Preparing for a Family Case Conference: a checklist

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Court
22/09/2020

In a family case conference, a judge meets with the parties to a family court dispute (and lawyers, if parties have them) to help them talk about resolving the dispute. Although these meetings usually take place in a courthouse conference room, this spring the Provincial Court of BC began conducting case conferences by telephone or audio- or video-conference to help reduce the spread of COVID-19.

We’re finding that these “virtual” conferences can be effective in helping people reach agreements. They also help the Court reserve the right amount of time for a hearing if one is needed. But to get the most out of a case conference you need to be prepared. This eNews offers suggestions on how you can prepare.

The legal terms used in this article are explained here.

One option to consider even before a family case conference is scheduled in court is “alternate dispute resolution” or mediation outside court. While the time a judge can spend with you is limited to about one hour, a family justice counsellor or private mediator can spend more time on each dispute and delve more deeply into the issues between you and the other party. If you reach an agreement, they can help put it in a written agreement or court order.

Studies show that people are generally more satisfied with outcomes they agree on than with outcomes imposed by a judge after a trial. Before going to court, it makes sense to try one of the mediation services available. Options include free or low-cost services.

First, prepare to reach an agreement

Although family issues are emotional, you should try to think clearly and objectively about your dispute. List the issues raised by the Application and Reply. Do you agree with the other party about any of them? Note the issues you agree on.

For the issues you disagree on, think about what would be best for your children. On issues affecting children, the law makes the children’s best interests the only consideration. (see BC’s Family Law Act, s. 37) So if you’re asking a judge to order something that will benefit you but not your children, you won’t be successful.

Decide what your goals are before attending the conference. Also consider the other party’s perspective and what they might want from the conference. Are there solutions that might satisfy both parties and be best for the children? Think about proposals you want to put forward at the conference and how best to explain them to the other party.

Then, plan for a hearing in case one is needed

If you don’t reach an agreement at your conference, the judge may direct that your matter be set for a “hearing” (also called a trial). At a hearing, both parties have a chance to present evidence and the judge makes a decision based on the evidence presented at the hearing and the law. To reserve the right amount of time for your hearing, the judge will need information about how you intend to conduct your case.

So, before your conference, decide what witnesses you will present if a hearing is needed and what each will testify about. List them and do your best to estimate how long their testimony might take. For help in planning your hearing and deciding what evidence you’ll need, see the Guide to preparing for a family court trial in Provincial Court.

In some cases, a hearing (or parts of it) can be held remotely, with some or all of the people involved participating by telephone or audio- or video-conference. The BC Provincial Court uses the Microsoft Teams virtual platform for audio and video proceedings. Think about whether any part of your hearing would be suitable for this type of “virtual courtroom”.

To learn more about virtual conferences and hearings, read:

Then, decide whether it’s best for you, your lawyer (if you have one) and your witnesses to attend the hearing in-person or remotely by audio, video or telephone. When deciding this, think about whether each person:

• has an email address
• has access to a computer, tablet, or cell phone that has a camera
• has access to reliable internet
• has a data plan sufficient for the time the hearing (or their testimony) will take
• has a quiet, private space where they can participate without interruption

Beside each witness’ name, note whether you think it’s best for them to give their evidence by:

• testifying in-person in a courtroom
• testifying by telephone
• testifying by audio-conference (connecting to Microsoft Teams with sound but not video)
• testifying by video-conference using Microsoft Teams
• providing evidence in a written affidavit (a document sworn or affirmed to be true)

If witnesses will be testifying by telephone, audio- or video-conference, you will be asked for their name, phone number and email address at the conference, so note those details.

At the conference, the judge will decide whether your hearing is suitable for telephone, audio- or video-conferencing. They will consider your wishes, but will also consider the nature of the case; the technological and other facilities available to the parties, lawyers, and witnesses; their ability to participate effectively in the hearing; fairness; and how best to uphold the interests of justice.

Finally, consider whether you and the other party might agree on a statement of facts that are not in dispute. If you can give the judge “an agreed statement of facts” at your hearing, you won’t need evidence to prove those facts and the hearing can be shortened. Make a list of the facts that you don’t dispute and would like the other party to agree on.

The better you’re prepared, the better your conference will work

Doing this preparation before a case conference can help you reach agreements. If a hearing is needed and you have the information listed here, you will speed up the process of getting a date set for the hearing. The judge will be able to help you organize the hearing at the conference and have a date set for it without delay.

Conference preparation checklist for parties and lawyers

1. Have I tried mediation?

2. What issues do I agree with the other party about?

3. What’s in the children’s best interests?

4. What’s my goal in attending the conference?

5. What’s the other party’s goal in attending the conference?

6. Are there solutions that meet both parties’ goals and the children’s best interests?

7. If there is no agreement and this matter needs a hearing, what evidence will I need to persuade the judge to rule in my favour? How will I present that evidence? (list witnesses, documents, etc.)

8. What will each of my witnesses testify about?

9. What is the time estimate for each witness’ testimony?

10. Do I wish to attend court in person, by video or by telephone? (Do I have the necessary technology, ability, and space?)

11. What witnesses could give their evidence by affidavit, if this is permitted by the hearing judge? If the other party wants to question (“cross examine”) them about their affidavit, could that be done by video or telephone?

12. Is each witness able to attend court in person, by video or by telephone? (Do they have the necessary technology, ability, and space to testify by video or telephone? If so, what is their name, phone number and email address?

13. Do any of my witnesses need special considerations or accommodations (e.g. language interpreter, support people, physical accommodations, notice of expert witnesses to be provided in advance, judge’s permission to present a witness under the age of 18)?

14. If my evidence includes documents (including photos, copies of emails or text messages, calendars, or other papers used to support my case), what’s the best way to present them? If my hearing will be in-person, can they be organized in one tabbed and page-numbered binder? (Ask the judge at the conference for directions on how to provide documents to the other party and the Court before the hearing.)

Download printable pdf checklist.

Legal terms used in this eNews

Application - the form used to request a court order

Affirm – make a solemn promise to tell the truth without reference to religious belief. An affirmation has the same legal significance as a sworn oath.

Cross examine - to question the other party and their witnesses after they testify in direct examination

Direct examination – the testimony a witness gives in answer to questions posed by the party presenting them (or by their lawyer if the party has a lawyer)

Evidence - witnesses’ testimony and paper documents, photographs, etc. that are admitted as evidence by the judge and marked as exhibits

Hearing - also called a trial - a proceeding where the parties present evidence to a judge, who makes a decision based on the facts proven by the evidence and the law that applies

Oath - a solemn promise to tell the truth sworn on a holy book

Parties - the people suing or being sued

Reply - the form used to respond to an application or motion

Testify - to tell the judge the facts after swearing or affirming to tell the truth

Testimony - oral (spoken) evidence given under oath or affirmation

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This website provides general information only and should not be used as a substitute for legal advice. Updated October 2020