Clients often ask us to explain the purpose of a Settlement Conference, which is to have meaningful settlement discussions to see if a case, or issues of a case, can be settled without the need for a trial. In family law, litigants are entitled to one Settlement Conference unless otherwise permitted by the case management judge. The parties to a case are expected to prepare and attend at a Settlement Conference in full compliance with the Family Law Rules. Each party is expected to attend at the Settlement Conference and to be prepared to discuss settlement confident that they have as much relevant information available to them as is necessary to assist. A party who attends at a Settlement Conference without being prepared cannot make an informed decision about issues concerning their case, and a lawyer cannot competently provide their client with settlement advice.
In a recent case of the Ontario Superior Court of Justice, Ni. v. Yan 2020 ONSC 5941, Mr. Justice D.A. Jarvis made it clear that a Settlement Conference should never be a forum to dispute and adjudicate upon issues of financial disclosure. In this case, the parties who had counsel were disregarding the Family Law Rules and practise directions regarding the purpose and value of a Settlement Conference.
Both parties prepared through the assistance of their legal counsel lengthly Settlement Conference Briefs with voluminous attachments in preparation for their Settlement Conference concerning equalization and the parties’ net family property for assets in Canada and China, and support. These materials collectively contained over 236 pages and 20 tabbed attachments.
The Wife claimed that there were over 25 assets for which no disclosure had been provided. Each party made additional allegations in their materials that the other party had not provided financial disclosure with a list of over 35 outstanding disclosure requests. However, the parties failed to properly complete their paperwork and to include the specific items that the court requires such as an updated Financial Statement, a Net Family Property Statement, or to estimate the time it would take for a trial.
To make matters even worse, neither party had previously attempted to bring a motion before the court to deal with the disclosure issues, which is what an experienced lawyer knows to do prior to the scheduling a Settlement Conference. You cannot settle a case if you do not have financial disclosure, and it would be negligent to have any comprehensive settlement discussions or to conduct a Settlement Conference prior to disclosure.
It is clear that the lack of attempt by counsel to rectify the financial disclosure issues before the conduct of a Settlement Conference signaled to Justice Jarvis that neither party was taking the purpose of a Settlement Conference seriously. Justice Jarvis made it clear that the court’s time must be respected, and you must come to court prepared to deal with your case. There are rules of practise in place for a purpose, and they are not to be blatantly disregarded to use the court to attempt to achieve another purpose.
The court held that the Settlement Conference had to be adjourned, and that no further Settlement Conference could be scheduled without leave from Justice Jarvis as the case management judge. The Settlement Conference would not be proceeding because neither party was properly prepared or at the stage of the case that it made any sense to have any substantial settlement discussions.
Justice Jarvis referred to a passage from Justice Kitely in Greco-Wang v. Wang, 2014 ONSC 5366 and added:
“Members of the public who are users of civil courts are not entitled to unlimited access to trial judges”. While that observation was made in the context of a Trial Scheduling Conference, it is equally, if not more, pertinent to settlement conference events. Too often serial settlement conference events are permitted in circumstances where there are continuing complaints about inadequate or refused disclosure impacting a party’s ability to make an informed settlement decision. That practice must end.
The court noted that financial disclosure had to be complete prior to the conduct of a Settlement Conference by way of a motion. A failure to comply with any financial disclosure so ordered at a motion may invite the non-complaint party’s pleadings to be struck. The court made it clear that parties are entitled to one Settlement Conference unless otherwise ordered. Either the parties were to comply with their disclosure obligations “or their day in court would not happen any time in the near future” (at para. 12). The court stated that a Settlement Conference should not be used for “serialized mediation” (at para. 12).
Our Take Away
If you and your lawyer decide to disregard the Family Law Rules and practise directions, you do so at great risk of your case not being heard. Even worse, you may upset a judge so much that they may cancel the Settlement Conference and release a written reported Ruling, as occurred in this case. This case is a lesson to all family law litigants that the rules of the court must be followed, and a failure to do so will not be looked at kindly by the court.
Aubrey Sherman is the managing partner at Sherman Law LLP in Kitchener, Ontario. His practice focuses on family law, estate planning, and estate administration. To learn more about Aubrey please clickhttps://www.thedivorceangels.com/vendor/aubrey-j-sherman/.