Divorce lawyers have stepped into the hallowed halls of a Courthouse so many times that it is second nature to us. We are in our element in a place that can be alien, and very daunting, to others. So, each time we enter a Courthouse with our client, we need to remind ourselves that this is, almost certainly, a first for them. Our clients are generally highly stressed and uncertain as to the process. They are nervous as to what will be asked and expected of them. I’ve had clients report that they have experienced sleeplessness, weight loss, lack of productivity in their work and home lives and other physical and emotional challenges due to the stress of an upcoming a Court attendance. It shouldn’t have to be this way.
So, today, allow a seasoned family law lawyer to take away some of the mystery and anxiety that is associated with a Court attendance, by introducing you to the most common family law Court appearance – the Conference. Armed with information, you will see that a Conferences is not as intimidating as you might imagine. In fact, it is a vehicle for good.
The large majority of family law Court cases are resolved in, or as a result of, a Family Court Conference. Given the cost, toxicity and complexity of a family law Trial, generally, less than 10% of family law cases before the Courts proceed to a Trial. Thus, most peoples’ experience of Family Court is the context of a Family Court Conference.
An Opportunity for Good
The framers of the Ontario Family Law Rules1 (“the Rules”) realized that, where families are involved, there is a strong incentive to maintain goodwill, cooperation and communication between spouses. Generally, the parties will have to work together long into the future, sharing, raising and nourishing their children. Thus, it is best to offer them an opportunity to settle their issues, with decency and goodwill, rather than driving a case in to an unhealthy battle – with winners, losers and punishing costs. A Conference provides separating spouses with an opportunity to settle their issues, without an argued step in the Court process.
The goal of maintaining goodwill is given such importance that, except in exceptional circumstances, the Rules, require that a Conference be held in advance of any argued step in the Court process. Thus, a Conference is an early opportunity for separated spouses to resolve all issues and move forward with their lives, with dignity and civility. You and your family law lawyer should approach each Conference with great seriousness. Your family law lawyer should be armed with all required information and should be fully prepared to resolve as many issues as is possible. You should support your family law lawyer in this goal, by generating all the information that they seek in a timely manner. A great family law lawyer will take full advantage of the opportunity that a Conference provides.
A Conference is Not About Argument
At your Conference, the Conference Judge will receive information about the issues that you and your partner wish to resolve and your proposals for resolution, from written documents (the parties’ Conference Briefs) and from the family law lawyers’ verbal submissions to the Court. Because the goal of the Conference is to achieve settlement, submissions that are attacking, provocative and argumentative are discouraged both by the Rules and by the Conference judge. Rather, each party is invited to lay out his/her concerns; interests; relevant facts and circumstances; and ideas for settlement. The Conference is not about rehashing past harms, arguing, rendering judgments or identifying winners or losers. It should be a safe space in which to cultivate ideas for winning solutions for all participants. If your family law lawyer attempts to be provocative, argumentative, or otherwise adversarial in the Conference, they are not the divorce lawyer for you, as they would have failed to understand and implement their brief – and they would have undermined your chances for settlement.
Whether you attend your Conference in person, or via Zoom, the protocols of the Court are expected to be respected. Business quality attire is optimum – but, in any event, a crisp, neat appearance is expected. Generally, the environment should be positive and respectful, in order to foster the calm, creativity and goodwill that is the fuel for settlement. The Conference Judge should be referred to as “Your Honour.” No party should talk over any other participant, and orderly, civil conduct is expected. No food or drink should be brought into the physical Courtroom or the Zoom Conference room.
The party who initiated the Conference will have an opportunity to speak first. If he or she has a family law lawyer, they will speak on his/her behalf. The responding party, or his/her family law lawyer, will then have an opportunity to speak. The Conference judge will typically ask questions and encourage creative ideas and solutions. Generally, where family law lawyers are present, most communication on behalf of the parties is done by their family law lawyers, but each judge manages his or her Courtroom differently. Some Conference judges speak directly to the parties and ask them questions. If the judge asks a party a question and, they are not comfortable answering, typically, they can defer to their family law lawyer. The Conference judge’s questions will be geared toward acquiring information to help with a settlement plan, so the parties should not feel unduly stressed, or under scrutiny, when speaking to the Conference judge.
A Conference is About Solutions
The Rules require the parties, and their family law lawyers, to confer about settlement in advance of their family law Conference. Where the parties have come to agreement on certain issues, this can be communicated to the Conference Judge who can make an Order to firm up their agreement. Where there are issues about which the parties still don’t agree, the goal of the Conference will be for the parties to generate solutions to these issues. This means being flexible; creative; giving and taking; trading off claims; and reality testing, among other solution-generating skills. Each party, and his/her family law lawyer, is expected to display these skills and generate settlement options that might be workable for all, and optimum for any children.
Judges Input as to the Strength of Each Case
After hearing from the parties and their divorce lawyers, a Conference judge may comment on the likelihood of success of either party’s position before the Court, were the issue in dispute to be argued. This is not always done, as each judge will be conscious of the fact that the full breadth of information necessary to make a decision may not be before him or her at the Conference stage. Having noted this, a judge may comment that, if certain conditions or facts can be established, then a particular outcome would likely arise. This allows the party with a weak position to reconsider his or her expectations around the issue. Parties should carefully and seriously consider the input of their family law Conference judge, who will generally be very experienced in relation to the issues in play. Generally, a party should be hesitant to test his/her fate in relation to an issue at an argued stage if a Conference judge has suggested that his/her position is not strong.
Recommendations for Settlement
After hearing from the parties and their divorce lawyers, the family law Conference judge will make recommendations.
Where more information is needed, or there is a need for assistance from third parties or experts, the judge will make recommendations for the completion of these tasks before making recommendations for the settlement of substantive issues. Where there is sufficient information to reasonably evaluate substantive issues, the judge will make recommendations for the settlement of these issues.
Save in narrow circumstances, a Conference judge cannot make an order at a Conference. Examples of some of the limited situations in which a judge may make an Order at a Conference might include: a procedural order to produce evidence or information; an order to preserve property that is in dispute; or an order continuing the payment of periodic amounts required to preserve an asset or a benefit to one of the parties and the children. This means that in the Conference context the vast majority of issues before a family law judge will only be addressed by way of judicial recommendations. It is important to understand that these are recommendations – not orders. This means that the parties are not bound to accept them. Each party is, generally, invited to confer with his/her respective divorce lawyer to understand and consider the judge’s recommendations.
If each party accepts some, or all, of the recommendation of the Conference judge, then those issues about which there is acceptance will be turned in to a Court Order. Even if all issues are not settled at your Conference, good divorce lawyers and an effective Conference judge will make sure that your case is advanced, by identifying procedural steps that must be taken to move the matter forward, setting timelines for next steps and narrowing outstanding issues.
Making the Most of Your Conference
A Conference judge’s recommendations are not binding. However, most Justices sitting in the Family Court have many, many years of Family Law experience. They will be able to give you strong, reliable guidance as to where your case might land were you to take it to an argued step. Thus, the recommendations of the Conference judge should be treated with respect and given strong consideration. If you have a divorce lawyer, he or she will guide you as to the wisdom of accepting recommendations. At Conference, as with every opportunity to settle your case, you must consider the benefits of accepting the recommendations versus the cost of continuing with litigation. And always remember that the costs of litigation are not just financial. There are the costs to your time, your wellness and the wellness of your children, among other costs. All of these costs must be weighed. In the worst- case scenario, you could be devasted if you defied recommendations, went on to an argued stage, lost, and then had to pay the Court costs of your spouse on top of your own Court costs.
It is important to recognize that that the mission of the family law Conference Judge is to stop the bleeding, to allow you, your spouse and your children to move forward with your lives and put the battle, and related costs, behind you. With this in mind, you will be well situated to have a successful Conference experience.
Stay tuned for future articles with tips to achieve a successful family law outcome and manage your family law cost
Tessa Bair B.A., L.L.B., Senior Family Law Lawyer