Unfair Rules

October 11, 2010 permalink

Research by a diligent reader has elucidated one of the many injustices embedded in the practice of family law. After your case conference, you are not permitted to have a copy of the transcript but the contents of the transcript can be used against you.

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PRACTICE DIRECTIONS

(11) In subrules (12), (12.1) and (12.2), “practice direction” means a direction, notice, memorandum or guide for the purpose of governing, subject to these rules, the conduct of cases in any area. O. Reg. 561/07, s. 1.

REQUIREMENTS FOR PRACTICE DIRECTION

(12) A practice direction shall be approved in advance by the Chief Justice or Chief Judge of the court, filed with the secretary of the Family Rules Committee and posted on the Ontario Courts website, and notice of the practice direction shall be published in the Ontario Reports. O. Reg. 561/07, s. 1.

Source: Courts of Justice Act Regulations

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The practice direction, not posted on the web in accordance with rule 12 but followed by the courts, forbids giving a transcript to a party:

TO:

Counsel/Parties

FROM:

Regional Senior Justice Durno

DATE:

December 2, 2004

RE:

Conferences in Family Law Cases

Case conferences, settlement conferences, and trial management conferences are held pursuant to Rule 17 of the Family Law Rules. Among the stated purposes of these three types of conferences are:

• exploring ways to resolve the issues that are in dispute,
• exploring the chances of settling the motion or case, and
• obtaining an opinion as to how a judge might decide the motion or case.

In order to attempt to achieve the above notes purposes, parties, counsel, and the presiding judge will need to engage in a full and frank discussion.  Offers to settle may be made, an tentative or partial agreements may be reached.  Such agreements should be reduced to writing, and may be incorporated into a court order.

The full and frank discussion is always conducted "without prejudice". When the parties do not reach an agreement to resolve an issue, a motion, or a case, anything that has been said during the discussion is not binding upon the parties, and may not be relied upon or referred to in evidence, should a motion and/or trial become necessary.

The court reporter, who is present at some conferences, my, only at the presiding judge's request, prepare a transcript of the conference.  Any such transcript is solely for the use of the presiding judge, and shall not be available to parties, counsel, or otherwise, unless the judge so orders.

Bruce Durno
Regional Senior Justice
Central West Region

SBD/rd

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In the case of Goodnough v. Goodnough, 2008 CanLII 25058 (ON S.C.) the court used the contents of a case conference against a party. The court ends item 3 with the statement:

The respondent’s submissions ignore the fact that on two separate occasions, at the case conference on January 26, 2007 and the aborted trail on May 30, 2007, his disclosure defaults were noted by the presiding judicial officers.