This blog will help answer some questions clients may have when meeting with one of our family law lawyers after scheduling a Settlement Conference or receiving settlement conference materials from their former spouse. The questions answered in this blog include:
A Settlement Conference is the second Conference attended in family law matters. The Settlement Conference occurs after a Case Conference. In some cases, motions may have been heard in order to resolve issues on a temporary basis after the Case Conference but before the Settlement Conference.
A Settlement Conference provides parties with the opportunity to discuss the issues with input from a judge. The materials and discussions are without prejudice, which means that the materials and statements cannot be used against the parties in the event that a settlement is not reached at the Settlement Conference.
At this stage, the parties should have all of the necessary disclosure to determine the issues. As such, if you are in the process of scheduling a Settlement Conference, it is important that you contemplate whether you have all the necessary information to discuss a final settlement of the issues in dispute. If not, a party should request such disclosure from the other side or attend a questioning. If a party refuses to produce disclosure, the question becomes whether a Motion is necessary to compel production.
The date for a Settlement Conference is often scheduled at the conclusion of a Case Conference. If a Settlement Conference was not scheduled at such time, this may have been due to other contemplated steps, such as a Motion or questioning being scheduled. If the Settlement Conference date was not scheduled at the conclusion of the Case Conference, parties will need to reach out to the Court to obtain available dates, confirm the other party (and, if represented, the other lawyer) is available, and then secure the date with the Court.
The materials required for a Settlement Conference depend on the issues in the family law matter. Most often, parties are required to complete the following forms:
It is essential that you are aware of the Regional Practice Direction, as some courts require additional materials to be served in preparation for a Conference. Furthermore, it is beneficial to prepare a draft Order (Form 25) that sets out the procedural relief a party may seek at the Conference.
Finally, following the service and filing of Conference materials, counsel are required to discuss the issues in an attempt to narrow the focus of the Conference. Often, counsel will be able to agree on certain procedural orders (such as an Order for specific disclosure). Following such discussion and by no later than 2:00 p.m., three business days before the Conference, parties are required to serve and send to the Court a Confirmation of Conference (Form 17F).
The service and filing deadlines for Settlement Conference materials vary depending on whether you are the party that secured the date or the opposing party. If neither party “requested” the appearance (i.e. it was scheduled at the Case Conference), the Applicant will be treated as the party who secured the date. The deadlines for materials are as follows:
Please note that the deadlines above refer to when the service must be effected. For example, if serving materials by email, a party must serve the materials prior to 4:00 p.m. for service to count for that specific day.
It is also critical that a party is aware of Rule 20.2(2) of the Family Law Rules, which provides that if a party intends to call a litigation expert as a witness at trial, they shall serve and file a Report signed by the expert at least six business days before the Settlement Conference. To that end, an expert must be engaged/retained very early in the process, as Reports take a significant amount of time to finalize. Some examples of expert reports include: (a) a valuation of a party’s business interests at a specific date such as the date of separation; (b) a Report providing an opinion on a party’s income for support purposes; and (c) appraisals of real estate; (d) actuarial reports regarding federal or foreign pension or disposition cost rates to be utilized; and (e) parenting assessments.
A Confirmation of Conference (Form 17F) provides the Court with insight into the upcoming Conference. It details:
As noted above, the Confirmation of Conference must be served and then sent to the trial coordinator by no later than 2:00 p.m. three (3) business days prior to the Conference.
When preparing a Settlement Conference Brief, it is important to understand that this is not the place to set out “all of your evidence”. It is intended to be a “brief” overview of a party’s position, the issues in dispute, and, most importantly, to focus on settling the issues in dispute. Judges are critical of parties who copy and paste the relief sought in their pleadings (i.e. Application or Answer), as they are looking for the parties to take reasonable positions and be settlement-driven at this type of court appearance.
The Settlement Conference Brief (Form 17C) seeks specific information. Most often, the focus of the Brief will be to answer the question “What are the issues for this Settlement Conference? What are the important facts for this Settlement Conference?”
The most significant difference between the Case Conference Brief and Settlement Conference Brief is that the Settlement Conference Brief requires a party’s Offer to Settle the issues that remain in dispute.
Again, it is essential that parties do not view this court appearance simply as a “checkpoint”. This is often considered the last opportunity within the court process to be settlement-focused. After the conclusion of a Settlement Conference, costs to each party may substantially increase as the parties and their counsel begin preparing for the Trial Scheduling Conference and the trial itself.
Settlement discussions often continue after the conclusion of the Settlement Conference, and if they have not already done so, parties should explore the possibility of attending mediation. However, the steps being taken in the court process from this point forward are primarily geared to preparing for a trial of the issues that remain in dispute.
A Court can only make Orders on substantive issues (i.e. parenting, support, property, etc.) if the parties consent. Rule 17(8) of the Family Law Rules sets out what Orders a Judge has the authority to make at a Conference. Rule 17(8) provides:
17(8) At a case conference, settlement conference or trial management conference, the judge may, if it is appropriate to do so:
If a Settlement Conference has been scheduled in your family law matter, contact Morrison Williams to schedule a consultation with one of our lawyers to: