11. Pre-Trial Court Appearances

Here are some common types of conferences:

Case Management Conferences

Some courts have mandatory or voluntary case management or pre-trial conferences. These conferences help try to resolve your dispute or deal with procedural issues, such as making sure that documents have been disclosed or that you are ready for trial. Before you attend one of these conferences, be sure to do your research so you are prepared for the meeting.

How to prepare for a conference:

• Be sure proper Court forms have been used to start the case, or application.
• Be ready to tell the judge what order you are seeking or opposing.
• Don’t speak out of turn – generally the procedure is for the applicant to present evidence or make submissions, the other side to respond, and the applicant to reply (only to new matters raised by the other side) – follow this process and don’t otherwise interrupt.
• Understand your case (your rights and responsibilities).
• Make sure you have given copies of all relevant documents and other evidence to the other parties before the conference.
• Consider any procedural matters that still need to be dealt with (such as disclosure you have not received yet or a request to be referred to mediation).

Pre-trial conferences

A pre-trial or case management conference is usually a short meeting between you, the other party and a judge.

The purpose of this meeting might be to:

• see if the matter is ready to proceed to a hearing / trial;
• review the proceedings that have taken place to date, such as pleadings, exchange of documents, discoveries, motions;
• discuss what steps need to be taken in order to move the case ahead to hearing/ trial and who will take those steps and when;
• discuss evidence including whether there can be an agreed statement of facts, exhibits, witnesses, and expert witnesses;
• expected duration of the hearing / trial, and time required for each party (including argument after the evidence is presented); and
• orders required before trial.

Settlement Conferences

The purpose of a settlement conference is generally to provide a way to resolve your dispute with the assistance of a judge or judicial officer. Settlement conferences are only available in some jurisdictions, and in others are mandatory (unless exempted) before a hearing / trial. Settlement conferences are meant to provide a more informal setting to discuss, narrow, and try to settle, issues. They are without prejudice, meaning that what is discussed cannot be used at the hearing / trial, unless agreed otherwise by both parties. Settlement conferences might include:

• discussing what you are really seeking;
• addressing outstanding issues such as the exchange of documents;
• finding common ground;
• settling some issues;
• the judge / judicial officer providing an opinion on what may happen if the parties go to hearing / trial (this judge or judicial officer will not be presiding at the hearing / trial); and
• other procedural issues

A judge might make an order during a conference, such as ordering one party to provide the other party with certain documents. Make sure to take a pen and paper in order to take notes of what was discussed or ordered.

Before a case goes to trial, issues may come up that require the court to decide. These issues are handled through applications, which are a request(s) to the court for an order to deal with one or more issues in advance of a hearing / trial.

Procedure

To request a court order for certain relief, you will need to apply through an application in the correct court form. These forms need to be filed with the court and served on the other party. Some courts require replies to applications, much like the initiating court forms that started the family claim. In that case, the other party has a limited amount of time to reply to the application, and serve their reply to the application.

To avoid wasting time unnecessarily, it is a good idea to discuss the date of the hearing with the other party to choose a date when you are both available and the court has an opening hearings date and time. Of course, if you cannot agree on a date, you can unilaterally choose a date for the hearing, but the judge may adjourn it so the other side can attend.

Some applications are about procedural issues that must be resolved so the substantive hearing / trial can proceed, like the exchange of documents.

You can get interim (temporary) orders if something needs to be decided before it can be dealt with at a hearing / trial. For example, if there is a dispute over property, but, in the period before the hearing / trial, the utility bills need to be paid or issues that need a temporary solution such as paying for childcare costs or parenting arrangements for children. If you cannot agree with the other party about something that needs to be done before the substantive hearing / trial, you can request an interim court order about how to deal with things until the matter is dealt with at the hearing / trial. Interim applications are for short term orders that will be in effect only until a final order is made at your substantive hearing / trial or by consent.

Here are some examples of matters that are dealt with in interim orders:

• A non-final order about the care of children;
• Temporary spousal or child support;
• Order about how special child expenses are to be divided;
• Orders about who is allowed to live in the family home;
• Orders regulating communication;
• Orders restraining a person from doing something (e.g. selling the car or visiting the home);
• Ordering one person to share financial documents.

Some applications can be made to the registry or the judge without having to appear in court (desk applications). Seek legal advice or assistance on which application is appropriate in your situation.

Hearings

For most applications you and the other party must attend a hearing before a trial, or to make substantive decisions instead of a trial (in some courts called Special Applications or Special Chambers Applications). A hearing is often before a judge or court officer who will decide whether or not to grant the order you are requesting. Both sides will be able to argue why the order should or should not be made. For some hearings you can only provide evidence through affidavits (sworn written statements); in some limited cases you may be able to call witnesses to give evidence in person. You will need to check with your legal help services or the court rules to know what type of evidence you are allowed.

Although an application may determine the course that a trial will take, it is not the trial and will not normally result in a final order. Normally, but not always – check the rules in your jurisdiction, all a judge at your hearing can do is make an interim decision on the issues raised in the application. They will usually not make other or final decisions about your case.

At the start of the hearing of the application, the person applying will need to explain what orders they are asking for and why the judge should make them. Be as clear as possible. You do not need to tell the judge all the details of your case. Focus on the issues relating to the application. Then the other party will be allowed to explain which orders they think the judge should make and which they should not. They will need to explain why they think the judge should not make the order you seek. The party applying for the order will then be given a chance to reply.

Hearings are a lot shorter than trials. The judge may only give you a few minutes to present your position to them (often as little as 20 minutes total for all parties). Be sure to stay on topic and keep your arguments short and to the point. Be sure to prepare a lot ahead of time.

Chambers Applications

The court in which preliminary applications are heard is often called “chambers”. Either a judge or a “master” may preside over chambers. Masters are like judges but are limited in the types of issues they can decide. They typically hear matters related to pre-trial and procedural matters.

Chambers is normally reserved for brief applications. If your application will take more time the court scheduler may set a special time and date for the longer hearing.

In Quebec, “chambers” is called “practice court” and is used for ex parte applications like seizures, or injunctions, or special modes of service.

Evidence by Affidavit

The evidence that the judge will consider in an application is sworn affidavit evidence that you must submit in advance of the hearing.

Adjournment

If you need to have the hearing adjourned (postponed) to a later date, you can ask the judge for an adjournment. Before granting an adjournment, the judge must be satisfied that there is a good reason to do so. They must consider all of the relevant circumstances to decide whether an adjournment is necessary or appropriate. If an adjournment is granted, costs may be assigned against you or conditions set on the adjournment.

In cases where both parties consent to an adjournment, they can make a very quick appearance or often just file a consent form and not have to make an appearance at all. This might happen if one party is not available or if the evidence required is not available yet.

Decision

Once the judge has all the evidence and everyone has explained their positions on the issues raised, the judge will decide the application. They may dismiss the application, make some or all of the orders requested, or make other orders. Usually the judge will give oral reasons of their decision right then. In some (few) cases, the judge will give written reasons. Make sure to take notes of the reasons given and the decision. One of the parties (usually the successful party) will need to prepare a written order of the judge’s decision, for the judge to sign.

Costs

A judge will also consider whether the unsuccessful party should be required to pay some money to the successful party to compensate them for having had to bring the application. In most cases, the amount of money (called “costs”) they will order is based on a chart of costs in the Rules of Court or may be discretionary. Things a judge might consider include whether it was necessary to make the application and whether it was reasonable to oppose.

If the judge decides that the application was not necessary or was not reasonable or successful, or opposing it was not reasonable, the judge may make an award of costs against the party who was not being reasonable. This means the unreasonable party will have to pay the other party’s costs of making the application. The amount of costs will be decided either immediately or at a later date.

If the person who is required to pay the costs does not pay, a judge may, on application:

• dismiss or put on hold that person’s case;
• require the person to pay security into court; or
• make some other appropriate order.