Court Tells Parties Not to Waste Their Settlement Conference
Written on behalf of Shariff & Associates
A settlement conference is a chance for the parties to determine if issues in a case can be settled without a trial. In Ontario, the Family Law Rules set out some specific rules governing these proceedings. Courts have emphasized that settlement conferences are not the forum to dispute issues of financial disclosure and that parties who are not prepared cannot make informed decisions about their case. Parties who disregard the Rules and show up to settlement conferences unprepared are not viewed positively by judges, which can affect how a case proceeds.
Settlement Conference Not the Forum to Deal With Non-Disclosure
In Ni v. Yan, the judge was clear that a settlement conference was not the time to deal with issues of financial disclosure. The judge first noted that neither party fully complied with the Family Law Rules that governed settlement conference proceedings even though they are mandatory. For example:
- Rule 13(12) requires each party to update any financial statement that is more than 30 days old by filing a new financial statement or an affidavit confirming that there has been no material change from the last statement. However, this was not done by the husband.
- Rule 13(14) requires the parties to file a net family property statement not less than 30 days before a settlement conference. The husband included an undated statement, but there was no indication that it complied with the Rule. Furthermore, the wife did not provide a statement at all.
- Rules 13(14.2) and 13(14.3) require the parties to file a comparative joint net family property statement, or if there is no agreement, to file separate comparative statements at least seven days before a settlement conference. This was also not done.
The parties were also required to provide an estimate of their trial time, but neither had done so. Additionally, both parties claimed that disclosure was not complete and that further orders would be required to address their disclosure complaints. The judge pointed out that family law litigants are only entitled to one settlement conference unless the case management judge decides otherwise. The parties are expected to come to the conference having complied with the Rules.
The judge explained that a “settlement conference should not be the forum to dispute and adjudicate upon disclosure issues where there are numerous items in dispute, the relevance and proportionality of which can only be determined by a motion”. Otherwise, proceeding with the settlement conference only wastes the court’s time and the parties’ resources. For Justice Jarvis, parties either come to the conference with as much relevant information as they can obtain to assist them or end up coming unprepared. In this instance, it was evident that the parties were unprepared, and their non-compliance with the Rules demonstrated that. The judge also made it clear that parties who raise serious disclosure shortcomings are in no position to make informed settlement decisions, and their counsel would not be able to give competent advice to their client in such a scenario.
Judge Warns Parties Against Wasting Judicial Resources
Justice Jarvis referenced the 2014 case Greco-Wang v. Wang. In that case, the judge also looked to the Rules and explained that they require the court, their lawyers, and the parties to promote the primary objective, which is to enable the court to deal with cases justly. This included “ensuring the procedure is fair to all parties, saving expense and time; dealing with the case in ways that are appropriate to its importance and complexity; and giving appropriate court resources to the case while taking account of the need to give resources to other cases”. Significantly, the judge explained that members of the public who use the civil courts “are not entitled to unlimited access to trial judges”. A trial’s duration needs to be “proportionate to the issues at stake and the judicial resources available”.
In Ni v. Yan, Justice Jarvis acknowledged that the comments in Greco-Wang were related to a Trial Scheduling Conference but found that the substance was just as relevant to a settlement conference. He warned that serial settlement conference events are too often permitted in cases where there are continuing complaints about inadequate disclosure, which impacts the parties’ ability to make informed settlement decisions. He decided that practice needed to end. Consequently, the parties’ settlement conference was adjourned. However, he additionally held that no further conference should be scheduled without leave from the case management judge and that any complaint about inadequate disclosure had to be resolved before leave would be granted. Justice Jarvis reminded the parties that settlement conferences serve many purposes, but “serialized mediation is not one of them”. Litigants must comply with the Rules and their disclosure obligations, or else “their day in court will not happen any time in the near future”.
Judge Has Discretion Setting Terms of Adjournment of Settlement Conference
Creighton v. Creighton demonstrates the importance of being prepared for a settlement conference and how a strategy to delay proceedings can have consequences. In this case, the parties attended a settlement conference, but the husband sought an adjournment, which would have been the second adjournment he obtained. In response, the wife requested a spousal support order be made as a term of an adjournment. The judge agreed and ordered interim without prejudice spousal support to be paid by the husband as a term of an adjournment of the settlement conference.
The husband appealed and argued that the judge had no authority to make a substantive spousal support order at a settlement conference. He pointed out that there was no motion for spousal support or sworn evidence of his income. However, on appeal, the Divisional Court found that the settlement conference had never started. Instead, the time was spent dealing with the adjournment, and the judge eventually made the order as a term of an adjournment, not a settlement conference order. The court accepted that a judge has broad discretion over the terms of an adjournment, “particularly where, as here, one party is delinquent in his financial disclosure, and that party is unfairly delaying the progress of the proceeding”.
The court also pointed out that the original order was made without prejudice, and Justice Nicholson relied on a 2017 T4 produced by the husband and that its correctness was not disputed. Moreover, the husband’s counsel could have argued that the husband’s income was unusually high in 2017, but that argument was not made. As the court noted, the husband would have been able to show that if the required financial disclosure had been made, but instead, it appeared the husband had not complied with his disclosure obligations, and the adjournment request was a delay tactic. Ultimately, the judge had discretion in setting the terms of the adjournment. However, the Divisional Court cautioned that the specific terms of the adjournment that were in dispute should only be used sparingly.
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