A View from the Bench (Solid advice)

[Tayken]

Hi All,

Others may disagree but, this posting and article qualifies as a "sticky" post:

Family lawby The Honourable Mr. Justice D. Roger Timms
Ontario Superior Court of Justice (Family Court Branch)
A view from the Bench
http://www.practicepro.ca/LAWPROMag/ViewfromBench.pdf

Firstly, the article starts up with this very wise statement:

Family law files, by their very nature involve emotional, if not “difficult” people and situations.1 On occasion, we judges can be difficult as well. Too frequently we see matters where counsel have taken shortcuts, or even skipped some basic and fundamental steps.

In this article, I highlight some basic "dos and don'ts" that should help guide you through the maze of case management, while also reducing judicial ire.

Which are in summary:

1. File conference briefs and confirmations on time

... As of last July, the whole province has been subject to the Family Law Rules. I believe that one year is more than enough time for counsel to familiarize themselves with the requirements of those rules – even for Toronto counsel!

2. File complete and up-to-date financial statements

...the filing of up-to-date and corrected financial statements appears to be a problem. The provisions found in Rule 13(12) through 13(15) are quite clear and not that onerous.

3. File meaningful conference briefs and confirmations

It is relatively easy for counsel to file a 14C that tells the judge to “read all of the file.” It is relatively easy to simply tick off the boxes
in the forms required under Rule 17. It is also relatively useless. Case management lists are significant. Each file requires at least ten minutes reading by the judge to properly prepare. We do not
have the time to read the whole file.

4. Proofread all documents

In this era of spell check, we all need to carefully proof read our final work. Relying on “quick correct” or the abilities of those who type the document can lead to hilarious or just plain confusing results. Judges are old-fashioned enough that we expect counsel to properly employ the basic rules of grammar.

5. Be on time and attend when a conference is scheduled

In fact, come early so that you don’t have to say to the judge “could we please hold this case down your honour, we have just begun settlement discussions.” Confirm the date with your client and make sure that she or he comes, unless already excused by the court. Remember that the first listed purpose of all conferences is to “explore the chances of settling the case.”4 That is very difficult without both clients in attendance.

6. Anticipate questions from the judge

The judge presiding at a conference is likely to pose questions.
Prepare yourself and your client. The more formulistic in nature the pleadings, the more pointed those questions are likely to be.

7. Make offers (to settle)

Do submit a reasonable offer under Rule 18 of the Family Rules and do so at all stages. I see an extraordinary number of cases where no offer at all has been made. A failure to submit a considered, reasonable offer can have disastrous consequences as a result of Subrule 18(14).

8. Be civil

Unfortunately, notwithstanding recent attempts to promote greater civility in litigation, some counsel seem determined to act otherwise. A theatrical, fractious, belligerent attitude or a gross exaggeration of facts, serves no one’s interests. A calm, prepared, stick-to-the-facts, an I-am-here-to-settle-this-case, approach serves everyone’s interests.

9. Mediation and other FLIC services

Remember that all Unified Family Court sites have both Family Law Information Centres and mediation services available. Mediation may be available immediately on site. Take advantage of that. Could your clients benefit from attending a parent information session? Send them to the FLIC.

Thank-you Honourable Mr. Justice D. Roger Timms for writing such an excellent article. Although one would think that it shouldn't be necessary it is.

Good Luck!
Tayken

[Beachnana]

Thank you. This is great information. Going to print this out for future reference. We were lucky enough to have a young but great legal counsel who certainly followed all this advice. Made a huge difference in the resulting settlement. Bit its good to see it in writing. Makes a lot of sense

[engineer]

This is interesting to me, and helpful.

My ex and I are heading towards a case conference. My lawyer is very diligent - he writes well, he's concise, and he follows the rules. The application and subsequent reply were clean and clear.

My ex's answer was a bit of a mess. Instead of identifying what claims he agreed/disagreed with, or parts thereof, he addressed my supporting paperwork. He definitely wrote it, entirely. I am not blaming him - I understand the emotion. The problem is that it doesn't look like his lawyer even read it. It is inconsistent, sloppy, disordered, etc, but most important, it doesn't address any of my claims and doesn't offer any support for his.

I know that the judge will only look at the application, answer, and reply if he/she wants clarification, but based on everything else we have received, this is looking like a trend that will continue on the brief. His lawyer is pasting his unedited words onto her letterhead and signing it, but not much else.

The question is: how badly can this hurt me at the case conference or anything else going forward, if at all? I am a little worried...

[mememe]

my ex has never had proper or correct financials--even though my lawyer and I inform of errors and they have our financials and nfp

the judge at settlement said: maybe he is not good with numbers

his lawyer admits financials could be better

so...what do they do---- they send an offer based on all their incorrect numbers although we sent then updated info.

Paperwork, in the court system, in my opinion, is a joke

[wretchedotis]

Where is the "Like" button?