Family Law Rules – Rule 17: Conferences

Angela Princewill

June 28, 2023

Conferences

Conferences in defended cases

17. (1) Subject to subrules (1.1) and (1.2), in each case in which an answer is filed, a judge shall conduct at least one conference. O. Reg. 383/11, s. 4 (1); O. Reg. 320/22, s. 6 (1).

Exception, case conference optional in child protection case

(1.1) In a child protection case, a case conference may be conducted if,

(a) a party requests it; or

(b) the court considers it appropriate. O. Reg. 91/03, s. 6 (1).

Exception, international child abduction

(1.2) Subrule (1) does not apply in international child abduction cases. O. Reg. 320/22, s. 6 (2).

Undefended cases

(2) If no answer is filed,

(a) the clerk shall, on request, schedule a case conference or set a date for an uncontested trial or, in an uncontested divorce case, prepare the documents for a judge; and

(b) a settlement conference or trial management conference shall be conducted only if the court orders it. O. Reg. 114/99, r. 17 (2); O. Reg. 544/99, s. 8 (1); O. Reg. 202/01, s. 5 (1).

Motions to change final order or agreement

(3) Subrule (1) applies, with necessary changes, to a motion to change a final order or agreement under rule 15, unless the motion is proceeding on the consent of the parties and any assignee or is unopposed. O. Reg. 151/08, s. 5 (1).

Requirement for parties to confer

(3.1) Before a conference, each party shall, subject to subrule (3.2), confer or make best efforts to confer orally or in writing with every other party respecting,

(a) the parties’ requests for financial disclosure;

(b) a temporary resolution of the issues that are in dispute; and

(c) in the case of a settlement conference or trial management conference, a final resolution of the issues that are in dispute. O. Reg. 320/22, s. 6 (3).

Exception

(3.2) Subrule (3.1) does not apply with respect to a party if,

(a) the party is prohibited from such communication by court order; or

(b) there is a risk of domestic violence by a party who is not represented by a lawyer. O. Reg. 320/22, s. 6 (3).

Effect of failure to confer

(3.3) If a party fails to comply with subrule (3.1), the court may, for greater certainty, make any order under subrule 1 (8.1) that is appropriate in the circumstances, including,

(a) an order postponing the conference until the requirements of subrule (3.1) are met; and

(b) an order for costs, regardless of whether the conference is postponed. O. Reg. 320/22, s. 6 (3).

Purposes of case conference

(4) The purposes of a case conference include,

(a) exploring the chances of settling the case;

(b) identifying the issues that are in dispute and those that are not in dispute;

(c) exploring ways to resolve the issues that are in dispute;

(d) ensuring disclosure of the relevant evidence, including the disclosure of financial information required to resolve any support or property issue;

(d.1) identifying any issues relating to any expert evidence or reports on which the parties intend to rely at trial;

(e) noting admissions that may simplify the case;

(f) setting the date for the next step in the case;

(g) setting a specific timetable for the steps to be taken in the case before it comes to trial;

(h) organizing a settlement conference, or holding one if appropriate;

(i) giving directions with respect to any intended motion, including the preparation of a specific timetable for the exchange of material for the motion and ordering the filing of summaries of argument, if appropriate; and

(j) in the case of a motion to change a final order or agreement under rule 15, determining the most appropriate process for reaching a quick and just conclusion of the motion. O. Reg. 114/99, r. 17 (4); O. Reg. 89/04, s. 8 (1); O. Reg. 6/10, s. 7 (1, 2); O. Reg. 522/21, s. 6 (1); O. Reg. 781/21, s. 7 (1).

Case conference notice

(4.1) A party who asks for a case conference shall serve and file a case conference notice (Form 17). O. Reg. 544/99, s. 8 (2); O. Reg. 202/01, s. 5 (2).

(4.2)-(4.4) Revoked: O. Reg. 320/22, s. 6 (4).

Purposes of settlement conference

(5) The purposes of a settlement conference include,

(a) exploring the chances of settling the case;

(b) settling or narrowing the issues in dispute;

(c) ensuring disclosure of the relevant evidence;

(c.1) settling or narrowing any issues relating to any expert evidence or reports on which the parties intend to rely at trial;

(d) noting admissions that may simplify the case;

(e) if possible, obtaining a view of how the court might decide the case;

(f) considering any other matter that may help in a quick and just conclusion of the case;

(g) if the case is not settled, identifying the witnesses and other evidence to be presented at trial, estimating the time needed for trial and scheduling the case for trial;

(h) organizing a trial management conference, or holding one if appropriate; and

(i) in the case of a motion to change a final order or agreement under rule 15, determining the most appropriate process for reaching a quick and just conclusion of the motion. O. Reg. 114/99, r. 17 (5); O. Reg. 6/10, s. 7 (3); O. Reg. 781/21, s. 7 (3).

Purposes of trial management conference

(6) The purposes of a trial management conference include,

(a) exploring the chances of settling the case;

(b) arranging to receive evidence by a written report, an agreed statement of facts, an affidavit or another method, if appropriate;

(c) deciding how the trial will proceed;

(c.1) exploring the use of expert evidence or reports at trial, including the timing requirements for service and filing of experts’ reports;

(d) ensuring that the parties know what witnesses will testify and what other evidence will be presented at trial;

(e) estimating the time needed for trial; and

(f) setting the trial date, if this has not already been done. O. Reg. 114/99, r. 17 (6); O. Reg. 6/10, s. 7 (4).

Combined conference

(7) A judge may at any time order that part or all of a case conference, settlement conference and trial management conference be combined. O. Reg. 522/21, s. 6 (2).

Combined case and settlement conference following dispute resolution

(7.1) A judge may at any time, on a motion in Form 14B or on the judge’s own initiative, order that all or part of a case conference and settlement conference be combined if,

(a) the parties have resolved or attempted to resolve one or more of the issues in the proceeding through participation in,

(i) a family mediation conducted by a person that the judge determines met the criteria established by the Ministry of the Attorney General to provide government-funded mediation services or was qualified to conduct family mediation by virtue of the person’s knowledge and experience in family law, or

(ii) a legal aid settlement conference conducted by a facilitator;

(b) the family mediation or legal aid settlement conference referred to in clause (a) included screening for power imbalances and domestic violence;

(c) the financial disclosure required in the case under these rules has been provided;

(d) no motions for a temporary order in the case are pending or are contemplated by any of the parties; and

(e) each party files a certificate of dispute resolution (Form 17G). O. Reg. 522/21, s. 6 (2).

Same

(7.2) If a judge makes an order under subrule (7.1),

(a) for the purposes of subrule (13), each party shall serve and file a settlement conference brief in Form 17C;

(b) subrule (9) does not apply to the combined conference; and

(c) the steps required to be taken by the clerk under subrule 39 (5) or 40 (4), as the case may be, are not required to be taken on or before the date of the combined conference. O. Reg. 522/21, s. 6 (2).

Orders at conference

(8) At a case conference, settlement conference or trial management conference the judge may, if it is appropriate to do so,

(a) make an order for document disclosure (rule 19), questioning (rule 20) or filing of summaries of argument on a motion, set the times for events in the case or give directions for the next step or steps in the case;

(a.0.1) make an order about expert opinion evidence, including,

(i) the engagement of an expert by or for one or more parties,

(ii) the use of expert opinion evidence in a case, or

(iii) the provision, service or filing of experts’ reports or written opinions;

(a.1) make an order requiring the parties to file a trial management endorsement or trial scheduling endorsement in a form determined by the court;

(b) make an order requiring one or more parties to attend,

(i) a mandatory information program,

(ii) a case conference or settlement conference conducted by a person named under subrule (9),

(iii) an intake meeting with a court-affiliated mediation service, or

(iv) a program offered through any other available community service or resource;

(b.1) if notice has been served, make a final order or any temporary order, including any of the following temporary orders to facilitate the preservation of the rights of the parties until a further agreement or order is made:

(i) an order relating to the designation of beneficiaries under a policy of life insurance, registered retirement savings plan, trust, pension, annuity or a similar financial instrument,

(ii) an order preserving assets generally or particularly,

(iii) an order prohibiting the concealment or destruction of documents or property,

(iv) an order requiring an accounting of funds under the control of one of the parties,

(v) an order preserving the health and medical insurance coverage for one of the parties and the children of the relationship, and

(vi) an order continuing the payment of periodic amounts required to preserve an asset or a benefit to one of the parties and the children;

(c) make an unopposed order or an order on consent; and

(d) on consent, refer any issue for alternative dispute resolution. O. Reg. 114/99, r. 17 (8); O. Reg. 202/01, s. 5 (3, 4); O. Reg. 89/04, s. 8 (3); O. Reg. 6/10, s. 7 (5); O. Reg. 383/11, s. 4 (3); O. Reg. 322/13, s. 10; O. Reg. 69/15, s. 6 (1); O. Reg. 250/19, s. 5 (1).

Conferences with a non-judge

(9) A case conference or settlement conference may be conducted by a person referred to in subrule (9.1) who has been named for the purpose by the appropriate regional senior judge, unless a party requests a conference with a judge. O. Reg. 142/14, s. 9.

Same

(9.1) For the purposes of subrule (9), the following persons may conduct a conference:

1. A person who is licensed under the Law Society Act to practice law in Ontario as a barrister and solicitor and whose licence is not suspended, if he or she has at least 10 years experience in the practice of family law.

2. A person who was licensed under the Law Society Act to practice law in Ontario as a barrister and solicitor but who has since retired, if, at the time of retirement,

i. his or her license was not suspended, and

ii. he or she had at least 10 years experience in the practice of family law.

3. A master or retired master of the Superior Court of Justice.

4. A retired judge of the Superior Court of Justice. O. Reg. 142/14, s. 9.

Settlement conference before case set for trial

(10) A case shall not be scheduled for trial unless,

(a) a settlement conference has been conducted; or

(b) a judge has ordered that the case be scheduled for trial. O. Reg. 114/99, r. 17 (10); O. Reg. 298/18, s. 12 (1).

Additional requirements, trial in Superior Court of Justice, Family Court of the Superior Court of Justice

(11) In addition to the requirements of subrule (10), unless the court orders otherwise in advance, a case in the Superior Court of Justice or the Family Court of the Superior Court of Justice shall not be scheduled for trial until the trial scheduling endorsement form referred to in clause (8) (a.1) has been completed by the parties and endorsed by the court. O. Reg. 535/18, s. 5 (1).

Same, exceptional circumstances

(11.1) An order under subrule (11) may only be made in exceptional circumstances. O. Reg. 535/18, s. 5 (1).

Same, exceptions

(11.2) Subrule (11) does not apply with respect to any of the following cases, unless an order under clause (8) (a.1) requires the filing of the trial scheduling endorsement form in the case:

1. A child protection case.

2. A case to be scheduled for an uncontested trial.

3. A case referred to in subrule (12). O. Reg. 535/18, s. 5 (1).

When conferences optional

(12) A case conference, settlement conference or trial management conference is not required, but may be held at a party’s request or on a judge’s direction in the following circumstances:

1. In an enforcement.

2. In a request to enforce a family arbitration award under rule 32.1. O. Reg. 388/12, s. 7.

Parties to Serve documents for conference

(13) Each party shall, within the times required under subrule (13.1), serve and file the following documents for the purposes of a conference:

1. For a case conference, a case conference brief (Form 17A or 17B).

2. For a settlement conference, a settlement conference brief (Form 17C or 17D).

3. For a trial management conference held in the Ontario Court of Justice, a trial management conference brief (Form 17E).

4. For a trial management conference held in the Superior Court of Justice or the Family Court of the Superior Court of Justice, the following documents, subject to paragraph 5:

i. The trial scheduling endorsement form referred to in clause (8) (a.1), completed by the parties and endorsed by the court, if it has not already been filed.

ii. An offer to settle all outstanding claims in the case.

iii. An outline of the party’s opening statement.

5. For a trial management conference held in the Superior Court of Justice or the Family Court of the Superior Court of Justice in relation to a case to which subrule (11) does not apply by virtue of subrule (11.2), a trial management conference brief (Form 17E). O. Reg. 535/18, s. 5 (2).

Case conference brief in child protection case

(13.0.1) In a child protection case, a case conference brief shall be served and filed only if a case conference is being held under subrule (1.1). O. Reg. 91/03, s. 6 (3).

Time for service of briefs

(13.1) The party requesting the conference (or, if the conference is not requested by a party, the applicant or party making the motion) shall serve and file the documents required to be filed for the conference under subrule (13) not later than six days before the date scheduled for the conference and the other party shall do so not later than four days before that date. O. Reg. 202/01, s. 5 (5); O. Reg. 69/15, s. 6 (2); O. Reg. 298/18, s. 12 (2); O. Reg. 535/18, s. 5 (3).

Parties to confirm attendance

(14) Each party shall,

(a) revoked: O. Reg. 781/21, s. 7 (4).

(b) before giving the clerk confirmation of the conference in Form 17F under clause (c), give a copy of the confirmation of conference to every other party using mail, fax, email or any other method, except in a child protection case; and

(c) not later than 2 p.m. three days before the conference date, give the clerk the confirmation of conference (Form 17F) by,

(i) delivering it to the court office,

(ii) sending it to the court office by email, or

(iii) submitting it through the Justice Services Online website. O. Reg. 298/18, s. 12 (3); O. Reg. 522/21, s. 6 (3); O. Reg. 781/21, s. 7 (4, 5).

Effect of failure to confirm

(14.1) Unless the court orders otherwise, a conference shall not be held if confirmation of the conference is not given to the clerk in accordance with clause (14) (c). O. Reg. 298/18, s. 12 (3).

Parties to update confirmation

(14.1.1) If a party who has given a confirmation of conference determines at any time before the conference is held that the confirmation is no longer correct, the party shall, if possible, immediately,

(a) give a copy of the corrected confirmation of conference in Form 17F to every other party using a method listed in clause (14) (b) and subsequently give the clerk the corrected confirmation of conference by a method listed in clause (14) (c); or

(b) in a child protection case, give the clerk a corrected confirmation of conference in Form 17F by a method listed in clause (14) (c). O. Reg. 298/18, s. 12 (3).

Requirement to bring documents to settlement conference

(14.2) The following documents shall be brought to a settlement conference:

1. Any document that supports a party’s position in respect of a dispute regarding the value of property or regarding the amount of a debt, in the case of a property claim under Part I of the Family Law Act.

2. Any document required to be served under rule 13 (financial disclosure), if there is a dispute as to whether it was served. O. Reg. 69/15, s. 6 (4).

Parties and lawyers to come to conference

(15) The following shall come to each conference:

1. The parties, unless the court orders otherwise.

2. For each represented party, the lawyer with full knowledge of and authority in the case. O. Reg. 114/99, r. 17 (15).

(16)-(17) Revoked: O. Reg. 152/21, s. 4.

Costs

(18) Costs shall not be awarded at a conference unless a party to the conference was not prepared, did not serve the required documents, did not make any required disclosure, otherwise contributed to the conference being unproductive or otherwise did not follow these rules, in which case the judge shall, despite subrule 24 (10),

(a) order the party to pay the costs of the conference immediately;

(b) decide the amount of the costs; and

(c) give any directions that are needed. O. Reg. 114/99, r. 17 (18); O. Reg. 235/16, s. 3; O. Reg. 298/18, s. 12 (4); O. Reg. 535/18, s. 5 (4).

Costs may be awarded later

(18.1) Subrule (18) does not prevent the court from awarding costs in relation to the conference at a later stage in the case, if costs are not awarded at the conference. O. Reg. 298/18, s. 12 (5).

Conference agreement

(19) No agreement reached at a conference is effective until it is signed by the parties, witnessed and, in a case involving a special party or a child party, approved by the court. O. Reg. 114/99, r. 17 (19); O. Reg. 250/19, s. 5 (2).

Agreement filed in continuing record

(20) The agreement shall be filed as part of the continuing record, unless the court orders otherwise. O. Reg. 114/99, r. 17 (20).

Continuing record, trial management conference briefs

(21) Trial management conference briefs form part of the continuing record. O. Reg. 89/04, s. 8 (5).

Continuing record, case conference briefs

(22) Case conference briefs do not form part of the continuing record unless the court orders otherwise and shall be returned at the end of the conference to the parties who filed them or be destroyed by court staff immediately after the conference. O. Reg. 89/04, s. 8 (5).

Deletions from case conference brief included in record

(22.1) If the court orders that a case conference brief form part of the continuing record, that portion of the brief that deals with settlement of the case shall be deleted. O. Reg. 89/04, s. 8 (5).

Continuing record, settlement conference briefs

(22.2) Settlement conference briefs do not form part of the continuing record and shall be returned at the end of the conference to the parties who filed them or be destroyed by the court staff immediately after the conference. O. Reg. 89/04, s. 8 (5).

Confidentiality of settlement conference

(23) No brief or evidence prepared for a settlement conference and no statement made at a settlement conference shall be disclosed to any other judge, except in,

(a) an agreement reached at a settlement conference; or

(b) an order. O. Reg. 114/99, r. 17 (23).

Settlement conference judge cannot hear issue

(24) A judge who conducts a settlement conference about an issue shall not hear the issue, except as subrule (25) provides. O. Reg. 91/03, s. 6 (4).

Exception, child protection case

(25) In a child protection case, if a finding that the child is in need of protection is made without a trial and a trial is needed to determine which order should be made under section 101 of the Child, Youth and Family Services Act, 2017, any judge who has not conducted a settlement conference on that issue may conduct the trial. O. Reg. 91/03, s. 6 (4); O. Reg. 298/18, s. 12 (6).