetings are governed by strict rules and, unless excused, attendance of the parties and the lawyer who will be handling the case at trial is mandatory. Adjournments must be requested at least 14 days in advance and require the permission of the court which will be granted only in exceptional circumstances.  

A party who cannot be physically present may be allowed to participate by teleconference. Arrangements need to be made in advance.  

The lawyer and client should be familiar with their case and be ready to identify the issues and potential solutions. Usually, there will be more than one Case Management Conference and, if progress towards settlement is being made, many judges will be flexible with respect to adjournments or in convening more intensive sessions.

 

What Happens at the Case Conference?

The parties and their counsel meet with a judge in a courtroom, but in a slightly less formal atmosphere.   While the Conference will take place in a courtroom, some of the usual trappings of courtroom procedure are noticeably absent, although start times are generally adhered to and we all rise when the Judge enters the room.

The meetings are private and confidential..  They are restricted to the parties and their lawyers.  Unlike other sessions of the court, members of the public are not allowed. All participants, including the Judge (instead of the raised dais as in other cases), will sit around a table and, often, after brief remarks by the Judge, the meeting takes on the atmosphere of a round-table discussion. Civility and settlement-promoting behaviour is encouraged.

All discussions held at the Case Conference are on a "without prejudice" basis – that is, nothing said at the meetings may be used at a subsequent motion or trial, unless, in fact, the parties agree to it. The "without prejudice" nature of the discussions facilitates the exploration of the possibilities for settlement, and provides a good opportunity for everyone to hear all sides.

Naturally, the Judge is there to keep tempers in check and the issues on track.  The Judge will usually be a member of the Family Division and have considerable experience in cases like yours. Although the Judge will only have limited knowledge of the facts, he or she will usually couch their views in a neutral and contingent manner as to probable factual outcomes, but will usually be able to fairly give a non-binding, but otherwise persuasive, opinion of the likely outcomes of various legal issues or the arguments that the parties have raised in the case. Some judges will take a more activist approach, actively encouraging settlement where reasonable, while others will be more conservative, letting counsel and the parties drive the process while taking on a less interventionist "umpire" approach.  It behooves the parties to be well-prepared for the possibility of making a deal.

The parties, themselves, are encouraged to participate in the discussions directly. Often the Judge will address the parties directly to solicit their feelings about the process and will be interested to hear what the parties have to say. Many Judges will wish to satisfy themselves that each of the parties understands the issues and the positions his or her lawyer is advancing.  Often there will be a frank discussion of the costs and benefits of litigation. The parties will be discouraged from using this as an opportunity to argue with or otherwise confront or engage with their estranged partner and directed to speak to the Judge.

 

The Court’s Powers at Case Management

Usually the parties will be able to resolve some or all issues at a Case Management Conference and the Judge may be willing to pronounce a Final or Interim Order, by consent. Sometimes it may be possible to have the divorce heard and determined on the spot.

The Judge also has the power to make Orders that he or she considers "necessary or advisable for the just, expeditious and cost-effective determination of the proceeding".  This power is often used to order production of financial information or to direct the parties to complete evaluations or to take other procedural steps.  The Court also has the ability to fix costs, stay a proceeding, strike out a court document or adjourn a trial at Case Conference..

Following the conference the Judge will issue a Memorandum indicating what was agreed, what was ordered, and what the next steps should be. Because of the "without prejudice" nature of the discussions, there is no "record" of the proceedings, other than this Memorandum, and, therefore, what was said or offered, short of an agreement, cannot be later referred to.

If, after several meetings, the Judge is of the view that the matter cannot be settled and that all steps necessary to get the matter ready for trial, such as assessments, pre-trial disclosure, discoveries, and family property References have been completed, then the matter can be scheduled for a trial.

A trial date can often be made available within 6 weeks to 3 months from the date that the matter is "ready", depending on the length of the anticipated trial, the time of year and subject, of course, to the availability of the parties, counsel and, perhaps, expert witnesses.  The Court does not generally hear trials in July and August.

 

Settlement

It is important to remember that while settlement is the ideal, that you are not required to agree to anything and where appropriate you should take the opportunity to speak privately with your lawyer or request time to properly consider and discuss any proposed agreement. The Court will usually agree to stand the matter over for a few minutes or, if appropriate, for a number of weeks to allow you to make sure you are comfortable with the proposed settlement.

If some of the terms used in this Memorandum are unfamiliar to you, or if you have other questions, you might check the Family Law Primer on our website (www.fbfamilylaw.mb.ca) or ask us directly.

[ February 2010]