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No to unlimited settlement conferences | Gary Joseph

Wednesday, November 18, 2020 @ 8:41 AM | By Gary Joseph

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Gary Joseph
Access to justice and the continuing need to lower the cost of family law proceedings has found an ally, Superior Court of Ontario Justice David Jarvis. In what I consider a “home run” delivered in a compact three-page decision in Ni v. Yan 2020 ONSC 5941, Justice Jarvis has determined that the practice of repeated settlement conferences in “circumstances where there are continuing complaints about inadequate or refused disclosure impacting a party’s ability to make an informed settlement decision” must end. Citing Justice Frances Kiteley’s well known warning in Greco-Wang v. Wang 2014 ONSC 5366 (made in the context of a trial scheduling conference) that “[m]embers of the public who are users of civil courts are not entitled to unlimited access to trial judges,” Justice Jarvis found such comments to be “… equally, if not more, pertinent to settlement conference events.”

On this settlement conference the parties filed collectively briefs totalling 236 pages with 20 tabbed attachments. Each party had extensive lists of outstanding disclosure. Both parties were in non-compliance with various requirements under Rule 13 of the Family Law Rules relating to financial statements and updates. Justice Jarvis noted that a settlement conference “should not be forum to dispute and adjudicate upon disclosure issues …” To be prepared to settle, the parties must have the necessary information. “To hold a settlement conference otherwise is a complete waste of the court’s valuable time and the parties’ resources (my emphasis added).”

Justice Nicole Tellier in Chamberlain v. Chamberlain 2020 ONSC 5169, takes a similar view of the need to come to conferences fully prepared. In this case the husband had repeatedly failed to provide “all of the necessary disclosure” in advance of a settlement conference. He paid a steep price in costs: $5,700 plus HST.

For too long counsel and parties have used conferences as disclosure vehicles often engaging the court in repeated events on their way to either trial or settlement. In the process they burn up valuable resources on legal fees and wasted court time. In my view this contributes to the increase in self-represented individuals. Some start out with lawyers, run out of money during repeated conferences and for the event where they most need a lawyer, the trial, they are forced to be self-represented. I like the fact that Justice Jarvis reminds us all that litigants are entitled to one settlement conference not multiple conferences. Perhaps his comments will discourage the wasted use of conferences. An award of costs in the range ordered by Justice Tellier certainly brings home to counsel the risk one takes in proceeding when not fully prepared.

I conclude with an analogy that never is popular when I use it in court. Access to justice is like a pot of stew, you throw in a lot of ingredients, stir and hope it tastes good. Access to justice is not a monolithic concept. There are a lot of “ingredients” to the “stew.” If we carefully consider all aspects of the problem, we can avoid simplistic remedies to a complex problem. We can improve the system and address the pressing need of the public to access to justice.

Gary S. Joseph is the managing partner at MacDonald & Partners LLP, family law practitioners.

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