MEMO TO CLIENTS OF FISHMAN BELEY
This short note is a general statement intended
to give you, as a client of our firm, some knowledge of the purposes of and
the procedure
at a Case Management Conference.
1.0 What is Case Management?
Case Management is a case screening and management process. It is used in all new family law cases, with a few exceptions for such cases as child welfare, guardianship, domestic violence proceedings, reciprocal enforcement and provisional orders, and enforcement of support.
2.0 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 to get a matter quickly ready for trial, if that will be necessary.
The theory is that by bringing the parties and their lawyers together with a judge at an early stage of the proceedings, settlement will be promoted by reducing the need for contested interim proceedings and by giving the parties early and relatively informal access to a judge to get the thinking of the court about the issues in their case.
The parties will not be allowed to proceed with a first interim motion until after the first case conference, except with leave of the court where a Judge agrees the matter is urgent.
A brief summary of the goals follows:
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;
Once the matter is ready for trial, to set a trial date.
3.0 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.
Case Conferences are required by the court prior to the hearing of a first interim motion in a case. The parties may schedule Case Conferences at any time upon service and notice to the other side.
Each party will be required to complete 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 first meeting will be for forty-five minutes. Subsequent meetings will be scheduled at the conclusion of the first, if desired..
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.
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 of the judges will be flexible with respect to adjournments or in convening more intensive sessions.
4.0 What Happens at the Case Conference?
The parties and their counsel meet in a less formal atmosphere with a judge. While the conference will take place in a courtroom, the usual trappings of courtroom procedure are noticeably absent, although start times are strictly adhered to and we all rise when the judge enters the room.
The meetings are private and members of the public are not allowed. All participants, including the judge, 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 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 have considerable experience in Family Law matters. The judge, who is assigned to manage the case, will not hear subsequent contested matters or a trial between the same parties, unless they both request it, and the judge agrees.
Because of the judge’s participation in the process, he or she can fairly give an opinion of the likely outcomes of various issues in court 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.
The parties, themselves, are encouraged to participate in the discussions directly. Often the judge will address the parties 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, the positions his or her lawyer is advancing, and what the potential costs might be.
5.0 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.
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 marital 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 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.
6.0 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.
As indicated at the beginning of this note, this information is for general purposes only. It is not intended to be a complete statement of the law or practice which, in any event, is subject to change from time to time. Please feel free to ask questions specifically about your case, or to clarify the contents of this memorandum.
[revised February 2005]