BE PREPARED

And then there are those rules that we make up on our own to best serve the public and to ensure that we are serving our best & highest purpose

SUCH AS......... THE PREPARATION AND SERVICE OF BRIEFS

• It is unfortunate that we are not permitted to file briefs such that the bench will be in a better position to assist the parties in moving their matters to resolution. This does not mean they ought not be prepared and exchanged and this ought to be done at least 1 week prior to the JCC.
• Prior to a JCC : a) the disclosure ought to be exchanged; b) you ought to have turned your mind to the expert reports required if any and to which experts you are agreeable to - you ought to have CV's and quotes; c) if expert reports are not required then you ought to have begun drafting your Family Property Accounting - blanks are OK - that's what drafts are for - a roadmap
• Your brief should be a "living document" - if you have done a good job with the drafting of this brief, it can be amended to become your mediation brief and or your settlement conference brief and can be and should be the foundation for your Offer to Settle
• THIS IS NOT AN ADDITIONAL OR NEEDLESS COST TO YOUR CLIENT - THIS DOES NOT ADD TO THE COST OF LITIGATION - IF YOU HAVE DONE ALL OF THE TRIAGE WORK AT THE OUTSET OF YOUR MATTER AND RECOGNIZE THAT A JCC DATE GENERALLY SHOULD BE A LATER STEP IN THE DISPUTE RESOLUTION CONTINUUM (see (D) below) - RE EARLY RESOLUTION SERVICES SECTOR AKA "FRONT END" then you affirm that the Brief is an important summary of all of the work you have done to date - an important summary which will provide the court with the information needed to make the best use of a Judge's time and skills to help you resolve the issues in the litigation. A JCC IS A VALUABLE OPPORTUNITY TO END OR STREAMLINE THE LITIGATION - NOT A SPEED BUMP
• ERSS: = A) information/education, building legal capabilities; triage; referrals; B) supported information, summary advice, triage and referrals; C) supported dispute resolution & advocacy for clients D) legal representation E) trial
• FINALLY , have a one page executive summary of your brief and a copy of your brief available to hand up at the JCC - IF YOU HAVE NOT SERVED A COPY ON THE OTHER PARTY/LAWYER WITHIN A REASONABLE PERIOD OF TIME, be ready for an objection to you handing this up to the Court and it is highly unlikely that you will obtain permission to hand your materials up the Court.

GOAL!

Current Gaps

TRIAGE AND CASE MANAGEMENT MATERIALS

What do you HAVE to do before a JCC - your obligations pursuant to the Rules

A. CERTIFICATION THAT YOU HAVE DONE YOUR JOB AT THE FRONTY END - AT PRESENT THERE IS NO TRIAGE COURT/SYSTEM IN BC - BUT THIS IS A VALUABLE TOOL/CHECKLIST FOR COUNSEL IN THE MEANTIME - CHANGE IS A COMING....WE NEED TO GET MORE MORE FOCUSED, MORE ORIENTED TO OUTCOMES AND OUR CLIENT'S GOALS IN A MORE EFFICIENT & COST EFFECTIVE WAY (SEE HANDOUT)

B. TRIAGE & CASE MANAGEMENT BRIEF (SEE HANDOUT)

• #1 KNOW THE RULES - what your obligations are; what orders the Court can make
• File and serve your Notice of Judicial Case Conference- whenever possible collaborate with the other party/lawyer re dates - and make sure you serve this at least 30 days before the date of the JCC
• You must also file and serve 30 days in advance of the JCC a sworn F8 ALONG WITH the applicable income documents referred to in sec B of part 1 - FINANCIAL DISCLOSURE IS THE CANCER OF FAMILY LAW - there is no reason why your F8 ought not also include statements of valuation at current value for all assets and liabilities in addition to copies of last 3 years personal & if applicable corporate tax returns with schedules attached, and last 3 years notices of asssessment/re-assessment; 3 consecutive pay statements; employment contract; ROE; etc. WHEN IT COMES TO DISCLOSURE - LESS IS NOT MORE - MORE IS MORE and if your client has/can obtain statements as of date of cohabitation (re exclusions) and date of separation - THEY SHOULD
• DISCLOSURE SHOULD BE DONE AT THE FRONT END AND DISCLOSURE APPLICATIONS SHOULD BE FEW & FAR BETWEEN

• it's too soon
• it's impracticable /unfair - respectfully not sure when this one applies given all the other exceptions in particular the one that provides for discretion
• urgency
• requirement to attend may be dangerous health/safety of any person
• court exercise discretion to provide exception

Back to the magical powers of a JCC pursuant to JCC Rules......

1. Everyday Legal Problems

Civil justice problems are “pervasive in the lives of Canadians” and frequently have negative impacts on them.

• Many People Have Everyday Legal Problems. Nearly 12 million Canadians will

experience at least 1 legal problem in a given 3 year period. In the area of family

law alone, annual averages indicate that approximately 40% of marriages will end in divorce. These are the problems of everyday people in everyday life.

• The Poor and the Vulnerable are Particularly Prone to Legal Problems. Individuals with lower incomes and members of vulnerable groups experience more legal problems than higher income earners and members of more secure groups.0 For example, people who self-identify as disabled are more than 4 times more likely to experience social assistance problems and 3 times more likely to experience housing related problems, and people who self-identify as aboriginal are nearly 4 times more likely to experience social assistance problems.

We have a duty pursuant to the FLA to.........

B.C.S.C. JCC-What can happen & what are the rules...

B.C. S.C. JCC Rules -The Quick & Dirty

So....... What has this got to do with preparing for a JCC and why do we care?!?

Because... a Judicial Case Conference is NOT A

It is an opportunity and it is our responsibility to ensure we do not waste it

• without hearing witnesses, give non -binding opinion on the probable outcome of a a hearing or a trial (that opinion will likely be MUCH better if you are PREPARED and have a BRIEF which details your parenting plan, your family property accounting; your support calculations etc AND...the law you intend to rely upon summarized in executive summary
• without limiting any other orders respecting timing that may be made - make orders respecting timing of events;
• adjourn the judicial case conference;
• direct parties to attend a further JCC;
• make any procedural order or give any direction that the court considers will further the object of the Rules - AKA - DISCRETIONARY ORDERS - this is not unfettered and in my experience the more prepared you are (which includes knowing these rules and what you can ask for - the more likely the Order will be made.

Duties of family dispute resolution professionals (section 8 Family Law Act)

A family dispute resolution professional, consulted by a party to a family law dispute must:

(a) discuss with the party the advisability of using various types of family dispute resolution to resolve the matter, and

(b) inform the party of the facilities and other resources, known to the family dispute resolution professional, that may be available to assist in resolving the dispute.

-You can REQUEST a JCC any time whether you have already had 1 or more (but that doesn't mean you are going to get one- and if you do - it's a privilege not a right and you should treat it as such - BE A GOOD SCOUT - BE PREPARED

-You are expected to schedule a JCC prior to SERVING an application or affidavit on another party EXCEPT if your application is asking for the following relief/application:

a) restraining disposition of any property at issue;

b) application under section 32/39 of the FHRMIRA CD or a First Nation's law made under that act with respect to an equivalent matter;

c) consent order;

d) without notice;

e) to change/suspend/terminate a final order;

f) application to set aside/replace whole or part of an agreement;

g) application to set aside PC determination.

Goals - your client's not yours - remember-these proceedings have a ripple effect on many areas in your client's life- these proceedings are about more than the law

Expectations - to manage expectations- you have to set expectations - tell them what they need to know - not what they want to hear - your preparation begins with your initial consulation - identifying goals; setting expectations; identifying disclosure required & giving homework & in doing so you are educating, guiding & empowering your client and front loading the case mgmt working towards resolution; identifying need for expert reports etc - see triage below

Identifying need for support and resources - both personal & in the community - by the time you are at the JCC the rational brain must be engaged and if the proper supports are in place, this will help to ensure that this occurs and is not highjacked by the emotional brain

It's not Hogwarts, but nearly magical things can happen in court .....

The public is told (see https://familylaw.lss.bc.ca/resources/fact_sheets/Judicial_Case_Conerences_Supreme_Court.php) that at a JCC a Judge or Master can within the scheduled time (30 min-2 hours - typically 1 hr):

• clearly identify which issues need to be decided which is a lot easier to do if the Judge has a brief setting out the issues
• explore if some or all of your issues can be settled with his or her help
• mediate between you on any issues you can't agree on
• make consent orders
• make referals to private DR Professionals - mediator, PC....
• send parties to family justice counsellor
• make orders about the process - timing of exchange of disclosure, discoveries, filing of materials, etc. and ....
• give non binding opinion

Problems Multiply. One kind of legal problem (for example, domestic violence) often leads to, or is aggravated by, others (such as relationship breakdown, child education issues, etc.). Legal problems also have momentum: the more legal problems an individual experiences, the greater the likelihood that she or he will experience others. Legal problems also tend to lead to other problems of other types. For example, almost 40% of people with one or more legal problems reported having other social or health related problems that they directly attributed to a justiciable problem.

• Legal Problems Have Social and Economic Costs. Unresolved legal problems adversely affect people’s lives, their finances and the public purse. They of course tend to make people’s lives difficult.15 Unresolved problems relating (for example) to debt, housing, and social services lead to social exclusion, which may in turn lead to a dependency on government assistance.

We have a responsibility to engage in early resolution

Powers continued.......

As the Action Committee’s Prevention, Triage and Referral Working Group indicated, “Avoiding problems or the escalation of problems, and/or early resolution of problems

is generally cheaper and less disruptive than resolution using the courts. To borrow

Richard Susskind’s observation, ‘it is much less expensive to build a fence at the top

of a cliff than to have need of an expensive ambulance at the bottom.’”5

• orders to amend pleadings
• orders requiring particulars - note that this is different than disclosure and "typical documents" - make sure your financial statement has been served and your LOD before you ask for particulars
• orders re discovery of documents
• orders re exams for discovery
• direct applications to be made within specified period of time
• reserve trial date
• set TMC date
• make any orders that can be made at TMC: WHAT? REALLY? AND WHAT ARE THOSE........

Self Represented Litigants & Us

In 2012, Justice Canada estimated that between 40% and 57% of parties were self-represented when they appeared in court for family law issues.

At the time the case is opened (i.e., at filing) even more are unrepresented; court-reported estimates range from 64% to 74%.

Surveys of judges, lawyers and other FJS professionals indicate that they believe the number of SRLs has increased over the last five years, estimating that between 50% and 80% of parties to civil/family actions are self-represented

Orders that can be made at a TMC - I mean JCC - ummmm BOTH

And if you want these - your brief should walk and talk like

a TMC Brief unless you are asking for a JSC in which case

it should look like an executive summary of a mediation brief

It is our responsibility to be more cost effective

BE PREPARED

In the area of access to civil justice Canada ranked 13th out of 29 high-income countries in 2012-2013 and 16th

out of 23 high-income countries in 2011. According to the 2011 study, Canada’s ranking was “partially explained by shortcomings in the affordability of legal advice and representation, and the lengthy duration of civil cases

(a) directing the parties to attend a settlement conference

• AKA mediation with a Judge-
• THIS IS IS THE GOLDEN SNITCH - these are RARE and precious - have a brief that shows that you are ready - you have a parenting plan; a family property accounting; disclosure has been exchanged etc - that you respect & appreciate the Court's time and you just may get one -
• (b) amendment of a pleading within a fixed time;
• (c) a plan for how the trial should be conducted;
• (d) admissions of fact at trial;
• (e) admission of documents at trial, including
• (i) agreements as to the purposes for which documents may be admitted, and
• (ii) the preparation of common books of documents and document agreements;
• (f) imposing time limits for the direct examination or cross-examinations
• (g) directing that a party provide a summary of the evidence that the party expects one or more of the party's witnesses will give at trial;
• (h) directing that evidence of witnesses be presented at trial by way of affidavit;
• (i) respecting experts, including, without limitation, orders that the parties' experts must, before the service of their respective reports, confer to determine and report on those matters on which they agree and those matters on which they do not agree;
• (j) directing that the parties present opening statements and final submissions in writing;
• (k) adjournment of the trial;
• (l) directing that the number of days reserved for the trial be changed;
• (m) adjourning the trial management conference;
• (n) directing the parties to attend a further trial management conference at a specified date and time;
• (o) any other matter that may assist in making the trial more efficient;
• (p) any other matter that may aid in the resolution of the family law case;
• (q) any orders the judge or master considers will further the object of these Supreme Court Family Rules.

It is our responsibility to be more effective procedurally......

To address these problems, we need a stronger and more effective civil and family justice system that is viewed and experienced as such by the public. This is critically important for the daily lives of people and for the social, political and economic

well-being of society.

Problems Multiply. One kind of legal problem (for example, domestic violence) often leads to, or is aggravated by, others (such as relationship breakdown, child education issues, etc.). Legal problems also have momentum: the more legal problems an individual experiences, the greater the likelihood that she or he will experience others. Legal problems also tend to lead to other problems of other types. For example, almost 40% of people with one or more legal problems reported having other social or health related problems that they directly attributed to a justiciable problem.

• Legal Problems Have Social and Economic Costs. Unresolved legal problems adversely affect people’s lives, their finances and the public purse. They of course tend to make people’s lives difficult. Unresolved problems relating (for example) to debt, housing, and social services lead to social exclusion, which may in turn ead to a dependency on government assistance. One recent U.K. study reported that unresolved legal problems cost individuals and the public £13 billion over a 3.5 year period.

Thank you

The formal system is, of course, important. But a more expansive, usercentered

vision of an accessible civil and family justice system is required. We need a

system that provides the necessary institutions, knowledge, resources and services to

avoid, manage and resolve civil and family legal problems and disputes. That system

must be able to do so in ways that are as timely, efficient, effective, proportional and

just as possible:

• by preventing disputes and by early management of legal issues;

• through negotiation and informal dispute resolution services; and

• where necessary, through formal dispute resolution by tribunals and courts.

Important elements of this vision include:

• public awareness of rights, entitlements, obligations and responsibilities;

• public awareness of ways to avoid or prevent legal problems;

• ability to participate effectively in negotiations to achieve a just outcome;

• ability to effectively utilize non-court and court dispute resolution procedures;

and

• institutions and mechanisms designed to implement accessible civil and family justice reforms.

Judicial Case Conferences = the definition of opportunity: a set of circumstances that makes it possible TO DO SOMETHING....

are nearly 4 times more likely to experience social assistance problems.

Cromwell Report

ACCESS TO CIVIL &

FAMILY JUSTICE

A Roadmap for Change

Action Committee on

Access to Justice in

Civil and Family Matters

October 2013