No motion can be heard, and no notice of motion can be served in Ontario until there is a case conference, unless certain exceptions apply. For this reason the case conference is often considered the most important step in family law litigation.
The case conference is intended to promote an early resolution of disputes by allowing the parties to hear a judge’s views on the case, before they spend lots of money on motions and a trial. At least one case conference will be held where an answer is filed, and are required before a motion to change a final order or agreement.
Case conferences can also be held in child protection cases, if one party requests it or the court considers it necessary.
The contents of a case conference are described under the Rules:
PURPOSES OF CASE CONFERENCE
(4) The purposes of a case conference include,
(a) exploring the chances of settling the case;
(b) identifying the issues that are in dispute and those that are not in dispute;
(c) exploring ways to resolve the issues that are in dispute;
(d) ensuring disclosure of the relevant evidence;
(d.1) identifying any issues relating to any expert evidence or reports on which the parties intend to rely at trial;
(e) noting admissions that may simplify the case;
(f) setting the date for the next step in the case;
(g) setting a specific timetable for the steps to be taken in the case before it comes to trial;
(h) organizing a settlement conference, or holding one if appropriate; and
(i) giving directions with respect to any intended motion, including the preparation of a specific timetable for the exchange of material for the motion and ordering the filing of summaries of argument, if appropriate.
Before the case conference, each party must serve and file a case conference brief (Form 17A for general case conferences, or Form 17B for protection application or status review). The applicant must file this brief no less than seven days before the conference, and the respondent must file it at least four days before. Unless ordered by the court, this case conference brief does not become part of the continuing record and is returned to the party once the case conference is over.
By exploring the chances of settling, parties can understand how far apart their positions are on major issues. Before anyone can make a proper assessment of a settlement offer, full financial disclosure must be made. After discussing the issues with the judge, many parties discover there are less issues in dispute than they would have thought. Judges will often emphasize the importance of settlement, and the amount of time and expense involved in litigation. Re-framing the issues and noting admissions to discover underlying motivations can help some parties look at things differently, also leading to greater settlement.
When parties at a case conference reach an agreement it is referred to as consent or a minutes of settlement. These can be either temporary or final, or a mix of the two depending on the issues. Any agreement must be signed and witnessed by the parties. Any conference agreement is usually filed as part of the continuing record, with parties receiving copies. Parties may decide to skip motions entirely and move to a settlement conference.
If a party wants an order made at a case conference, they should indicate this at paragraph 13 of general case conference form. Judges will often consider this section of the form to constitute notice on the other side. If notice has been made, a judge can make a temporary or final order at the case conference. A judge can also make an order for documentary disclosure or questioning. If the parties are in agreement over some issues, an unopposed order or order on consent may be possible.
The judge will indicate when the case conference is completed, and may give some directions for any intended motions. The judge will try to get the parties to agree to a specific timetable, with disclosure orders on a specified deadline. The parties may agree to schedule a motion, or if they are willing to proceed to a settlement conference without a motion it will usually be booked about 4-8 weeks later.
See also the Law Society of Upper Canada’s How to Prepare for a Case Conference in the Superior Court of Justice
