Rules Promoting Settlement in Family Matters

Resolving a court proceeding without a trial is still possible

Just because a court proceeding has started, it doesn’t mean you will be going to court. The majority of cases settle prior to trial.

There are many reasons why it's important that family law court proceedings are resolved by agreement. From the court's point of view, settlement helps to protect the children from ongoing conflict, settlement frees up valuable court and administrative resources that can be applied to other cases, and settlement lessens the likelihood that the proceeding will require ongoing court hearings in the future. From the point of view of the parties, settlement is cheaper than trial, helps to protect the children from ongoing conflict, and allows you to stop living in limbo and instead get on with your life. Resolution by agreement allows you more control and creativity about the terms of settlement and gives everyone involved the best chance of having a tolerable relationship with each other as time goes on.

Lawyers also have an interest in settling matters, for all of the same reasons as the courts and the parties. In addition, lawyers have a professional and an ethical duty to promote settlement wherever possible, provided that a proposed settlement is not an unreasonable compromise of their clients' interests. This is written into the Code of Professional Conduct for Lawyers.

The laws and rules of court for family law proceedings have evolved to provide additional opportunities for settlement and steer people away from trial and out of court. In fact, section 4 of the provincial Family Law Act says that the purposes of the part of the Act on dispute resolution are to:

(b) to encourage parties to a family law dispute to resolve the dispute through agreements and appropriate family dispute resolution before making an application to a court;

(c) to encourage parents and guardians to

(i) resolve conflict other than through court intervention, and

(ii) create parenting arrangements and arrangements respecting contact with a child that is in the best interests of the child.

In general, you should try to resolve a court proceeding without going to trial, if you can; however, the settlement, whether it's reached with the help of a judge or not, must be fair and reasonable. (It's always a relief to settle a court proceeding, but if the settlement is significantly unfair to either party a return to court may be inevitable!) All parties must agree that a proposed settlement is reasonable and agree to end the court proceeding on the terms of that settlement.

This section will discuss the options available in the Supreme Court and the Provincial Court to try to settle your proceeding before trial.

Supreme Court

Request another judicial case conference

A judicial case conference, usually referred to as a JCC, is a relatively informal, off-the-record, private meeting between the parties, their lawyers, and a master or judge in a courtroom. A JCC must be held in all contested family law court proceedings. Further information about JCCs can be found in the section Case Conferences in a Family Law Matter of this Chapter.

The initial JCC is usually held early on in the proceeding, but parties may request an additional JCC at any time, even if the parties already had one. Under Rule 7-1(15) of the Supreme Court Family Rules the court has very broad powers at a JCC, including the following, to promote settlement:

• identify the issues that are in dispute and those that are not in dispute and explore ways in which the issues in dispute may be resolved without recourse to trial,
• mediate any of the issues in dispute,
• without hearing witnesses, give a non-binding opinion on the probable outcome of a hearing or trial.

Request a settlement conference

Settlement conferences are available in the Supreme Court at the request of both parties. They are usually not mandatory but can be ordered by a judge or master. They are relatively informal, off-the-record, private meetings between the parties, their lawyers, and a master or judge in a courtroom for the purpose of exploring all possibilities of settlement (See Rule 7-2 of the of the Supreme Court Family Rules). For more information about the purpose and scheduling of a settlement conference, see the section on Case Conferences, in this Chapter.

Serve a Notice to Mediate

A Notice to Mediate can be served by any party in a family law proceeding in the Supreme Court. The purpose of the Notice to Mediate is to let the other party know you want to mediate and to make them attend mediation, unless there is an exception. A Notice to Mediate must be served at least 90 days after the Response is filed and 90 days before the trial date. The parties have to attend mediation unless one of the following exceptions applies:

• there has already been a mediation session,
• there is a protection order against one party,
• the mediator advises the participants the mediation is not appropriate or that the mediation process will not be productive, or
• the court orders that a party is exempt because, in the court’s opinion, it is impracticable or materially unfair to require the party to attend.

The Notice to Mediate (Family) Regulation provides the guidelines for proceeding with the mediation. The parties mutually select a mediator within 14 days after service of the Notice to Mediate. If the parties cannot agree, any party may apply to a roster organization for the appointment of a mediator. The process for the appointment of a mediator is set out in section 8 of the Notice to Mediate (Family) Regulation For more information about the Notice to Mediate see the Legal Services Society of British Columbia's Family Law website's information page "Getting a divorce" under the section "Making mediation happen in a family law case in Supreme Court."

Costs

In the Supreme Court, a successful party can be entitled to recover costs and disbursements from the losing party, but there are exceptions. See Rule 16-1 of the Supreme Court Family Rules.

Costs are intended as partial payment of legal fees and normally do not amount to more than approximately 30% of a party’s actual legal fees. Under the Supreme Court Family Rules you are awarded certain costs for specific steps taken in the proceeding. See Appendix B in the Supreme Court Family Rules. Costs for some of the steps are valued according to the level of difficulty of each case. There are three levels of difficulty:

1. less than ordinary difficulty,
2. ordinary difficulty, and
3. more than ordinary difficulty.

Ordinary difficulty is the default if the court makes no determination on difficulty. The steps you can claim costs for are shown in Form F71 Bill of Costs, and they're called tariff items.

The following is an example of costs that could be payable for a 3 day trial:

Item	Description	Costs ($)
1	Correspondence, conferences, instructions, investigations or negotiations and preparation, filing and service of notice of family claim, response to family claim, counterclaim or response to counterclaim.	$3,000
2	Process for discovery and inspection of documents.	$2,000
3	Preparation for and attendance at each examination for discovery. Claim $1,000 for each day or part day. Assume 1 day for each party.	$2,000
4	Preparation for and attendance at each contested application. Claim $1,000 for each half day of attendance. Assume 1 (one) half day of attendance.	$1,000
5	Preparation for and attendance at each judicial case conference or settlement conference. Claim $1,000 for each half day of attendance. Assume 1 JCC.	$1,000
6	Preparation for each uncontested application or trial management conference. Claim $500 each. Assume 1 trial management conference.	$500
7	Preparation for and attendance at trial of family law case or of an issue in a family law case. Claim $2,000 per day for each day or part of a day of trial up to 5 days, and $3,000 for each additional day or part of a day trial. Assume 3 days of trial.	$6,000
	Total Costs	$15,000

In addition to the costs of $15,500 for the 3 day trial, the winning party could also be entitled to their disbursements. Disbursements are out of pocket expenses, such as filing fees, witness fees, travelling and subsistence expenses, discovery transcript fees, experts’ fees, and fees for medical/legal reports, photocopies, couriers, postage, and the like. Generally, most disbursements are recoverable, provided they are considered to be reasonable and necessary. The potential of a cost award being made at a hearing or trial can provide an incentive for the parties to settle and agree to not have to pay costs to each other. It can encourage parties to be more reasonable in their positions and try to narrow the issues that need court intervention. For more information about costs, see the Legal Services Society's Family Law website's information page "If you have to go to court" under the section "Costs and expenses."

Offer to Settle

You can make an offer to settle at any time during a court proceeding. A formal offer to settle under Rule 11-1 of the Supreme Court Family Rules has special potential costs consequences if the trial proceeds and the decision of the judge is not as favourable as the offer. To qualify as a formal offer under Rule 11-1 the offer must:

• be in writing,
• be served on all parties in the proceeding, and
• contain the following sentence:

"The [Claimant/Respondent], [name of party], reserves the right to bring this offer to the attention of the court for consideration in relation to costs after the court has pronounced judgment on all other issues in this proceeding."

An offer to settle cannot be disclosed until all issues in the family law case, other than costs, have been determined. An offer to settle is not an admission. The court can consider an offer to settle when determining whether or not to make a costs order and there are a number of options for a court to consider. For example a court may award a party double costs for every step taken from the date the offer was served.

The incentive of formal offers to settle is to encourage parties to make reasonable offers and for parties to accept reasonable offers. A party receiving a formal offer to settle needs to consider the risks of proceeding to trial. If the offer is as good as or better than what the judge decides, the party who made a reasonable offer may be awarded double or extra costs from the date of the offer if that party is successful at trial. A party who did not accept a reasonable offer that is as good as or better than what the judge decides may be denied costs even if they were successful at trial.

The court will take into consideration the following when considering an offer to settle:

• whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settle was delivered or on any later date,
• the relationship between the terms of settlement offered and the final judgment of the court,
• the relative financial circumstances of the parties, and
• any other factor the court considers appropriate.

An offer to settle does not expire if a counter offer is made. For more information on making an offer to settle see the Legal Services Society's Family Law website's information page "If you have to go to court." Under the section "Trials in Supreme Court, see "Making an offer to settle."

Provincial Court

There are fewer incentives in the Provincial Court (Family) Rules for settlement. Costs are not payable in Provincial Court, except that a judge has the discretion under Rule 11 to order the party requiring the expert's attendance pay for an expert’s attendance at court if the judge determines that it was unnecessary to call the person to attend.

Request a family case conference

Family case conferences may be ordered by a judge if guardianship, parenting arrangements, or contact with a child are contested issues. A judge has a number of powers at a family case conference that can assist with settlement including to mediate any of the issues in dispute and, without hearing witnesses, give a non-binding opinion on the probable outcome of a hearing or trial. To set a family case conference you can request one by bringing a Notice of Motion (Form 16). For further information, see the description of Family Case Conferences in the section on Case Conferences in this chapter. For a summary of how to schedule a case conference, see How Do I Schedule a Family Case Conference for Hearing? in the How Do I? part of this resource.

Resources and links

Legislation

• Provincial Court Act
• Provincial Court Family Rules
• Supreme Court Act
• Supreme Court Family Rules
• Court Rules Act
• Notice to Mediate (Family) Regulation

Resources

• Provincial Court Family Practice Directions
• Supreme Court Family Practice Directions
• Supreme Court Administrative Notices
• Supreme Court Trial Scheduling

Links

• Provincial Court website
• Supreme Court website
• Supreme Court website: Litigants' Guide to Judicial Case Conferences
• Legal Services Society's Family Law website's information pages "Getting a divorce" (with information on making a mediation happen) and "If you have to go to court" (with information on making an offer to settle plus judicial and family case conferences)

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Shannon Aldinger and Julie Brown, June 11, 2019.

JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.