In October, 2020 the Queen’s Bench Rules were amended to enable parties in Family law proceedings to participate in “Binding Pre-trial Conferences.”

For background, a typical Pre-trial Conference is intended to facilitate the resolution of a family law matter, or if that is not possible, to manage the action until the matter is set down for trial. A Pre-trial is essentially a mandatory mediation session with a judge, where parties can exchange settlement offers to try to resolve matters to avoid a trial.

The difference being with a Binding Pre-trial Conference, however, if a negotiated settlement is not reached, that the presiding judge may step in and make a binding decision for the parties. The practical result is that the parties are able to avoid a trial if they cannot agree on a resolution.  The judge may determine that they are unable to make a binding decision on all of the issues, for whatever reason, and may direct that those issue(s) be set for trial.

It is important for the parties to Binding Pre-trial Conferences to be aware of the risks of submitting to such a process, as there are no rights to appeal the decision of the judge, except with leave from the Binding Pre-trial Conference Judge on an application. This means a party asks the Judge who made the decision to overturn their own decision. In addition, the parties are required to agreed in advance of the Binding Pre-trial that they will not make any collateral attack on any determination or decision made by the presiding judge.  The result is that the Binding Pre-trial Judge has broad powers with no judicial oversight.

Practical Steps – How can my Family Law matter proceed to a Binding Pre-trial Conference?

To begin, in order for a family law matter to be eligible for a Binding Pre-trial Conference, both parties must agree upon the process.

If agreement is reached, to obtain a Binding Pre-trial Conference, the following steps must be completed:

1. The parties must submit a Joint Request for Binding Pre-trial Conference (Family) in Form 4-21.3 to the Court; and
2. The parties must enter a Binding Pre-trial Conference Agreement (Family) in Form 4.31 4B.

The Binding Pre-trial Conference Agreement (Family) identifies the issues to be resolved, those issues the parties wish to be directed to a Binding Pre-trial Conference, and acknowledgments respecting the choice of process. The parties in a family law matter may limit the scope of issues for the Judge to determine.

A party to a Binding Pre-trial Conference (Family) Agreement must receive independent legal advice, and a Certificate confirming same is to be appended to the Agreement.

Parties submit Binding Pre-trial Briefs detailing the issues, the law that relates to the issues, and summaries of the evidence they rely upon, including medical and expert reports, financial documents, etc. and may include a settlement proposal.

Unlike Pre-trial Briefs, which are due 10 days prior, a Binding Pre-trial Brief is due to be filed with the Court 15 days prior to the date scheduled for the Binding Pre-trial Conference.

Binding Pre-trial Judge

The parties are informed of the Judge assigned to conduct the Binding Pre-trial Conference 30 days before the Binding Pre-trial Conference.

How do I get out of a Binding Pre-trial Conference?

If a party should wish to withdraw from a Binding Pre-trial Conference, they may do so at any time up 10 days before the start of the Binding Pre-trial Conference by serving a Notice of Withdrawal From Binding Pre-trial Conference in Form 4-21.7.

If a party should change their mind less than 10 days before the Binding Pre-trial Conference is scheduled to begin, they need to seek leave of the Court to withdraw their consent.

If consent is withdrawn, the Binding Pre-trial Conference simply proceeds as a Pre-trial Conference and if the parties’ settlement efforts are unsuccessful, the matter would proceed to trial.

PROS/CONS

The pros of a Binding Pre-trial Conference primarily relate to efficiency and cost. It will undoubtedly be more efficient and cost effective to have all of your family law issues dealt with at a Binding Pre-trial Conference rather than having to wait and pay for an expensive trial, when it can still take months for a decision to be rendered.

However, agreeing to submit to a Binding Pre-trial Conference is not without risk. The risks involved with a Binding Pre-trial Conference include that the Court will not have the opportunity to hear all of the evidence you would otherwise present at a trial, prior to making its determination.

In addition, as noted above, there is no right to appeal the decision of the Binding Pre-trial judge. This is a significant limitation to the remedies typically available to parties when third party arbiters are involved in determining matters.

A Binding Pre-trial Conference could be a useful process for parties in family law proceedings. I recommend you seek legal advice in relation to your matter.