PRE‐TRIAL CONFERENCES IN FAMILY DISPUTES**

• DOI: http://doi.org/10.1111/j.174-1617.1986.tb00145.x
• Author: A.C. Hamilton
• Date: 01 December 1986
• Published date: 01 December 1986

PRE-TRIAL CONFERENCES

IN

FAMILY DISPUTES**

A.C.

Hamilton*

In order to discuss the pre-trial confer-

ence in Manitoba,

I

feel it necessary to out-

line the system within which it functions.

The unified family court system that is now

in place is very different from an adversarial

court system.

All

family-related matters are

now dealt with in one court and the court

and its procedures are structured to accom-

modate family disputes.

The Family Division of the Court of

Queen’s Bench in Manitoba now has a court-

connected conciliation service enabling the

judicial and social arms of the court to re-

main independent but at the same time, to

act in concert.

The initial efforts of both the court and

the social arm are directed to attempting to

resolve family disputes without the neces-

sity of a trial. There is not merely a choice

between settling a case out of court at me-

diation or going to trial within the court

system. The court

itself

offers a number of

options within the court setting and the

option of proceeding to trial is the last avail-

able option. An adversarial trial is resorted

to less and less as the alternate methods

of resolution are proving to be more satis-

factory to the parties involved and, inci-

dentally, to lawyers and judges who have

traditionally been thought of as preferring

the adversarial system.

While a trial is the last resort, the pre-

trial conference is the second last step in

the process. Prior to any pre-trial confer-

ence, a number

of

other steps provide an

opportunity for issues to be resolved. Cases

involving custody and access are referred

to mediation. Mediation is available in ev-

‘A.C. Hamilton, Associate Chief Justice, Family

Division, Court of Queen’s Bench, 408

York

Avenue,

Winnipeg, Manitoba R3C OP9, Canada

**This paper was presented at the Eastern Unified

Family Courts and Conciliation Conference,

St.

Johns, Newfoundland, Canada

on

October 22,1985.

ery case where custody or access are an

issue. It

is

authorized by statute and regu-

lated by the rules of court. While virtually

all parties are referred to mediation there

is,

of course,

no

guarantee they will ac-

tively participate once they arrive at the

mediator’s door. It is the task of the intake

worker to explain the system and the avail-

able options in the hope that the parties

will avail themselves of mediation, at least

to the point of making an honest effort to

see whether it is appropriate to their situa-

tion. The options are to have a worker as-

sist the parties to arrive at an agreement or

to have a worker assess the situation and

provide the court with a report analyzing

the situation and providing an opinion on

the arrangement that would be in the best

interests of the child or children of the dis-

puting parties.

Currently, seven counselors with Mas-

ter of Social Work degrees and a variety of

experience in mental health, child develop-

ment, stress management and counseling,

are attached to the court. They are employ-

ees of the Department of Community Serv-

ices and as well are appointed as officers

of the court and designated “conciliation

officers” and “family investigators.” These

positions are defined by Section

52(9)

of

The Queen’s Bench Act:

52(9)

In this section, “conciliation offi-

cer” or “family investigator” means

an

employee of the government of Mani-

toba appointed for the purposes of this

section as a conciliation officer or fam-

ily investigator or both by the Attorney-

General.

52(5)

Where an issue is referred for con-

ciliation, the conciliation officer, with

the assistance of such other concilia-

tion officers, or a judge, as may be

required, shall attempt to resolve the

Section

52(5)

of the

Act

provides:

51

CONCILIATION COURTS REVIEWNOLUME

24,

NUMBER SlDECEMBER

1986