Czutrin - Appeal - Purpose of Conferences Clarified! :)

[Tayken]

Hi All,

Many people come to this site seeking advice as to what a justice can order at a conference. This recent case law from the very Honourable Mr. Justice Czutrin clarifies what many of the learned posters always state regarding what "can" be ordered at a conference.

My hats off to Justice Czutrin for this case law. No doubt it will be reported shortly...

A.B. v. N.L.A., 2013 ONSC 2990 (CanLII)
Date: 2013-06-20
Docket: FS-1200017931-0000
URL: CanLII - 2013 ONSC 2990 (CanLII)
Citation: A.B. v. N.L.A., 2013 ONSC 2990 (CanLII)

To repeat, conferences are intended to assist in getting parties to a settlement or to trial readiness and to attempt to avoid motions. Conferences are not intended to be used as venues in which to determine opposed substantive matters on a final basis. They are not meant, and could not have been intended, to prevent a person from having an opportunity to be fairly heard according to the Rules. At conferences, it may often be appropriate to make procedural orders or temporary orders to preserve positions, provide for temporary support (based on sworn financial statements and undisputed facts), ensure necessary disclosure, and move the case along. However, seldom (if ever) should a final order be made at a conference when it is opposed and not on consent.

Good Luck!
Tayken

[Mess]

Thanks for finding this!

[Tayken]

Thanks for finding this!

No problem at all. I thought the whole case law was great because people often come in with questions about what can/can't be ordered at a Conference. Justice Czutrin clearly outlines the purposes of a conference in very simple terms that in my opinion new members can understand.

Good Luck!
Tayken

[Mess]

I do think I will modify my usual advice though. J Czutrin does carefully dance around the idea of final orders, never quite stating that they can NEVER happen without consent of both parties.

And of course, this case would not have come up if some judges didn't presume they could sign orders at will. So it can happen, and it shows that we must be prepared, be careful not to imply in the brief that we expect any kind of order to made.

The father was fortunate that he had some clear evidence to show that the last thing he expected was a final order, since he could show that he was only prepared for and expecting a negotiation session.

[Tayken]

I do think I will modify my usual advice though. J Czutrin does carefully dance around the idea of final orders, never quite stating that they can NEVER happen without consent of both parties.

Well, Czutrin does state explicitly:

In making the decision about what is appropriate, a judge must consider the objectives of the Rules, the various remedies the Rules offer and the guidance of Rule 17 as to what orders can clearly be made. The judge must pause when considering orders that do not merely preserve temporarily the status quo and protect parties and children. In the absence of consent, final orders must only be made be based on evidence.

The only place that evidence is heard is on motion or at trial in a family law proceeding. Conference briefs do not form part of the record. So, Czutrin did narrow (possibly) the argument of where a final order could be made by a justice and ultimately in natural justice that is at a trial and in rare situations on motion.

In the end, the final orders made in this case were made inappropriately, incorrectly in law, and in a manner that was procedurally unfair.

I note one interesting thing... The Justice's name doesn't appear anywhere in this case law. Justice Czutrin should have, in my opinion, had to include the justice who made the order. It is important that the improper conduct of the Judiciary be identified and in my personal opinion any justice whom conducts themselves in this manner in any court should be removed from the judiciary.

Also, my opinion, is that the father in this matter, if married should start a divorce proceeding immediately so the matter is moved from the OCJ to the SCJ. Not to create a procedural nightmare but, to move things to a better and more competent court of jurisdiction for hearing (in my opinion) custody and access disputes.

Good Luck!
Tayken

[sahibjee]

I witnessed a judge suspend a child's access to her father (yes access is the child's right) at a case conference because the mother had "concerns" no evidence was presented by the mother. There was a substantial "haw" amongst the counsel present in the room. The opposing counsel protested that it was a cc and there was no evidence presented at all but the judge didn't seem to care.

[Mess]

The judge that made the order that was successfully appealed did the same thing. We are all sure this happens over and over.

The point is that now we have an appeal court ruling, which carries a large amount of weight, to refer to when challenging such an order.