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| Can a judge make a final order at a Case Conference ? |
Rule 17 of the Family Law Rules expressly empowers a judge to make an order at a Case Conference. In addition to this provision, Rule 2 directs judges to actively manage cases and to dispose of cases that do not require a trial. However, Case Conferences were created as an alternative to contested hearings and to afford the spouses an opportunity to consider self-made settlements guided by judges, as opposed to judge-imposed conclusions.
In A.B. v. N.L.A., CanLii (2013) ONSC 2990, Justice Czutrin stated that “conferences are intended to assist in getting parties to a settlement or to trial readiness and to attempt to avoid motions. Conferences are not intended to be used as venues in which to determine opposed substantive matters on a final basis. They are not meant, and could not have been intended, to prevent a person from having an opportunity to be fairly heard according to the Rules. At conferences, it may often be appropriate to make procedural orders or temporary orders to preserve positions, provide for temporary support (based on sworn financial statements and undisputed facts), ensure necessary disclosure and move the case along. However, seldom (if ever) should a final order be made at a conference when it is opposed and not on consent.”
In that case, the court was faced with an appeal by a father from an order made by a judge at a Case Conference. In overturning the case under appeal, the court stated “the Family Law Rules enacted in 1999 sought to change the direction of what was seen as a very adversarial family process. The most significant change was the requirement of a Case Conference before evidence could be exchanged by way of affidavits. The goal was to have a judge meet with the parties, prior to the exchange of accusatory affidavits, so that a judge might assist the parties in resolving as many issues as possible prior to any motions being brought, or to avoid motions entirely. This was the birth of the required Case Conference prior to any motions or exchange of affidavit evidence.”
Justice Czutrin quoted Justice Kiteley’s decision in Robinson v. Morrison [2000] O.J. No. 2973 that addresses the appropriateness of a final order made by a Case Conference judge. The concern in Robinson was the lack of procedural fairness afforded to the party who was unaware that a Case Conference could result in an order. By overturning another lower court ruling, Justice Kiteley stated:
“The Family Rules institutionalize conferences as vehicles for problem resolution. They do not undermine or defeat the rules of natural justice. Before any substantive order is made, a litigant is entitled to notice of the case she must meet, entitled to an opportunity to respond to that case and entitled to an opportunity to be heard. This case was not fairly and fully heard when all of the elements of procedural fairness were not present. The appellant received no notice that an important order such as this would be sought. She knew from the application what case she would have to meet at trial, but she had no notice of what case she would have to meet as to the interim access. Her counsel had an opportunity to make submissions which consisted largely of pointing out the factual differences in the material and resisting the making of an order without notice. Those submissions do not constitute the right to be heard.”
Family Court judges continue to struggle with the right balance between actively managing cases by making orders that can move cases towards a final resolution, while at the same time ensuring procedural fairness.
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