In the Courts’ continuing efforts to utilize settlement techniques to avoid costly court proceedings, a major component of that strategy is the judicial case conference (JCC) in the BC Supreme Court.
A JCC is a mandatory settlement conference where the parties and their counsel appear before a judge or master of the court to discuss the issues and attempt to settle them prior to bringing a court application. The rules provide that no court applications may be brought until a JCC has taken place, with a few minor exceptions.
One significant feature of the JCC process is that the Court cannot make any court orders unless both parties agree. It is that provision which led to the British Columbia Court of Appeal overturning a judge’s orders made at a JCC without the consent of the parties. What is remarkable is that the judge not only made orders, knowing the parties did not consent, but admitted that if the parties didn’t like it, they could take it up with the Court of Appeal…which they did. Morales v. Puri 2016 BCCA 216.
The issue between the parties was the parenting time to be granted to the child’s father, where the mother insisted on only telephone and Skype access. The following dialogue ensued:
THE COURT: … – – I’m going to make the orders even though they’re not by consent, and if a party is aggrieved by that, they can appeal to the Court of Appeal.
COUNSEL FOR MOTHER: My client has agreed with every – – every order up until – –
THE COURT: Well, … whether she has consented or not, it’s clear to me that everything that I have ordered has not been by consent, and therefore I’m making the orders whether they are by consent or not. If either of the parties wishes to take an appeal, they know how to do it.
All I’m saying…is you – – by raising the issue, you have made it absolutely clear that everything that I’ve ordered was not by consent and therefore, you have established a lack of jurisdiction for me to have done what I have done.
The orders made included the following:
(a) granting Ms. Morales sole guardianship, sole parental responsibilities, and primary residence of the child on an interim basis;
(b) requiring Ms. Morales to give Mr. Puri’s parents access to the child on Saturdays;
(c) granting Mr. Puri supervised access to the child at his parents’ residence;
(d) providing that after April 1, 2016, either party can bring an application to review Mr. Puri’s supervised access; and
(e) requiring Mr. Puri to provide the child with a cellular telephone at his cost to facilitate telephone access with her on Tuesday and Thursday evenings.
Mr. Puri brought an appeal which resulted in five appearances before the Court of Appeal, all of them unnecessary as at the appeal hearing, Ms. Morales finally conceded that the appeal should be allowed. Despite her protests, Mr. Puri was awarded costs.
The Appeal Court considered the judge’s conduct saying:
“We cannot condone what occurred. The judge’s decision to disregard the limits on his authority has needlessly increased the costs of this litigation and resulted in the unnecessary expenditure of judicial resources in both this Court and the trial court. No doubt, it has caused the parties additional stress, exactly what the judge sought to avoid.”
The cost to the justice system is obvious, however, the cost to the parties was absorbed by the legal aid system in BC. It is likely that had the parties been responsible for the cost of legal services the matter would have been quickly resolved.
Lawdiva aka Georgialee Lang