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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 09-01-2012, 06:30 PM
Smurfette Smurfette is offline
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Default same judge for trial management conference?

If a resolution isn't reached at settlement conference and things proceed to a trial management conference, is it the same judge as the SC or a different one? And/or the same one for the TMC as for the trial?
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Old 09-01-2012, 10:04 PM
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Default trial judge

the answer is no,the CC,SC judges will not be the trial judge best of luck,raven
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Old 09-02-2012, 12:21 AM
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Originally Posted by raven70 View Post
the answer is no,the CC,SC judges will not be the trial judge best of luck,raven
Raven70 is correct and here is why:

Family Law Rules: Rule 17 - Conferences states...

Quote:
CONFIDENTIALITY OF SETTLEMENT CONFERENCE

(23) No brief or evidence prepared for a settlement conference and no statement made at a settlement conference shall be disclosed to any other judge, except in,
(a) an agreement reached at a settlement conference; or
(b) an order. O. Reg. 114/99, r. 17 (23).

SETTLEMENT CONFERENCE JUDGE CANNOT HEAR ISSUE

(24) A judge who conducts a settlement conference about an issue shall not hear the issue, except as subrule (25) provides. O. Reg. 91/03, s. 6 (4).


EXCEPTION, CHILD PROTECTION CASE

(25) In a child protection case, if a finding that the child is in need of protection is made without a trial and a trial is needed to determine which order should be made under section 57 of the Child and Family Services Act, any judge who has not conducted a settlement conference on that issue may conduct the trial. O. Reg. 91/03, s. 6 (4).
To better explain...

1. The confidentiality of the "mediation" at a "Conference" (Settlement, Case, or Trial) is an attempt to negotiate a resolution. 17.(24) requires that the information disclosed at a "Conference" be held in confidence and not used elsewhere. This means you can't say, attach a brief submitted at a conference to an affidavit, or state something said at a conference unless it is in relation to something that was actually settled and reflected in an endorsement/order.

2. Rule 17.(25) strictly forbids it unless it is a "child protection" case. This is the only allowable exception to the Rule.

In smaller court jurisdictions you will likely see the same judge for various "Conferences" on a number of times but, the justice hearing a motion and/or trial will never be the same judge who you have appeared before for a "Conference".

This is because at a conference you are trying to "settle" matters and at a motion and/or trial you are "litigating" a resolution and presenting arguments.

A lot of negative advocate solicitors will let their clients file 30+ page briefs with all sorts of schedules for a "Conference" at times. The should (and do know better) that this is just a way to run up their clients bill. Most courts, (i.e. Brampton Superior Court/Toronto) actually have guide lines and Rules concerning the allowable length for a "brief".

Supporting case law:

Bordynuik v. Bordynuik, 2008 CanLII 39219 (ON SC)
Date: 2008-08-06
Docket: 732/04
Parallel citations: 55 RFL (6th) 126
URL: CanLII - 2008 CanLII 39219 (ON SC)
Citation: Bordynuik v. Bordynuik, 2008 CanLII 39219 (ON SC)

Quote:
Rule 17 (23)

[2] Before addressing the main issue, I wish to comment briefly on the submissions filed by counsel. Rule 17 (23) provides:
No brief or evidence prepared for a settlement conference and no statement made at a settlement conference (emphasis mine) shall be disclosed to any other judge, except in,

(a) an agreement reached at a settlement conference; or

(b) an order.
[3] It is clear from that rule that discussions occurring at the settlement conference are intended to remain confidential. No exception is listed for submissions on costs; nor is there any exception for comments made by the presiding conference judge. In my view that is intentional on the part of those that drafted the rule. Consequently, I do not intend to attach any weight to those comments included in the submissions that breach this rule nor will I increase potential liability for costs on the part of the respondent based on conduct or actions contrary to the opinion expressed.

[4] Although not directly on point, I note that Pazaratz, J., in Entwistle v. MacArthur [2007] O.J. No. 1958, faced a similar problem when addressing the issue of costs and offers to settle attached to settlement conference briefs. He concludes at paragraph 32 of that decision:
Combined with subrule 17 (24) (“A judge who conducts a settlement conference about an issue shall not hear the issue...”), it is clear that the insular nature of settlement conference materials and discussions is intended to be impermeable.
[5] The issue of referring to opinions expressed by judges at settlement conferences has come up before in a number of cases, and clearly, the conclusion by the courts has emphasized the inappropriateness of this type of argument. At paragraph 4 in Savoie v. Richard [2004] O.J. No. 5140, Perkins, J. wrote:
The mother’s costs submission contains some irrelevant and improper material....It is also improper to report another judge’s opinion on the merits of the case expressed in the course of a case conference or settlement conference. See subrule 17 (23) respecting statements at a settlement conference.
[6] Similarly, in Sloss v. Forget [2005] O.J. No. 747, Linhares De Sousa, J. stated at paragraph 8:
I add one last comment. I found it disturbing the way both counsel took the liberty to share with this court in their written submissions on costs their various recollections of the discussions that went on in the settlement conference as well as the recommendations and opinions of the presiding judge at the settlement conference. My reading of r. 17 (23) ... indicates to me that discussions that go on in the course of a settlement conference should be kept confidential except in “an agreement reached at a settlement conference” or “an order”. I would hope that both counsel will remember this rule in the future.
[7] Finally, Mackinnon, J. noted in Guy v. Tulloch [2004] O.J. No. 2198 at para.8:
In my view, Family Law Rule 17 (23) is clear authority against my being told of the settlement conference recommendations, even on the issue of costs...
[8] While there is no specific rule that speaks about the confidentiality of case conferences, it is my view that the same limitations should apply, particularly when it relates to settlement discussions, including judicial opinions or suggestions in that regard. It is commonplace for parties and the presiding judge at a case conference to enter into that realm, whether related to attempts to resolve or avoid a potential temporary motion or the main application. People are encouraged to talk openly and frankly in that setting on the understanding that these comments will not go outside of the conference setting. As well, they often look to the presiding judge to offer an opinion on the positions being taken. To open up what has been said at a later time will inhibit and negatively impact on those settlement discussions.
Good Luck!
Tayken

PS: I just heard the collective scream of 1000 negative advocate solicitors cry out in pain.

Last edited by Tayken; 09-02-2012 at 12:56 AM.
  #4  
Old 09-02-2012, 02:16 AM
firhill firhill is offline
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Quote:
Originally Posted by Tayken View Post
1. The confidentiality of the "mediation" at a "Conference" (Settlement, Case, or Trial) is an attempt to negotiate a resolution. 17.(24) requires that the information disclosed at a "Conference" be held in confidence and not used elsewhere. This means you can't say, attach a brief submitted at a conference to an affidavit, or state something said at a conference unless it is in relation to something that was actually settled and reflected in an endorsement/order.

This is because at a conference you are trying to "settle" matters and at a motion and/or trial you are "litigating" a resolution and presenting arguments.
Tayken,

Would a (closed) mediation report from an outside mediator fall under the same restriction?
As in, I can't attach a copy of the report as an exhibit at a motion hearing?
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Old 09-02-2012, 09:14 AM
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Originally Posted by firhill View Post
Tayken,

Would a (closed) mediation report from an outside mediator fall under the same restriction?
As in, I can't attach a copy of the report as an exhibit at a motion hearing?
That would be bound to the agreement between the two parties and the mediator attending mediation. Those usually fall within the "WITHOUT PREJUDICE" rules of information. But, it would be all governed by the contract between you, the other party and the private mediator in their contract.

Most mediation agreements restrict both parties ability to call the mediator as a witness should matters move forward before the court or arbitration etc...

Basically, it all depends on the details of the contract that was signed between the three parties.
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Old 09-02-2012, 09:39 AM
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Closed mediation means the proceedings can't be brought up in court later. Open mediation means you may use any information from mediation later in court.
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Old 09-02-2012, 12:47 PM
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Default

But one can bring up the fact closed mediation was attemped at trial, correct? One can also state whether mediation was suggested by applicant or respondant, and that its attempt failed.

My understanding is that the 'occurance' is ok to talk about at trial, just not the 'details' of the occurance.

A small detail, but I always wanted to let the Judge know just who was shaking the tree hardest in search of compromise and solutions.
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Old 09-02-2012, 03:04 PM
firhill firhill is offline
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Thanks for the replies everyone.

Quote:
Originally Posted by wretchedotis View Post
A small detail, but I always wanted to let the Judge know just who was shaking the tree hardest in search of compromise and solutions.
This is what I was trying to accomplish.

I was wondering if it was OK to mention, in the affidavit in support of my motion, something like:

......As per the mediator's report, that both myself and Respondent agreed to, I went to the Respondent's residence to pick up the child for our first visit away from the Respondent's home. Upon arriving, the Respondent told me she changed her mind.

Is it likely the judge would frown upon my adding the bolded part above?

If so, could I just simply mention that we agreed on this access visit but when the time occurred, the Respondent changed her mind, (even though the agreement was made at mediation).

I just don't want to have the judge reprimand me, if it's something I obviously shouldn't be doing.

Thanks again
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Old 09-02-2012, 03:08 PM
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Quote:
Originally Posted by firhill View Post
Thanks for the replies everyone.



This is what I was trying to accomplish.

I was wondering if it was OK to mention, in the affidavit in support of my motion, something like:

......As per the mediator's report, that both myself and Respondent agreed to, I went to the Respondent's residence to pick up the child for our first visit away from the Respondent's home. Upon arriving, the Respondent told me she changed her mind.

Is it likely the judge would frown upon my adding the bolded part above?

If so, could I just simply mention that we agreed on this access visit but when the time occurred, the Respondent changed her mind, (even though the agreement was made at mediation).

I just don't want to have the judge reprimand me, if it's something I obviously shouldn't be doing.

Thanks again
If you have a signed agreement as a result of the mediation then it can be brought up and the signed agreement, which is legally binding, can be used... It is just like a court order.
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Old 09-02-2012, 03:57 PM
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Quote:
Originally Posted by Tayken View Post
If you have a signed agreement as a result of the mediation then it can be brought up and the signed agreement, which is legally binding, can be used... It is just like a court order.
Tayken,

I'm pretty sure I can't use the report.
Was just hoping to "mention" it as an example of where the Respondent agreed to something but then reneged.

The mediator at the two sessions had both the Respondent and myself sign the handwritten jot notes & recommendations that she took as the sessions progressed.

After the last session, she typed up a Memorandum Of Understanding, on the company letterhead, based on her notes but that itself is not signed by either the myself or the Respondent or the mediator.
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