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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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Old 01-11-2007, 10:29 PM
serrona serrona is offline
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Default Case Conference and continueing record

So I have yet another question!

I go back to court again on Monday for yet another case conference regarding my access to my son. The consent order for specified christmas access was not fully complied by, by ex. This will come up on Monday. Will this be a part of my continueing record? I am hoping so because there have been many, many times she has not complied with orders and they are consistently brought up in court. Also, will this be to my advantage in negotiating and keeping this from going to trial? How does one's continueing record come up in a trial setting, and how can it work to one's advantage?
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Old 01-11-2007, 10:48 PM
logicalvelocity logicalvelocity is offline
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serrona,

Generally the trial record includes the Application, Answer and Reply of the parties. The Judges endorsement page of the continuing record may be entered into evidence at the trial. The more the other party defies the heavy hand of the court in their orders, the more it is advantageous to you at trial. The Judicial endorsement page is very credible evidence that will carry significant weight with the trial Judge. I do suspect that it will question the other parties ability and capacity to parent the child effectively in the ongoing best interest of the child. In the interim, you could also bring forth a motion on the access issue before trial as the trail most likely will be many months away or spread over many months.

lv
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Old 01-11-2007, 10:53 PM
serrona serrona is offline
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ok...so what exactly is the judge's endorsement page?
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Old 01-11-2007, 10:56 PM
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serrona,

The endorsement page is the part of the continuing record where the Judge makes hand written notes, orders etc at case conferences, motion etc. Go to the court house and request a photo copy of same.

lv
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Old 01-11-2007, 11:23 PM
serrona serrona is offline
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Lv..you are a godsend! Once again, thank you!
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Old 01-12-2007, 05:55 PM
logicalvelocity logicalvelocity is offline
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serrona,

I came across this case [1.]in regards to what evidence is appropiate to submit into the trial record. Madame Justice Katarynych of the Ontario Court of Justice held the following view:

First, CIVIL PROCEDURE — Case management — Settlement conference — Confidentiality of settlement process — Despite consent of opposing party, court barred mother from filing affidavits and other motion materials from case management into trial record Family Law Rules do not allow blurring of distinction between motions and trials — Distinction is preserved by subrule 17(24) which prohibits judge who had conducted settlement conference of claim from presiding at trial of that claim and by requirement that parties prepare and file trial record distinct from continuing record — Affidavits filed in course of judicial case management not admissible at trial — likewise, transcript of comments of case management judge not admissible into evidence at trial.

Second, CIVIL PROCEDURE — Conduct of trial — Evidence — Judge as gatekeeper — Party has right to present complete evidentiary record, but that does not mean that anything and everything can be dumped into it despite consent of all parties — Rule 2 of Family Law Rules still requires any court (including trial court) to manage trial time firmly and to guard against wholesale dumping of material marginally relevant to issues to be decidedDocuments must be material to issues to be decided and not so collateral in value as to waste trial time — Court should adhere to rules of evidence, relaxing those rules in proportion to needs of particular trial and, even then, court should focus on both necessity and reliability of what party seeks to adduce into evidence — Despite father’s concession of carte blanche to mother at custody trial allowing her mother to file into evidence whatever she wanted, court still examined mother’s material and, where appropriate, barred its admission.

Third, CIVIL PROCEDURE — Evidence — Offers to settle — Use at trial — In claim for joint custody where court was examining level of co-operation that parties had demonstrated during litigation, it paid particular attention to various interim agreements that formed part of trial evidenceCourt refused, however, mother’s invitation also to examine offers to settleOffers to settle cannot be examined during trial and come before court only when it decides on liability and quantum of costs — Court had admitted father’s unsigned undated “offer”, but only to extent that it could corroborate his sworn testimony that had been put into some question at trial — Court’s focus there was on father’s testimony, not on this particular document.

Forth, CIVIL PROCEDURE — Evidence — Trial record — Evidence filed at settlement conference — Despite consent of opposing party, court barred mother from filing affidavits and other motion materials from case management into trial record — Family Law Rules do not allow blurring of distinction between case management motions and trials that would compromise confidentiality of settlement process — Distinction is preserved by subrule 17(24) which prohibits judge who had conducted settlement conference of claim from presiding at trial of that claim and by requirement that parties prepare and file trial record distinct from continuing record — Affidavits filed in course of judicial case management not admissible at trial.

Fifth, CIVIL PROCEDURE — Evidence — Trial record — Transcripts — Transcript of comments of case management judge — Under Family Law Rules, central goal of settlement conference is frank discussion of respective positions and merits of claims by parties in interests of narrowing scope of litigation Rules strive to protect confidentiality of this settlement process and it would be improper for trial judge to have access to comments made another judge made in course of judicial case management Transcript of comments of case management judge not admissible into evidence at trial.

Lastly, EVIDENCE — Documentary evidence — General — Admissibility — Judge as gatekeeper despite consent of parties — Party has right to present complete evidentiary record, but that does not mean that anything and everything can be dumped into it — Rule 2 of the Family Law Rules still requires any court (including trial court) to manage trial time firmly and to guard against wholesale dumping of material marginally relevant to issues to be decided — Documents must be material to issues to be decided and not so collateral in value as to waste trial time — Court should adhere to rules of evidence, relaxing those rules in proportion to needs of particular trial and, even then, court should focus on both necessity and reliability of what party seeks to adduce into evidence.


[1.] Z.(A.) v. W.(J.), 2004 ONCJ 158 (CanLII), http://www.canlii.org/on/cas/oncj/2004/2004oncj158.html

lv
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