How Proceedings Are Started
In family law cases, the parties start proceedings by the filing and service of “pleadings”, usually a form of Petition or Petition for Divorce. These forms can be found in The Court of Queen's Bench Rules (QBR).
The primary pleadings are the Petition for Divorce and the Petition for separation, but can also include a Statement of Claim or Application.
The Petition forms use check-boxes and narrative information to set out basic information and to state what is being requested.
Where support or property issues are at stake, the petitioner must file a financial disclosure form, which is in QBR Form 70D.
If the matter will be contested, the respondent will file an Answer or Answer and Petition if there is a counter-claim for divorce. Again, where support or property issues are engaged, the respondent will complete a Form 70D.
The Pleadings define the issues for the court and give it jurisdiction to grant relief or make orders. While pleadings may be amended, unless relief is requested the court will not be able to grant it.
The pleadings form the Record which will be the framework within which the court will adjudicate final relief at a trial.
Because trials can take months or years to be heard, interim motions may be required to prevent hardship, maintain order between the parties, to secure rights and obligations temporarily - such as interim custody, access or support – or to move the case along.
Once the Petition for Divorce or Petition for Separation is filed, the court has jurisdiction to grant an interim order. An interim motion, unless the necessity has been dispensed with by the court, will not be heard until after the first case conference.
Interim motions are almost always determined on affidavit evidence, that is, the sworn written statements of the parties and their witnesses. Occasionally, there will be cross-examinations taken on the affidavits, or examinations of third parties, but these are done in lawyers' offices, usually, and the judge will only be referred to the printed transcript.
Case Management is a mandatory case screening and management process. It is used by the Court in all new family law files, with a few exceptions (e.g. Child Welfare, Guardianship, Domestic Violence, and some support enforcement cases).
Theory 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 and efficiently ready for trial.
The court will aim to advance the principle of proportionality to the conflict. 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.
The parties will not be allowed to proceed with a first Interim Motion until after their first Case Conference, except with permission (leave) of the court where the judge agrees the matter is urgent.
Once court documents have been filed, either of the parties can schedule a case conference by filing an appropriate request. That request will typically have to certify that the parties have completed financial disclosure.
Case Management Information Statement
Each party will be required to complete and serve upon the other side, a Case Management Information Statement (CMIS) at least 7 days before the first and subsequent meetings.
This document, which replicates the check-box format of the petition, is designed to set out in summary form the basic facts, the progress of negotiations so far, the plan for further negotiation, which issues have been settled, what remains in issue and, generally, where the litigation stands.
The Case Conference Meeting
The initial meeting will be for forty-five minutes to one hour. Unless the court orders otherwise, there will be a limit of three case conferences, with trial dates to be set by the end of the third meeting.
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.
A party who cannot be physically present (perhaps due to a restraining order, or living in another province, for examples) 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. The judge will typically not read documents in the court file other than the CMIS filed by each party.
While the Conference will take place in a courtroom, some of the usual trappings of courtroom procedure are noticeably absent, although start times are strictly adhered to and we all rise when the judge enters or leaves the room.
The meetings are private and confidential. They are not open to the public as most other legal proceedings are. All participants, including the judge, will sit around a table and, often, after brief remarks by the judge, the meeting can take on the atmosphere of a round-table discussion, although judges prefer that the parties not address each other directly, but speak to the court. Civility and settlement-promoting behaviour is encouraged.
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 be a member of the Family Division with considerable experience in cases like yours. 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.
Because of the judge’s limited participation in the process, he or she can fairly give a non-binding, but otherwise persuasive, 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.
The Court’s Powers at Case Management
Usually the parties will be able to resolve some or all issues at a Case 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 has the power to make certain limited orders that he or she considers appropriate. This power may be used to order production of financial information, 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.
The judge has powers to make orders at the case conference based on the information provided, such as, child support orders, referrals for assessments, order genetic tests, impute income where disclosure has not been forthcoming, suspend enforcement, vary protection/prevention orders to facilitate participation in the process, order child support recalculation and make other procedural and administrative matters.
It is important for clients to remember that, while settlement is the ideal, you are not required to agree to anything. Where appropriate, the court will usually allow a party to speak privately with his or her lawyer during the case conference or may grant time to properly consider and discuss any proposed agreement.
Case Conference Memorandum
The judge will issue a Memorandum following the Case Conference 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, unless the judge agrees that a portion of the meeting will be recorded, the Case Conference Memorandum will be available to the trial judge.
A trial date will often not be made available before 6 months, and if the trial is expected to be lengthy (say two weeks) it might be up to a year or more for the dates. The Court does not generally hear trials in July and August.
As part of the process of attempting to establish a process whereby court orders will be prepared in the court room, and to attempt to facilitate the quick resolution of drafting issues for lawyers and the self-represented alike, the court requires that orders be drafted in the proposed forms. These forms will eventually be enacted as part of the court rules. Len Fishman is a member of the committee working on the current redraft of the clauses.
Counsel's use of the clauses is an essential part of the process of arriving at the wording of standardized clauses. The most recent version of the approved clauses can be found at the government court registry site.
Examinations for Discovery
An examination for discovery is one of the more important tools in the litigator's arsenal. It is an opportunity to ask the other side questions and receive answers under oath and to require the production of relevant documents. Discoveries usually take place in a lawyer's boardroom and are attended by the parties and their counsel. A court reporter transcribes the proceedings verbatim and produces a transcript which can be used at the trial.
The purposes of Discovery are to help each side determine the case that has to be met at trial. It is an opportunity to bind the opposing party to their version of the facts and to elicit agreement on those facts which are not in dispute, eliminating the tedious need to prove various elements of the case. The transcript is used to "read in" questions and answers as part of one's case at trial, or to cross-examine at trial where an inconsistent version of the facts is being given.
Discovery is usually preceded by Discovery of Documents.
Cross Examinations on Affidavits
Cross-examinations on affidavits are similar to Examinations for Discovery, but there are critical differences.
They are used in the course of interim motions where the parties will file affidavits in support of the motion. Cross-examinations on affidavits are a means of providing the court with evidence that rounds out, contradicts or otherwise challenges the affidavit evidence.
The court rules are rather strict with respect to cross-examinations on affidavits as these are usually perceived to be of little use and/or as tactical, rather than effective. If a cross-examination is undertaken, the examining party must have the transcript produced, provided to the party opposite and filed in court at his or her own up-front cost.
In theory, the entire cross-examination transcript is in evidence, but, in practice, the judges don't read the entire volume, only those questions and answers to which they are specifically referred.
Discovery of Documents
Each party can demand or be required to produce an Affidavit of Documents.
In compliance with the demand, each side has the obligation to inform the other of the documents in his or her possession which are relevant to the issues before the court, and this will include all relevant documents, not only those helpful to the side's case.
In particular, if a party plans to rely on a document at trial, it must be listed in their Affidavit of Documents. The documents listed must be available for inspection by the other side on reasonable notice. In addition to the ethical and legal considerations, discovery of an undisclosed document can be fatal to a party’s credibility. Parties to litigation are under the obligation to update their affidavit in the event documents come into possession or control after signing their original affidavit.
A “document” includes any writing, emails, text messages, or other printed document, sound recording, video tape, film, photograph, chart, graph, etc., and includes information recorded or stored by means of any device, such as electronic records or media for example.
Even if a document is claimed to be “privileged”, that is, something which need not be provided to a court or to the other side for legal reasons, its existence must be disclosed. “Privileged” documents can be those generated in contemplation of the litigation, such as correspondence between a lawyer and her client, or which may have resulted from a “without prejudice” encounter such as mediation or another protected source such as reconciliation counseling.
Costs and Offers to Settle
"Costs" ordered by a court at the end of a motion or trial are the court's way of rewarding the winner, or of expressing approval or disapproval of one party or the other's conduct of the litigation.
Costs usually "follow the event", that is, that the winner gets his or her costs, although not always. The costs awarded by a court, except in extremely unusual circumstances, do not amount to an indemnity of one's actual legal costs, but merely a contribution.
When the court makes an order for costs, it is up to the party to collect them. The Maintenance Enforcement Program, which will enforce child and spousal support orders, does not deal with orders for costs.
Tariff of Costs
While costs are always in the discretion of the court, and can be a fixed amount, they are usually awarded in accordance with the Tariff set out in the Queen's Bench Rules. The tariff breaks down proceedings into classes, (Class 1 to Class 4 depending on the amount of money involved, and the steps in a proceeding. Custody cases are deemed to be Class 3.)
Offers to Settle
The award of costs can be significantly affected by the existence of Offers to Settle. An Offer to Settle, governed by Rule 49 of the QBR, is a formal document, but the court will also consider less formal binding offers. Such documents are often labelled “Without Prejudice Save and Except as to Costs”.
Offers are not disclosed to the court until after the court has rendered its decision. If, at the end of the motion or trial, the court is informed of an Offer that was less favourable to the successful party than its order, that party can be awarded double costs.