Case Management Conferences Overview
Case management conferences in family court are court-ordered appointments, where a judge will listen to and assess a family case with the intent of guiding it towards resolution.
Although the presiding judge will set a case management conference near its beginning, it often happens before the case is filed. In its simplest form, a case management conference (CMC) helps clarify the factual and legal issues at stake while obtaining an agreement from the parties about how they would like the case to progress. If the parties cannot come to an agreement , the CMC will bring the case one step closer to trial by providing direction from the court.
CMC’s are not unique to family law. They can be held in other areas of law, as well. For example, in an employment dispute, the conference could involve a dialogue about various aspects of employment law. But a family case has aspects that need to be discussed individually, such as child support, information gathering and other specific matters that are unique to family law.
Depending on how big the problems are in your case, the CMC’s can be a way to ease concerns and never go beyond the first hearing. Or for complex issues, the hearing can break down the issues and lead to more hearings than just the initial one.
The Purpose and Significance of Case Management Conferences
While the case management conference typically does not result in any substantive order being made concerning the issues between the parties, these appearances are nevertheless very important since they are made for the purpose of accomplishing certain objectives, including:
- Streamlining the case. Too often, especially in divorce matters, we find that a party has filed 3000 pages of documents with the court which include documents which are not relevant, contain irrelevant information, contain hearsay or other inadmissible evidence, are filed without any certificate of service on the other party, etc. The appearance provides a forum to vet out cases having issues with no opinion or advice coming from the judge toward one side or the other.
- Setting a discovery track and/or time table. All family law cases involve both sides exchanging documents and other information so that the case can be resolved. The case management conference is the appearance where the process or parameters of that exchange is established.
- Resolving issues early. Often times, the parties are months into the litigation when it is determined that a person needs to be appointed as an expert to testify about an issue in the case requiring specialized knowledge, skills or information. Doing this at or near the beginning of a case can save many thousands of dollars in fees and the amount of time it takes to get concluded.
- Encouraging settlement. Many people come to the appearance for the purpose of setting the case for trial. It is however a good idea to provide some incentive to settle, particularly if the only thing standing between you and settlement is a finite period of time expiring. For that reason, it is not uncommon to set a settlement conference for a date after which discovery will be complete, but also in the relatively near future.
What Transpires at Case Management Conferences?
Most cases in the Family Court take the form of an application and response form which is filed by the Applicant and Respondent at court, each providing specific details about their respective positions and proposals. If a matter has been brought to Family Court and this is the first appearance for either party, both attend the Case Management Conference (CMC) at the Family Court Centre. At the CMC a Registrar will normally speak to the parties to discuss which proceedings and processes should be followed in the case. For example, the discussion may be that parties are ready to proceed to a settlement conference (more formally known as a contested case conference with the assistance of a family court judge), or that mediation is appropriate, or that additional information is required by the parties before they can try to settle the matter, or that the matter is sufficiently complex (or importantly, if, the matter is one that is not sufficient) to proceed to a hearing before a judge. There may also be circumstances where all parties agree that a hearing is required. It may also be that the matter at hand is a more simple issue which can be dealt with without the necessity of seeing a judge.
The CMC is a 15 – 30 minutes appointment between the parties and the Family Court Registrar. These appointments are not much longer than this as there are many families in need of a CMC appointment so the process must be a continuous one.
A very important aspect in respect to a CMC is that the parties must have filed a current financial statement (that is, in instances where one spouse has made an application to the court to seek a financial settlement from the other spouse) or a detailed update on the status of the children (that is, in relation to a parenting proceeding). It is vital in respect to the CMC that the parties attend with an updated financial statement, as it is when the relevant circumstances will be outlined to the registrar and the status of matters will be discussed.
It is helpful if the parties have some idea of what process they would like to follow. For instance if they believe that the matters in dispute are sufficiently serious to be dealt with a in a negotiated manner before a judge which is normally referred to as a contested case conference, the registrar will co-operate with the parties to arrange a trial. The same applies if the parties think that the matters in dispute can best be resolved by way of mediation or family dispute resolution. The registrar will be in a position to provide the necessary information regarding the process to date in the proceeding, and most importantly, the registrar will decide when a hearing is unavoidable. For instance if mediation fails to result in resolution of the issues, the Registrar will direct that a judge is appointed to hear the matter. On the other hand, the registrar will dismiss those cases which it is perceived to be incapable of being settled.
It should also be noted that parties have the opportunity at the CMC to ask the registrar to order a temporary arrangement to take effect pending resolution of the matter, or to order one party to pay interim costs. For example, these arrangements may be contributions towards the mortgage or rent of the home in which the parties live, payments for sessions of counselling or therapy, interim payments for the children or the spouse, and/or payments for the litigation process. If there is no agreement on these matters, the interim orders are decided by the Registrar.
How to Prepare for a Case Management Conference
You should be prepared for a case management conference; you need to understand the issues that will be discussed, have the necessary documents and the related understanding to have an intelligent discussion with your attorney about your case.
Once you have been served with the summons and complaint for a divorce, the case has begun and has proceeded automatically into the case management part of the divorce. The parties will have 4 months to complete information gathering and initial discovery.
In the past, parties would have to file a motion for case management conference. Now, there is an auto-Scheduling Order, which makes the scheduling much more efficient. Essentially, when someone is served with the summons and complaint, the date of the scheduled case management conference is already set up.
The parties will then have to fill out a Case Management Information Statement within 20 days of the date of the auto-Scheduling Order or the authorization of the family action if it was sent to the court. Typically, the case will be scheduled for at least 3 months after the scheduling order is signed by the judge. The court will then decide whether they want the parties in for a full case management conference or just a limited one. A limited conference is essentially a 15 to 30-minute call with the court to answer the parties’ questions.
A full case management conference is generally done at a motion day and can be used to either meet with the parties to discuss the case, or to have a motion heard. Clients can also be taken out of the case management conference and sent to probate mediation or another form of alternative dispute resolution so the parties can resolve their issues before the court has to get involved in the litigation process.
Possible Outcomes and Next Steps After a Case Management Conference
Either way, if they do not resolve the case during a Case Management Conference, the parties should still be prepared to discuss: a) setting a specific discovery or Motion timetable; b) scheduling those dates with the Court before leaving; and c) discussing the other issues outlined above, including a potential settlement of the entire case or: "partial" settlement of specific issues that are agreed upon or can be agreed upon by providing for those terms in a Memorandum of Understanding that is executed by the parties’ attorneys after the CMC. If they have not done so already. Furthermore, depending upon the topics discussed and proposed during the CMC, the Judge may be able to schedule some type of case allocation conference where the parties list the issues that are in contention as well as those issues that are not in contention. For instance, issues of custody and parenting time can be scheduled within a reasonable period of time. It may seem like something of an "exercise in futility", since the parties may have been doing this for years already, but, it is important to have what is termed a "case management order" to see what issues are in "contemporary contention", which are those issues the parties cannot yet agree upon, and which ones have already been resolved, either in advance of, during or following the CMC . It is also because these issues may relate to finalizing the process and services necessary to conclude the case. A final topic often discussed during a CMC is the potential for alternative dispute resolution, whether through a mediator, early settlement panel or even arbitration (as long as both parties consent to it, which seldom occurs). However, to the extent that the parties have unresolved issues, they may be encouraged to use their best efforts to employ proper alternatives to litigation when issues remain in contention w/uncertainty as to their resolution. If a CMC is successfully concluded, the parties’ attorneys typically memorialize what was agreed to in a final, comprehensive CMC Memorandum of Understanding that is executed by both attorneys offices. Once signed, it will usually be deemed a binding contract between the parties since they had both attorneys review it, revise it, edit it to finalize its wording and form and then sign it before submitting it to the Court. A copy of this document is usually forwarded to the Judiciary to be made part of the court’s record. Thus, the parties ability to later argue that they were unsure of its meaning, or were experiencing a temporary bout of buyer’s remorse, will likely fail if it was reviewed, discussed and signed.
Tips for a Successful Case Management Conference
As with any meeting, the more you are prepared going into a case management conference, the more effective it will be. This goes for you and your counsel. Preparation includes exchanging relevant information in advance – not two minutes before the conference – but well in advance. Both parties should have read their divorce agreement (if there is one) or any previous orders involving custody and parenting time, as well as the current docket schedule, if one exists. The attorneys should be briefed on the client’s needs, as well as the other party’s position on all of the relevant issues. When necessary, sensitive or confidential information may be provided in a separate document, and its existence and subject matter can be discussed at the case management conference in an AGreed Order if a Court determination isn’t needed. The case management conference order should contain any reasonable deadlines for discovery, motions or settlement conferences, and should set a deadline for a status conference at the latest, six months from the date of the initial conference.
Common Issues and How to Address Them
Case Management Conference disputes can be a little or a lot difficult, in that the parties and/or lawyers are not in agreement as to how to progress the case. While case management conferences are supposed to be a vehicle for getting a matter past the initial procedural stage and clear on what issues need to be handled and what if anything further is needed to resolve the case or bring it to trial, they can be the source for disagreement regarding almost every issue, from lists of discovery that are required, to scheduling of depositions, to requests for interim relief.
When the lawyers are in conflict as to scheduling they may be viewed by the court as not being able to properly handle the case or to cooperate with each other to facilitate the case and may be subject to Orders of the court requiring them to attend around the clock courses on civility or professionalism, or order for more punitive sanctions. That does not mean that it is appropriate to simply capitulate to the unreasonable position of the other party or lawyer, but rather to adhere to a position of reasonable flexibility that will permit the case to go forward, while also protecting your client’s rights and your ability to do your job.
So what does that mean in real life? Both parties should come to the case management conference with as many agreements as possible among them, so that there is nothing to fight about. For example if you know that discovery is going to be needed then send the other side a list of what you are looking for, as opposed to seeking a Court Order for the production of everything footnoted in your interrogatories and request for production in document with no parameters or time frame or response. If there is time, exchange or at least review your Statement of Net Worth with the other side prior to the case management conference, and see if you can agree on the values for the items listed within. It may be far better to get these parties through the next steps than to hash out these details when the hearing date comes, especially since when a trial occurs, the value of things is going to be different anyway, since the case may be some time down the road, or because things are going to change.
It makes no sense to schedule depositions when you are not going to produce – unless you have been making diligent effort to do the production to the other parties. Instead work together to schedule those depositions that you know need to occur, and work toward the common goal of getting the pricing files and the ones that are really important to your case done before working on the others that are extremely expensive and less critical to your case, before trying to get something done for purposes of having the glorified school paper or "it’s my turn" to exercise your right. In other words, be reasonable and do not simply obstinize to obstinize.
While the parties are free to go on mutual fishing expeditions, if both parties spend the time and efforts and do the work beforehand to cull the items that are readily available from the list of what is currently missing or needed, then the parties and lawyers can have movement toward the future rather than spending the vast amount of money and time required to move the cases forward, before you know it, the case could very well be resolved at the time of trial or the final hearing on support or custody due to the lack of disagreement over the issues, the reasonable application of the rules and parameters required for the litigation, and the professional expectations that should be reasonable in any professional setting for what is required as part of the reformation of a family, court ordered counseling and otherwise.
Legal Representation at Family Court Case Management Conferences
It is not required that you have a lawyer at the case management conference. It is, however, usually a good idea to have a lawyer at the case management conference to advocate for you. Some of the cases I have had lately at the case management conference are ones where the other side has very good information or documents that will help your case even though you may not have that information or document yourself.
Some examples are:
When you have a lawyer at the case management conference, they can ask the attorney for the other party to turn over that information to you . Often when unrepresented parties file their application, they have "poked the bear" and the other party is more than willing to help them out because they know they have to.
Another benefit of having an attorney at the case management conference is that they can answer questions you have about what the other party put in their papers. When this happens, it makes it easier to figure out what next steps you want to take.
Sometimes, people can come to an agreement at the case management conference about what their issues are and how they want to address them. I have had several cases in the last month be resolved at the case management conference.