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Settlement conference - is this normal? And next steps.

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  • Settlement conference - is this normal? And next steps.

    Hi

    So we just had a settlement conference. Not sure if this is usual, but then Again I am realizing that nothing is the norm in FL.
    They started late, as the previous case run over. Then the judge requested counsel only come into the room and he spent 30 mins or more with council. When our lawyer came out he had 15 mins to explain what the judge had decided would be the likely outcome of a trail.

    It was a bit of a shock but we decided it was durable and we're were close to working with it. The judge had the lawyers back in and the other party flat out refused it, so the judge brought our lawyer and Mom in and Dads lawyer and Dad was on the phone. They were there for 5 mins and apparently the judge only spoke with the lawyers again but Dad who was on the phone kept talking and commenting. Then Mom was sent out and Judge talked to the lawyers again and it was all over.

    Some money issues partially settled, no agreement on access and a motion for June 30 to sort out some summer access. As a trail will be set for January 2017.

    They do have a SA I place, but the wording was vague and no clear times, therefore no ability to plan ahead and every visit begun with an argument. So we wanted a graduated schedule in place, so life to could move on.

    My question. The judge had read the files and made up his mind before anyone said anything. So is that normal? Do judges have counsel in to discuss his ideas and not have the parents present?

    It all seemed a bit of a blur.

    And also, now we have looked at what the judge has indicated should be set up we can live with it. Do we suggest that we put in an offer that mirrors the judges offer. The Dad flatly refused it, but maybe will have thought about a costly trial over the next few days.

  • #2
    I would want details from your lawyer about the private conferences with the judge for a start.

    Comment


    • #3
      Well we did get the access schedule that the judge had set out. It was a bit rushed. Will the judge make some sort of written comments?

      Comment


      • #4
        I believe if you examine the purpose of a settlement conference it is to get both sides to agree to a settlement. Judge tells both parties (verbally), based on information he/she has read and heard to date, what decision would be should the matter go to trial. It is up to the parties to work out a settlement. Judge at the settlement conference acts as a facilitator. If it becomes apparent that sides are too far apart and not likely to come to an agreement, then trial date is set.

        Your daughter's ex is out of province is he not? This would be reason for judge to have read submissions prior to the conference especially as the other party and lawyer were participating via telephone.

        What specifically is the motion for in June?

        Comment


        • #5
          Ex is not out of province but is on the other end of the province, so yes it's a distance issue as well.

          Both counsels are local and were present. Only Dad was on the phone. He chose not to attend.

          The motion at the end of June is to put some interim summer access in place. We had offered close to what the judge had indicated but Dad was totally opposed and off the scale on the other end. Child is 4 has not seen that much of dad. 3 days since December and Dad wants all the summer.

          We had countered with a week in July and 10 days in August, and suggested we settle the access with graduated periods over the next 4 years.

          So we are close with what the judge has said, so with a little coaxing my daughter has come to accept what the judge indicates should happen. But Dad has said flatly no and his lawyer is telling him he will get 6 weeks this summer and to go to trail. Which his,lawyer,said would be a 3 week trial. I Think,that was a scare tactic. Neither parent has the funds to have a 3 week trial or a 3 day trial for that matter.

          As the trial would not be until January dads counsel asked for a motion be set to settle some access for this summer.

          Comment


          • #6
            In all of my D's case and settlement conferences, neither she nor her ex ever saw or spoke to the judge. It was always just the lawyers. Can't speak for exes lawyer but my D's lawyer would then come advise her of what happened.

            At the conference where the tide turned against her ex, judge leaned on ex to accept and sign a temporary 50/50 order( he had wrangled 6/7 overnights from the very first urgent motion judge based on lies and accusations). If he wouldn't sign, judge warned D could request a motion bringing the OCL report which was in her favour and ex wouldn't like the ruling. Ex signed. Judge also leaned on ex to participate in mediation. This had been previously ordered but ex ignored. Judge ordered that if mediation wasn't confirmed by a specific date(it was very quick), D could call for a motion at which ex could basically not make submissions, effectively giving my D great leverage. I believe the attractive female judge was not impressed when exes lawyer, at exes request stated that D could not be a good mother as she was so pretty that guys would always be hitting on her and this would affect her parenting.

            The ex signed on 50/50 and signed up for mediation, quickly.

            Comment


            • #7
              Dads counsel is off the wall crazy all over the place type of person. Even the judge had trouble following what he was on about.

              But that's his style. He really is not interested In Settling, just wants to go to trial.

              Comment


              • #8
                More money for the lawyers in trial. Not so much when they settle. Both my D's lawyer(second one, 1st one was ridiculously incompetent) and exes lawyer were pretty reasonable and wanted settlements. However, they were both being funded by LAO.

                Comment


                • #9
                  We have a 1000k between Mom and Dad. Child reside with Mom and she is the primary parent. Dad has exercised little of his access, which was unspecified but at his discretion.

                  He garnishes a good sum from,the CS to pay for travel expenses,which he has never fully used. Now he is citing expensive travel costs to justify less but longer access visits. He has only managed 3 per year, despite having the funds from CS to have a least 5 fully paid for trips, he does not want to put any extra money into access. Wants it all covered by child support money.

                  If we go to trial it will be messy of course. But the outcome is likely to be what the judge has suggested so the money we have wasted so far could have paid for many holidays for both Mom and Dad.

                  Comment


                  • #10
                    Originally posted by Beachnana View Post
                    They started late, as the previous case run over.
                    Normal. Especially if you get an experienced justice who feels the parties are close to settling matters.

                    Originally posted by Beachnana View Post
                    Then the judge requested counsel only come into the room and he spent 30 mins or more with council. When our lawyer came out he had 15 mins to explain what the judge had decided would be the likely outcome of a trail.
                    Very normal.

                    Originally posted by Beachnana View Post
                    It was a bit of a shock but we decided it was durable and we're were close to working with it. The judge had the lawyers back in and the other party flat out refused it, so the judge brought our lawyer and Mom in and Dads lawyer and Dad was on the phone. They were there for 5 mins and apparently the judge only spoke with the lawyers again but Dad who was on the phone kept talking and commenting. Then Mom was sent out and Judge talked to the lawyers again and it was all over.
                    Very normal. Generally judges go to chambers like this to avoid having the parties roll their eyes and talk over each other. Judges do this to remove the emotion from the air and get down to the brass tax on stuff.

                    Originally posted by Beachnana View Post
                    Some money issues partially settled, no agreement on access and a motion for June 30 to sort out some summer access. As a trail will be set for January 2017.
                    All normal stuff. A judge can make technical orders without the consent. So the motion and the set down for trial are all technical orders they can make. Depending on the financial stuff they can also order that (for example support).

                    Originally posted by Beachnana View Post
                    They do have a SA I place, but the wording was vague and no clear times, therefore no ability to plan ahead and every visit begun with an argument. So we wanted a graduated schedule in place, so life to could move on.
                    Unless both parties agreed then the judge had to move that to a motion or to trial for determination. Which you stated above is what happened. They can't make an order on a substantive issue like this in a conference.

                    Originally posted by Beachnana View Post
                    My question. The judge had read the files and made up his mind before anyone said anything. So is that normal?
                    Very very very normal. Conferences are about settling matters and soliciting settlement between the parties. It is not where you test evidence and argue something out.

                    Originally posted by Beachnana View Post
                    Do judges have counsel in to discuss his ideas and not have the parents present?
                    Very normal. This is quite common and is the responsibility of the lawyer whom you retained. They represent your wishes. Make sure the lawyer knows what your wishes are.

                    Originally posted by Beachnana View Post
                    It all seemed a bit of a blur.
                    Conferences are fast and not much time is spent. Unless the judge has some feeling that the parties will settle matters. Then they will invest significant time to get something done.

                    Originally posted by Beachnana View Post
                    And also, now we have looked at what the judge has indicated should be set up we can live with it. Do we suggest that we put in an offer that mirrors the judges offer. The Dad flatly refused it, but maybe will have thought about a costly trial over the next few days.
                    Yes, you make an offer to settle outlining everything stated in the endorsement or any other notes. That is the best next step. Every time you show up to a conference you will have to attach that offer to settle and the endorsement. That just demonstrates the unreasonableness of the other party to everyone. The judge put it in an endorsement for a reason. To tell the judge at the motion or trial they are dealing with a potentially high conflict litigant.

                    Good Luck!
                    Tayken

                    Comment


                    • #11
                      Tayken

                      Thank you for your comments. I was hoping you would chime in. Both,parents are on totally different ends of the scale. I am the Granmother and have spent the last weekend talking with my daughter to reassure her that we make the best decision,for her child and that is to follow what the judge has suggested.

                      Basically

                      Child 4 1/2 at this time

                      Christmas 1/2 of Christmas break odd/even years with Christmas Day on one or the other parents 1/2 Mom even, Dad odd. They have been doing this for the past 3 years.

                      March break. 2/1 split. We had wanted 1/2 and 1/2'or alternate. Judge suggested 2 years Dad, 1 year Mom

                      Easter - Dad. But Mom does attend church on a regular basis Dad does not and in reality Easter is often only 2 weeks after March Break, so we are suggesting a split of 1 in 3 Easters and May long 2 in 3split.

                      Summer. 2016. 1 week July. 2 weeks August
                      2017. 1 week July 2 weeks August
                      2018. 3 weeks
                      2019. 4 weeks
                      2020. 5 weeks
                      From then on 1/2 of Summer vacation

                      Dad has requested no other holidays but wants a clause that he can request other time at his discretion.

                      There are travel costs and an offset CS reduction already in place.

                      Does this seem reasonable. It's a big jump from the past 3 years when Dad has only set up a total of 15 days of access by his own choice. But the Child is older and he has married and has a spouse who he had said would assist in parenting.

                      We had already put in an offer similar to this, but Summer access was Capped at 2 - 2 weeks visits. After some graduation. That's the big leap for my daughter but I hope that we can move past that.

                      Btw. Dad wants 6 weeks for summer access now and a change of primary parent for 3 months of the year!

                      Comment


                      • #12
                        Originally posted by Beachnana View Post
                        Thank you for your comments. I was hoping you would chime in. Both,parents are on totally different ends of the scale. I am the Granmother and have spent the last weekend talking with my daughter to reassure her that we make the best decision,for her child and that is to follow what the judge has suggested.
                        It is always a good idea to consider what the judge says at a conference. Unless some major element of evidence which needs to be tested should be tested at motion or trial. But, a conference judge won't give an opinion if this is the case. They will just move matters to motion and trail without comment.

                        Originally posted by Beachnana View Post

                        Child 4 1/2 at this time

                        Christmas 1/2 of Christmas break odd/even years with Christmas Day on one or the other parents 1/2 Mom even, Dad odd. They have been doing this for the past 3 years.
                        Then this should remain as the status quo. Don't do the silly mid-day-Christmas-day-exchange-nonsense. Ever. Who wants screaming kids who just opened Christmas presents to have to leave them behind?

                        Originally posted by Beachnana View Post
                        March break. 2/1 split. We had wanted 1/2 and 1/2'or alternate. Judge suggested 2 years Dad, 1 year Mom
                        It all depends on the actual regular access schedule. If dad isn't a 50-50 access parent then that is why the judge made this recommendation.

                        Originally posted by Beachnana View Post
                        Easter - Dad. But Mom does attend church on a regular basis Dad does not and in reality Easter is often only 2 weeks after March Break, so we are suggesting a split of 1 in 3 Easters and May long 2 in 3split.
                        I wouldn't bother with this one. Most custody and access evaluators put Easter in the "where it falls in the regular access schedule" section and don't make special provisions. Don't go to motion for something so trivial and petty in my humble opinion.

                        Originally posted by Beachnana View Post
                        Summer. 2016. 1 week July. 2 weeks August
                        2017. 1 week July 2 weeks August
                        2018. 3 weeks
                        2019. 4 weeks
                        2020. 5 weeks
                        From then on 1/2 of Summer vacation
                        Holy crap that is weird. Why not just even split the summer on a week-about-basis and be done with it? You don't need to do any of this weird vacation planning in the summer.

                        Originally posted by Beachnana View Post
                        Dad has requested no other holidays but wants a clause that he can request other time at his discretion.
                        Those are all the standard holidays that a court will consider. I wouldn't agree to "at anyone's discretion" stuff in an order or offer or settlement. Those will always backfire.

                        The matter should be a 2-2-3 access schedule with the standard vacation provisions that come with this access schedule. It should be 2-2-3 until the child reaches the age of 5 then it should switch to a 2-2-5-5 access schedule and the summer should be week-about access. split the holiday in half based on the school calendar. Rotate march break.

                        Why have such a confusing order that no one will really understand.

                        Originally posted by Beachnana View Post
                        There are travel costs and an offset CS reduction already in place.
                        If CS is calculated on offset then you are 50-50 mostly. You can end the court motion with a standard 2-2-3 or 2-2-5-5 access schedule with the regular provisions for the standard holidays.

                        Originally posted by Beachnana View Post
                        Does this seem reasonable. It's a big jump from the past 3 years when Dad has only set up a total of 15 days of access by his own choice. But the Child is older and he has married and has a spouse who he had said would assist in parenting.
                        Reasonable would be a 2-2-3 or 2-2-5-5 access schedule with standard vacation allocations.

                        Originally posted by Beachnana View Post
                        We had already put in an offer similar to this, but Summer access was Capped at 2 - 2 weeks visits. After some graduation. That's the big leap for my daughter but I hope that we can move past that.
                        The court doesn't consider your daughter's best interests... They only consider the child's. If your daughter is struggling and emotional about 50-50 access with a parent a court will sniff it out of her. She will be called to the stand and the other lawyer will peal out her anxieties. It could go VERY BAD for her. If she is an anxious person who needs significant assistance from a parent(grand) she will NOT do will under cross examination.

                        I highly recommend you settle as if the other lawyer under cross examination paints her as anxious and the other parent as solid and in a good marriage she could simply be paying costs for a standard 50-50 access arrangement.

                        Originally posted by Beachnana View Post
                        Btw. Dad wants 6 weeks for summer access now and a change of primary parent for 3 months of the year!
                        The term "primary parent" is bullshit and should be avoided. Just tell your daughter to go 50-50. Unless the dad is a danger to the child and depending on what area you are in (Hamilton or Toronto) it may end up 50-50 depending on the trial judge. If you get Czutrin in Toronto you will get a 50-50 standard order unless there is some serious issues with Dad.

                        I would not advise you or your daughter to risk a trial over trivial stuff like this.

                        Good Luck!
                        Tayken

                        Comment

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