First Case Conference is coming up - What should I expect procedurally ?

plainNamedDad44

plainNamedDad44

New member
Hi all,

CC coming up. I have served my CCB, and I have theirs. The listed "issues" for the CC is somewhat similar, but there are differences. The orders sought are obviously quite different too.

So what happens, does one party present their brief, and the other theirs, and then the judge rules ?
 
first the moving party (who started the motion) talks, then the responding party, then the moving party again.
Then the judge comes up with a decision or if she needs more information he/she books another CC.
 
My understanding is....the first judge to hear the initial case conference is also the one who would sit in, if a trial were to happen.

Thus, an opinion of how the trial would go will be dictated from the initial meeting.

Not sure if this is accurate or not but this is how it was explained to me. I am in the same boat as mine comes up in Oct.
 
In a CC, I didn't think a judge would make final decisions unless there was advance notice that a party would be requesting a motion be made at the CC... Not sure on this. My experience with CC:

I filed motion to change (CS only to table amount). Self-rep.

X eventually (after two CCs where he didn't show up) filed a response and asked for access changes. At the second CC that X didn't attend, the judge ordered temporary CS increase.

I got a lawyer and amended my motion to change to ask for CS table and retro CS as well as S7. Also asked for OCL involvement.

Attended the 3rd CC, X was there. Judge gave advice on resolving access (basically told X to get off his ass and make an effort to see S15 and not just on his own terms) didn't address retro or S7 at all, judge gave temporary order for even more CS increase than the previous judge. Order - First Xs lawyer presented their position, then my lawyer presented. Judge gave advice.

Set date for SC.

Received notice that OCL would take case. Moved SC date into October to give time for OCL to do their work.
 
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OK, no offense to everyone but you are all wrong in one way or another. (Actually Qrious has it right.)

So what happens, does one party present their brief, and the other theirs, and then the judge rules ?
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The brief is for the judge/DRO to read beforehand. You do not "present it" in the way you are implying. You may or may not get a chance to "present"; you may just receive questions from the judge.

You should not address the other party unless you are invited to by the judge. You are speaking to the judge, and you speak by invitation or by putting up your hand.

The brief is essentially an agenda for the meeting, it should detail the issue that you wish brought up at the meeting. If you brief is 200 pages you are pretty much guarenteeing it will not be read.

The judge does not "rule" in the way you are implying. The judge should not make orders unless both parties consent, unless they are proceedural. If you make a request for an interim order in the brief, the judge will consider it. Some requests for an interim order may be made without consent, especially for things like child support, because child support is seen as the right of the child. There shouldn't be final orders for access.

A judge who sits at a conference WILL NOT BE YOUR TRIAL JUDGE. They are there to mediate a possible settlement, so they are party to settlement discussions, so they have prejudiced themselves, and would be biased and would not be able to sit at your trial.
 
first the moving party (who started the motion) talks, then the responding party, then the moving party again.
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This is what happens in a motion, not a case conference.

Then the judge comes up with a decision or if she needs more information he/she books another CC.
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- Judges do not make decisions at conferences.
- You do not have motions before the case conference, unless they are urgent or procedural.
- It is rare for parties to have more than one case conference. Generally, this only happens if it needs to be adjourned (party not prepared, etc); however, most people in those cases have the conference bumped without having to attend.

the first judge to hear the initial case conference is also the one who would sit in, if a trial were to happen.
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This is not correct.

In a CC, I didn't think a judge would make final decisions unless there was advance notice that a party would be requesting a motion be made at the CC
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- A final decision can only be rendered at trial. Motions produce interlocutory relief, not final. (motion to change exceptional)
- Motions do not happen at case conferences.

judge gave temporary order for even more CS increase than the previous judge.
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A judge does not have the power to do that. I don't doubt your story; I suspect the judge asked your ex if they thought it was fair (and thus obtained their consent). Some judges find it useful to forget the limits on what can be ordered at a conference if the result (should the matter be litigated) is very clear and a party is being obstinate.

Order - First Xs lawyer presented their position, then my lawyer presented. Judge gave advice.
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I will comment, every judge has their own conference style. Usually the Applicant gets the ball rolling, but sometimes the judge will direct the dialogue by asking questions, or if only the respondent has a lawyer they may start. With certain judges, it is closer to a conversation than a motion.

You should not address the other party unless you are invited to by the judge.
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Sound advice.

interim order may be made without consent, especially for things like child support
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Orders can be made that support be continued, but not to adjust the quanta of payments. See above.
 
Mess said:
A judge who sits at a conference WILL NOT BE YOUR TRIAL JUDGE. They are there to mediate a possible settlement, so they are party to settlement discussions, so they have prejudiced themselves, and would be biased and would not be able to sit at your trial.
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Mess, and everyone. My lawyer (I am self rep'ing but working with lawyer on back end) indicated that a case conference is *WITH* prejudice. A settlement conference is *WITHOUT* prejudice. So apparently what ever occurs in the case conference is on record and can be used against you.

Important distinction. Can someone confirm/refute please ?
 
AFAIK, at a CASE CONFERENCE settlement discussions are without prejudice, but procedural discussions, and evidence provided for interim orders would be with prejudice. However that evidence would also be admitted at trial, so I don't see what your fear is.

I'm not sure if this is what you are asking, but the Case Conference judge may not sit at your trial for the reasons I stated, no matter if some of the material discussed is with prejudice or without.

The case conference brief is disposed of after the conference. It does not become part of the continuing record.

Here is the practical reality: At a case conference, you state that you would be willing pay a couple of years of spousal support in order to achieve an out of court settlement. At trial, can this be used as proof that you admit there is entitlement to spousal support? No, because that part is without prejudice.

I can't think of any practical example of something that would be "used against you" so if you could provide an example of what you are worried about, then we can clarify it.

At Case Conference: "Mr. Ex wrote me this email stating such-and-such." "Yes, your honour I wrote that but ...."

At Trial: "Mr. Ex wrote me this email..." "No, your honour, I never wrote that, Ms. Ex must have faked that email."
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Unless it is a situation like this. If you are being above board, I don't know what the issue would be.
 
Mess said:
..... I can't think of any practical example of something that would be "used against you" so if you could provide an example of what you are worried about, then we can clarify it.
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Here is an example. I am writing an Offer To Settle. In it, she can have SOLE custody, IF I have a say on medical and educational issues, AND I have an equal share of holidays and alternating weekends. I will (have been) pay table CS.

In my pleadings, I am fighting for joint custody. I understand that I *CANT* disclose my OTS position in the Case Conference, while I understand that I can at a Settlement conference.
 
BTW, I assume that I will be able to call on items/exhibits in the continuing record to argue my position during the case conference. Is this correct ?

Thanks for everyone's help.


PND
 
Mess said:
A judge who sits at a conference WILL NOT BE YOUR TRIAL JUDGE. They are there to mediate a possible settlement, so they are party to settlement discussions, so they have prejudiced themselves, and would be biased and would not be able to sit at your trial.
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Now, you're MESSing with me again :)

I was told the following........

firhill said:
FWIW

The trial coordinator (I spoke with today) answered the question as follows:

Any judge that heard a case conference or trial management conference can also preside over the trial.

It is that only the judge that heard the settlement conference that is precluded from being the trial judge, notwithstanding the "child protection" exception.
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........ and Orleans Lawyer explained why here.
 
firhill said:
Now, you're MESSing with me again :)

I was told the following........



........ and Orleans Lawyer explained why here.
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Firhill, thanks for the excellent post.

My inclination is *NOT* to discuss settlement at the case conference. Instead I will rely on a formal offer to Settle and a Settlement Conference.

Thoughts ?
 
In it, she can have SOLE custody, IF I have a say on medical and educational issues
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You seem to want divided custody, and to make her accept it under the banner of sole custody. There are issues with this.

The case conference brief is disposed of after the conference. It does not become part of the continuing record.
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Please see Rule 17.22 -
CONTINUING RECORD, CASE CONFERENCE BRIEFS

(22) Case conference briefs do not form part of the continuing record unless the court orders otherwise and shall be returned at the end of the conference to the parties who filed them or be destroyed by court staff immediately after the conference. O. Reg. 89/04, s. 8 (5).
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Case conference briefs may form part of the continuing record, albeit only in rare circumstances.

Settlement conference briefs may not because the SC is entirely without prejudice. In a case conference, only the settlement discussions (as are all settlement discussions) without prejudice.

I assume that I will be able to call on items/exhibits in the continuing record to argue my position during the case conference. Is this correct ?
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This is not correct. The judge will not be looking at evidence or listening to submissions. Either the two sides agree, or the judge will give some feedback. How much feedback depends on the judge; some will keep parties there for hours discussing things, others are content to boot them out after twenty minutes if it is clear they won't be settling.

My inclination is *NOT* to discuss settlement at the case conference. Instead I will rely on a formal offer to Settle and a Settlement Conference.
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While it is your right to do so, if you have all of the information you need to settle, why not make an earnest effort to see if you can?

At a case conference, the judge can endorse your minutes of settlement and thus see the matter put to rest on a final basis.
 
OrleansLawyer said:
... In a case conference, only the settlement discussions (as are all settlement discussions) without prejudice.
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So, if I say something like "she can have sole custody if I have liberal access" that is noted as settlement discussions. Who/What decides what is with and without prejudice during a case conference ? I would hate to weaken my chances at maximizing access.


OrleansLawyer said:
While it is your right to do so, if you have all of the information you need to settle, why not make an earnest effort to see if you can?

At a case conference, the judge can endorse your minutes of settlement and thus see the matter put to rest on a final basis.
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Are minutes of settlement done using a Form 0 ?
 
Are minutes of settlement done using a Form 0 ?
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In an ideal world, yes. However, most of them are hand written because you are hammering out the details in the hallway.

So, if I say something like "she can have sole custody if I have liberal access" that is noted as settlement discussions.
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That could be your position, although a judge is likely to be concerned that you are giving up custodial rights yet want to remain involved with your child via access.

Who/What decides what is with and without prejudice during a case conference ?
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If you think they are disclosing without prejudice communications then you would move to have them struck from the record.

I would hate to weaken my chances at maximizing access.
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An offer to settle may lay out your position to the other side in a comprehensive fashion.

You may wish to speak to duty counsel, or retain a lawyer, to better appreciate the consequences of giving up custody if you have not already done so.
 
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