One of the important first steps in any family law proceeding is the initial case conference. The purpose of a case conference is to allow the parties and their lawyers to appear before a judge in order to discuss where the case is at, and see if there are any opportunities for settlement. Although the presiding judge at a case conference is permitted to make procedural orders, as well as orders on consent, they are not, generally speaking, going to make any substantive orders in the case.
In Afful v. Laing, a family law decision released earlier this year, the question was whether a temporary custody order which was imposed on a father during a case conference should be set aside. The appeals judge concluded that the types of orders anticipated by the Family Law Rules for a case conference would include orders for disclosure of financial information, or other orders that were necessary in order to move the case forward.
Parties have a right to procedural fairness and part of this right includes the right to be able to respond to allegations made against you. In Afful, the father had no opportunity to respond to the allegations made against him, or to even present his own case for increased access to the child. There needs to be affidavit material presented to the court before a judge can make a temporary substantive order, and this type of material is generally only presented at the stage of an interim motion. Case conferences don’t rely on affidavit evidence.
Before a substantive order is made in a case, both parties must have the opportunity to present sworn
affidavit evidence. Case conference briefs, although they might provide the judge with an overview of
what’s going on, are not sworn documents, and, as such, do not constitute evidence. Affidavits, on the
other hand, are sworn to be true and do constitute evidence.
Accordingly, the judge hearing the appeal in Afful decided to set aside the order for access made by the case conference judge.