STRATEGIC USE OF PROCESSES
TERRY P. BELEY , FISHMAN BELEY

( Law Society of Manitoba Program April 21, 2006
“Family Practice in the New Millenium; Navigating Your Case Efficiently and Effectively”)

I.                    What to File and When

A.        When to File

The first question is do you need to start Court proceedings at all?  Can you write to the other party, say that you are retained and ask that he or she have counsel contact you to open negotiations?

Some times Court proceedings will be necessary:

1.                  Is there violence which requires a Protection Order or some other injunctive relief?  Even so, can this be addressed by sending the client down to the Court office to see a Magistrate for a Protection Order?

2.                  Is there an issue with respect to support?  If you are negotiating in good faith, can you get an agreement from the other side that retroactive support will be paid.  (Remember Mellway v. Mellway (2004), 4 R.F.L. (6^th) 70 ( Man. C.A. ).  But consider Chubey v. Chubey (2005), 194 Man. R. (2d) 237 (Q.B.).)

3.                  You need an Interim Order because there are other issues with respect to occupancy of the marital residence, custody etc.

4.                  Your attempts to get negotiations started have met with no response or where the other side is stalling.

Keep in mind that unless your matter is urgent and you get leave of the Court, there must first be a Case Management Conference before your Motion can be heard.  You can seek leave by writing to the Family Motions Coordinator setting out why the matter can’t wait or you can proceed as set out below.  Alternatively, given that Case Management Conferences can be set with the Family Motions Coordinator at the Tuesday Family Motions List, you can, if necessary, set a date then for the Case Management Conference and then set another later date for the hearing of the Motion.

If your matter is urgent and I emphasize that it is genuinely, objectively speaking, urgent, (not just urgent insofar as your client is concerned) then there are two ways that you can proceed:

1.                  By way of a short leave Motion; or

2.                  See the Standby Judge on the Tuesday Family Motions List.

With respect to the short leave motion, basically all you have to do is phone the Motions coordinator and tell her that it is urgent.  She will then give you time before a Judge that week.  One should always try to serve the other party because the Court is, not surprisingly, reluctant to grant relief where there has been no notice at all to the other side.  Even short notice is better than no notice.  (It also can’t be emphasized enough that you do end up proceeding without notice you must make full and complete disclosure and you need to insure that you have not misled the Court.)

From a Judge’s perspective, the advantage to booking time is that the Judge will have had the opportunity to read your material before the hearing.  From your perspective, you will have hopefully filed a Motion Brief which is your first and best opportunity to try to advocate on behalf of your client and influence the Judge as to how he or she will see the case.  The advantage of doing a short leave Motion is that particularly if there is counsel on the other side, you can unilaterally dictate when the hearing will be held.  For that reason, this should be done sparingly and only in situations where there is genuine urgency as clearly, this does put the responding party, perhaps more particularly, the responding party’s lawyer, at a serious disadvantage because he or she may not be available at the time that you have selected.

As to the Tuesday Motions List, one can bring an urgent matter before the standby Judge not, and I emphasize not, with the idea that you will necessarily have the matter heard that morning but more with the idea that the Judge may make a temporary “holding” order perhaps with a direction for the filing of Affidavits and a hearing date will be set later that week for the substantive motion.  The advantage of this process is that both counsel are there and are able to be heard on the issue of timing and, for that matter, as to whether the Motion is genuinely urgent.

(a)    The Judges’ Standby List

Keep in mind that the Judge’s Standby List is primarily intended to be used for uncontested matters which can be dealt with in 5 minutes (plus 5 minutes of reading time). 

With respect to uncontested matters, the question to ask is it really a 5 minute matter or is there some complicated legal or factual issue?  Is there heavy reading involved?  In that instance, would you not get a better hearing if you booked time later in the week for 15 minutes or so and the Judge then has an opportunity to read the material and consider the matter? 

The other question is does it have to be dealt with by a Judge at all or could it have gone to the Master?  As noted, Masters have a list each day and they do have the jurisdiction to deal with financial disclosure and Motions to withdraw which are often dealt with by Judges on the Tuesday List. 

While this is not a comprehensive list, the kinds of matters which are intended to be dealt with on the Standby list are:

(a)               To extend an expiring Interim Order;

(b)               To suspend enforcement by Maintenance Enforcement;

(c)               A Consent Order which must be spoken to for the Order to be pronounced.  (Does this really require that it be spoken to or can you just submit the signed Order in due course?);

(d)               Uncontested variations (again, the question is how complicated are the facts and the Affidavit material?);

(e)               To set aside by consent a Protection Order (in this case, insure that the female complainant goes to Victims Services before you even try to proceed);

(f)                 Adjournments referred by the Masters.

B.        What to File

(a)    Generally

In the Family Division, there are the following ways of initiating a family proceeding:

1.                  Where a Petitioner claims a divorce:  Petition for Divorce

2.                  Where a divorce is not claimed but relief is claimed under the Family Maintenance Act or the Family Property Act:  Petition;

3.                  A proceeding in which guardianship of a child is sought:  Application for Guardianship in Form 70F;

4.                  A proceeding to vary, rescind or suspend a Final Order:  Notice of Motion to Vary or a Notice of Application to Vary;

5.                  Other than the above:  Notice of Application in Form 70E with an Affidavit in support; and

6.                  Where it is not practical to proceed on Affidavit evidence:  Statement of Claim.

(b)    Some comments with respect to pleadings:

1.                  In the Family Division, pleadings are defined in Rule 70.27(1).

2.                  You cannot get relief if it is not requested in a pleading.  This cannot be over emphasized:  If your claim is not in your Petition or other pleading, the Court has no jurisdiction to grant that claim if it is included only in your Notice of Motion.  (This happens surprisingly often given that the facts in a family case are often in a state of flux such that relief which was not thought to be necessary when the proceedings were initiated, suddenly becomes necessary down the road).  For that reason, it is a good idea, particularly if the proceedings have been ongoing for some time or a new Motion is being brought after the proceedings were initially commenced, to check and see that the relief sought in the Motion has also been claimed in the pleading.  See Queen’s Bench Rule 70.31(3). 

3.                  As to when one might actually need to use a Notice of Application or Statement of Claim consider the following:

(a)               Where one subsequently needs an originating process because it was not included in the Petition or Petition for Divorce.  A good example of this would be a claim for partition or sale under the Law of Property Act.  Surprisingly often, again because instructions change over time, a jointly held property which your client did not want to sell, now needs to be sold.  Rather than amending the Petition it is often easier to simply file a Notice of Application and supporting Affidavit.  For that reason alone, consider always including a claim for partition and sale “in the alternative” in almost every proceeding where there is jointly held property;

(b)               As to the Statement of Claim, this is particularly useful where one is claiming a constructive trust or unjust enrichment or seeking relief pursuant to a Separation Agreement, Prenuptial Agreement or other agreement between the parties.  One has the opportunity to then set out the claim in a detailed way both as to the material facts on which one relies and the particular relief that one seeks;

(c)               The reality is that under the Rules, even in a Petition or Petition for Divorce where the relief claimed is “other”, the Court requires counsel to “set out in separate, consecutively numbered paragraphs the precise relief claimed and each allegation of material fact relied on to substantiate the claim”.  Although compliance with this direction is probably more honoured in the breach then in the observance the Statement of Claim format is perfectly suited to exactly this sort of claim.  Keep in mind that if your claim in a Petition does not comply with this direction, then you run the risk that the claim can be struck for disclosing no cause of action.  (An example would be to just put “constructive and/or resulting trust” in the “other” box and not provide the material facts and precise relief claimed).  The point is that if you have to put your mind to these issues in any event, you may as well do so when the proceeding is commenced;

(d)               An additional advantage of using the Statement of Claim as the initiating process is the possible availability of an application to the Master for summary judgment on your claim.  Again, this will be dependent on whether your claim lends itself to the summary judgment process.  Examples of fact situations which might lend themselves to this process would be a dispute over an agreement with respect to the title of a property held in trust for the other party or a dispute with respect to a trust set up for the benefit of the children.

B.        Some other Comments and Considerations with Respect to Process:

(a)               If you are serving a pleading anyway, why not at the same time serve a formal Demand for Financial Disclosure pursuant to section 20(2) of the Child Support Guidelines?  Section 20(3) provides that the information is to be provided within 30 days after receipt of the request if the parent resides in Canada .  Section 21 provides that where a parent fails to comply with section 20, the other parent may apply to the Court without notice for an order requiring the parent to provide the required documents and any other financial information that the Court deems relevant within a specified time.  This application for disclosure can be made to a Master. 

(b)               Prior to the hearing of the Motion, check the Court File Index on the internet to see if all of your documents have made it to the Court file.  If documents are missing, then send photocopies to the Court with a covering letter.  The one problem with the internet is that there is an inevitable time delay between when documents are filed and when this is posted.  In a proper case, and I am certainly not suggesting that you do this in every case, if documents appear to be missing or if you want to insure that a document got to the Judge prior to the hearing, you may consider phoning the Judge’s secretary.  Again, I hasten to add that this is not something that you should do as a matter of routine.

(c)               For the hearing of a Motion, you can request more than one hour.  Where the circumstances require, one can book an entire afternoon or even a full day.

(d)               File your documents for the motion in a timely way, always keeping in mind that on Motions, the Court file goes to the Judge on the Thursday of the preceding week.  For that reason alone, it is in your interests to get your material in prior to the Thursday so that the Judge will have the entire file available to him or her.  (If documents go astray, you then at least have the opportunity to file a further copy). 

(e)               With respect to interim proceedings where you have filed a Motion and Affidavit, keep in mind that no Motion for Expungement may be heard until the first Case Conference has been held (Rule 70.21(2). 

(f)                 With respect to Motion Briefs, this is your first and best opportunity for advocacy on behalf of your client and to influence the way that the Judge will see your case.  As such, it should be something more than just the bare bones set out in the Rules.  More particularly, you should:

(i)                 Include a statement of facts;

(ii)               Summarize your argument using numbered paragraphs and separate paragraphs for each topic or concept;

(iii)             Use headings;

(iv)              Cross reference facts or documents referred to in the Brief to your material;

(v)                If a particular document or portion of a document is important to your case, then attach it as a schedule to your brief.  For example, if there have been cross-examinations and there are particular questions and answers which you want to be sure to bring to the attention of the Court, then attach a photocopy of those pages from the transcript to your Brief and highlight those questions and answers;

(vi)              Use numbered or lettered tabs for the ease of reference of the Judge to differentiate between documents, case law, and/or statutory provisions which you have attached to your Brief. 

(g)               If you are commencing a variation application, this is also something that will first have to go to a Case Management Conference.  If that is the case and other counsel is already involved, why file an Affidavit?  Why not just set out all of the relief that you are seeking in your Notice of Motion to Vary and include a request that a Case Management Conference be set?  It may be possible to resolve the issues at the Case Management Conference without the actual necessity of filing Affidavit material, particularly if you will be filing a detailed Brief which provides the relevant information and documents to the Court. 

C.        Some Underutilized Processes:

1.                  Interrogatories (Queen’s Bench Rule 35)

Do you need a Motion or cross-examination or can you get information and documents more easily and less expensively?  If the issue requires disclosure of financial or other documents or if you have specific questions of the other side, I recommend the use of Questions on Interrogatories (“Interrogatories”). 

Queen’s Bench Rule 35 provides that Interrogatories must be answered by Affidavit of the person being examined within 15 days after service of the list of questions.  More importantly, Rule 35.04(1) provides that where an answer is unresponsive, incomplete or suggests a new line of questioning, the examining party may within 10 days after receiving the answer, serve further Interrogatories which shall also be answered within 15 days.  Rule 35.04(2) provides that where the person being examined refuses or fails to answer a proper question or where the answer is unresponsive or incomplete, the Court may order the person to answer.  Rule 35.04(3) provides that where a person refuses or fails to answer a proper question or to produce a document that is required to be produced, the Court may also dismiss the parties’ action, strike out all or part of the person’s evidence or make such other order including a contempt order as is just. 

More importantly, Rules 34.17 and 34.20 apply to Interrogatories.  These rules deal with the use of a transcript from an examination for discovery as evidence and provide that Interrogatories are to be used in the same way.  This effectively means that you control the use of the Answers to your Interrogatories exactly as you would where you have examined for discovery.

In short, this is a tremendously useful tool for obtaining specific disclosure rather than bringing a Motion, examining for discovery or cross-examining on an Affidavit.  It is more specific and targeted then asking for an Affidavit of Documents and can be served at any stage of the proceedings.  It is particularly useful to force production of documents that you know exist but to which you have no access.  It is also useful where you want an explanation or other answers under oath.  It is also important to remember that you can still also examine for discovery if need be.

2.         Request to Admit:

The other procedural tool which you may want to consider is a Request to Admit (Queen’s Bench Rule 51.02(1).  The Rule provides that the other party can be requested to admit the truth of a fact or the authenticity of a document.  The request is to be served at least 20 days before the hearing.  A response is required within 20 days (51.03(1).  More importantly, where the other party fails to serve a response, the party is deemed to admit the truth of the facts or the authenticity of the documents mentioned. 

Clearly, this is an extremely useful way of getting around the necessity for strict proof of documents or proof of facts that may be time consuming or difficult.

The advantage to both these procedures is that there is very little cost except in a lawyer’s time (which is certainly not the situation in Cross-examination on Affidavits or Examinations for Discovery).  There are other advantages in that the other party has a strict time deadline to meet and you can serve these documents at times that are convenient for you. 

3.         The Master’s Uncontested List.

The Masters have the jurisdiction to deal with financial disclosure issues, motions to withdraw and other procedural issues.  More importantly, the Masters are available each day at 9:30 a.m. for these matters, particularly where they are uncontested.

D.         What Steps Can you Take from Your Office to Help Manage Your File in Court

1.                  Ideally, you should try to use your telephone constructively so that you do not actually have to appear to speak to adjournments, to settled Orders or to set hearing dates.  What this involves is a certain amount of professional courtesy and a certain amount of forward planning.  If you have a Motion on the List next Tuesday, then by Thursday of this week you really should have a pretty good idea as to whether the Motion will be ready to proceed or whether it will need to be adjourned further.  If it is ready to proceed then why not phone the Motions Coordinator, get the available dates, run them by the other counsel and set a date by telephone without the necessity of an appearance?  If the matter is going to be adjourned anyway, then why not contact counsel on the other side and arrange to do that in a timely way by telephone so that you are not wasting your time standing in line on Tuesday morning?

2.                  This advice would also be applicable to setting Case Management Conference dates, appearances before a Master, or any other proceeding that can be set by telephone.  The reality is that it can all be done by telephone (although a confirming fax or Requisition may then be necessary).

3.                  This inevitably requires the use of the telephone and voicemail and a willingness by you and by your colleagues to leave meaningful messages for one another. It is possible to do an entire file without actually speaking to the other lawyer simply by voicemail (and subsequent confirming correspondence).  The sad fact is that some counsel when leaving messages give their name and phone number and that’s it.  The end result is that one can end up calling this lawyer 10 times to get an answer to a question that could have and should have been dealt with in the first call.  For these individuals, and you will quickly find out who they are, the only solution is not to attempt to do things by telephone but to use fax or email which is annoying but necessary.

4.                  I appreciate that there is another school of thought which says that you can use the Tuesday morning List as an opportunity to collar other lawyers that may have been dodging you or to talk with lawyers on other files which may not even be necessarily on the List.  On balance, it is clearly a more efficient use of one’s time to deal with the Tuesday list by telephone and not have to appear.  Standing in line and waiting are never a productive use of your time and it is difficult to see why the client should be paying your hourly rates for this particularly if it could be avoided by 1 or 2 phone calls.  Keep in mind the poor client who has to pay for this.

5.                  It follows that one should not assume that because you have to go to the List next Tuesday for whatever reason, that this is a reason to require your colleagues to come with you.  If someone calls you to ask for an adjournment, professional courtesy demands that you call them back and agree that they do not have to attend the list, if that is indeed your position.

6.                  If your Motion settles, call the Court and let the Motions Coordinator know.  The question is do you need to appear?  Only if you require the Judge to pronounce the Order which has now been consented to by the other party.

7.                  Call other counsel to at least attempt to set times for examinations for discovery, cross-examinations etc., which are mutually convenient.  Proceed unilaterally to set dates only when your call or letter is being ignored or the other side is clearly stalling. 

8.                  It is good practice to set up a system to monitor orders that have been sent into the Court for filing so that you can insure that the order has not gotten lost in the system.  What sometimes happens is that orders will get put on the Court file but then the Court file will be sent back without the Judge actually signing the Order.  If you don’t keep track of when orders get filed then you have no way of knowing whether an order is overdue.  All that is really necessary is something as simple as a post-it note which you keep in your diary and on which you list the case name and the date that the Order was filed with the Court.

9.                  The only caveats with respect to relying on the telephone is with respect to self-represented litigants.  You cannot rely on phone calls in that situation and you must confirm everything in writing.

10.             It is also highly recommended that you confirm in writing procedural or other agreements with other counsel which you have reached by telephone.  As necessary, you will also send confirming letters and/or Requisitions to the Court depending on the particular requirements of the Court.