JCC Scheduling Problems
Here’s an issue: Rule 60E(6) of the Rules of Court (Rule 7-1(8) of the Family Rules which come into effect in a few days) dictates that a Requisition and Notice of Judicial Case Conference and a copy of Parts 1, 2, 3, and 4 of a Form 89 (soon to be F8) Financial Statement must be served on a party at least 30 days before the date set for the JCC. In the event that a JCC is scheduled for only few days after service, the only recourse is to attend and complain at the very JCC that was improperly scheduled. There should be a requirement to provide proof of service or delivery, as the case may be, at least three weeks before the conference, failing which it would be struck.
Posted: June 21st, 2010 under Legislation Analysis, Procedure.
Tags: 60E(6), 7-1, Delivery, Family Law Rules, JCC, Judicial Case Conference, Rules, Rules of Court, Service
This Post is not Privileged
Privileged communication is defined in the in the law.com dictionary as “statements and conversations made under circumstances of assured confidentiality which must not be disclosed in court”. It has been established that the phrase “Without Prejudice”, written at the head of correspondence identifies it as being privileged. It is a far too little known fact, however, that the simple act of typing the words “Without Prejudice” at the top of a letter does not endow it with the magical power of invisibility. You will, for example, inevitably be disappointed if you write those words at the head of an insulting letter to your erstwhile spouse expecting that letter to be omitted from evidence. A document is not privileged because you label it as such. Rather, the privilege relates to the character of the document. This means that not all letters labeled “Without Prejudice” are as advertised. It also means that some letters are privileged without being branded.
The law of privilege is well reviewed in the Alberta case of Leonardis v. Leonardis, 2003 CarswellAlta 940. There are three major types of privilege that parties to a family action might encounter: The first is privilege enjoyed by communication relating to legal advice between solicitor and client. This is most clearly embodied in correspondence between a lawyer and her client. The second is the privilege attached to documents that have been created primarily to further litigation. A little less defined than the first, this applies to such documents as expert reports. The third type of privilege attaches to communications in furtherance of settlement, including verbal and written discussions, offers and proposals.
The first two forms of privilege belong to the one party in the litigation partaking in the communication or obtaining the documentation. The third form, however – that of settlement communication – belongs to both the parties. This means that while the privilege of an expert report can be waived by a party wanting to use that report in court, the privilege attached to settlement negotiations can only be waived by both parties.
Because labeling something “Without Prejudice” does not change its privilege status, make sure you know what that status is before you mail the letter or hit the send button.
Posted: May 11th, 2010 under Case Analysis, Procedure.
Tags: Leonardis, Priviledge, without prejudice
Anonymizing Orders and Pleadings
By its nature, the court system is intended to be open to the public, with information about litigants available to everyone. The court is presumed to be open to the public. However, sometimes clients wish a little more privacy for any number of reasons and ask how that might be accomplished.
The most common way to maintain some privacy in a court action is to amend the style of cause (Name vs. Name) by substituting the parties’ initials instead of their full names. Unfortunately, there is no particular rule of court or legislation that permits this as of right. Instead, there are three ways this is done.
First, a judge or master can unilaterally make the decision to substitute initials. This is uncommon, but in family cases involving sensitive issues, may be ordered. Second, both parties can agree to substitute initials for names. This is the most common manner in which pleadings are amended.
Finally, the party wishing to be anonymous in the eyes of the public may bring an application before the court. Before directing the use of initials, the court must be satisfied that the party’s interest in privacy outweighs the court’s interest in preserving openness and freedom in the courts. It is not enough that a party might be embarrassed by allegations or testimony made in the course of the litigation. The concerns must be stronger. For example, if there would be a deleterious effect on the party’s livelihood or reputation, it may be sufficient.
An example of the court considering the issue of anonymity can be found in D. v. D., 2008 BCSC 306
As a cautionary note, an application to substitute initials in the style of cause should be brought as soon as it is practicable and certainly before any damaging information or statements are disclosed through the pleadings in the matter.
Posted: May 3rd, 2010 under Procedure.
Tags: 2008 BCSC 306, Anonymizing Pleadings, D. v. D., Initials
Financial Statement Assumptions
Some thoughts about Financial Statements: The Form 89 financial statement is divided into major sections – income, expenses and property. Generally, income and property pose few conceptual problems. Parties might disagree with values of assets or with characterization of income, but there little room for assumptions (ie, you would not include a Ferrari in section 2 of Part 3 (Vehicles) premised on “IF I had a Ferrari, THEN I would have a Ferrari”).
The same cannot be said for the expense section of the Form 89, which is rife with assumptions. It is not clear on the face of the document what, exactly, is called for. Is one being asked to say what one’s expenses have been for the past year? What one expects them to be in the coming year? What they will be if one gets what one is proposing that the court order, or what one will be paying if the other party is successful? Does one calculate expenses on the most one believes one should be spending or the least? The answer to all of these questions is, unfortunately, yes.
Because there is so much grey in the Financial Statement, it is important that one clarifies for the court any assumptions and decisions that you make. If one is filling out the document based upon what one expects to pay if one receives what one is seeking, that assumption should be set out in affidavit material and brought to the attention of any judge hearing a related matter. Clarifying affidavits are very helpful for the court and helps them to see exactly what logic lies behind the income and expense calculations you or your counsel may be promoting.
Posted: February 24th, 2010 under Child Support, Procedure, Property Division, Spousal Support.
Tags: Financial Statement, Forms, Procedure, Supreme Court
Notices to Admit
In family law, there are several methods to obtain information and disclosure from the opposing party. Questions can be posed by way of interrogatories (ie. written requests for information) or in Examinations for Discovery (meetings during which the person being examined is required to answer questions relating to the matters in question). Another method through which to obtain information from a party is a Notice to Admit. A Notice to Admit is a document which lets a party seek the other party’s admission as to the truth of facts alleged in the Notice or the authenticity of documents specified in the Notice.
When you receive a Notice to Admit, you have two weeks to respond, either by:
1) admitting the truth or authenticity requested;
2) denying the truth or authenticity requested;
3) describing in detail the reasons why the admission cannot be made; or,
4) stating that you refuse to admit on the grounds of privilege or irrelevancy, or that the request is otherwise improper, and describes in detail the reasons for the refusal.
If you do not respond to the Notice to Admit in the allotted two week period, you are deemed to have admitted everything that was in that Notice. This is very effective and requires that, if you receive a Notice to Admit, you carefully and thoroughly review the facts and documents set out, and that you promptly and accurately respond to that Notice.
In certain cases, people have for whatever reason failed to respond to a Notice to Admit and, despite the untruth of the facts alleged and the unauthenticity of the documents set out, they are deemed true and authentic for the purposes of the trial or hearing. Master J.W. Horn in Hamilton v. Hamilton, 1999 Can LII 7029 (B.C.S.C.) set out eight principals for a court to consider in determining whether to withdraw a deemed admission. They are:
1. That the test is whether there is a triable issue which, in the interests of justice, should be determined on the merits and not disposed of by an admission of fact.
2. That in applying that test, all the circumstances should be taken into account including the following:
3. That the admission has been made inadvertently, hastily, or without knowledge of the facts.
4. That the fact admitted was not within the knowledge of the party making the admission.
5. That the fact admitted is not true.
6. That the fact admitted is one of mixed fact and law.
7. That the withdrawal of the admission would not prejudice a party.
8. That there has been no delay in applying to withdraw the admission.
While there is a chance that a deemed admission may be withdrawn and replaced with one accurately reflecting the truth and authenticity of the facts and documents set out, the safest and most expedient method of dealing with a Notice to Admit is simply to respond to it in time.
Posted: January 14th, 2010 under Procedure.
Tags: Notice to Admit, Procedure
