The Youth Division of the Court of Québec offers an amicable dispute resolution conference service in youth protection matters. The service is provided in all judicial districts where the judges have received the relevant training.
1. LEGAL FONDATION
Article 4.3 of the Code of Civil Procedure stipulates that it is the judge's duty to promote the reconciliation of the parties.
Furthermore, the legislator incorporated into articles 151.14 at 151.23 of the Code of Civil Procedure the main elements of an amicable dispute resolution conference. Those articles have been integrated into section 85 of the Youth Protection Act through the amendments made by chapter P-34 of the 2006 Statutes of Québec.
a) An amicable dispute resolution conference is offered to parties that want one, in order to promote better harmony between the parties involved in a dispute, in the interest of the child and in keeping with his or her rights.
b) It is offered to directors of youth protection, children and parents, in order to give them an opportunity to discuss their problematic situation in the presence of a conciliating judge and thereby attempt to resolve their dispute in a friendlier atmosphere than that in a hearing room. It is possible to have a third party participate, with the consent of all the parties.
c) A request for conciliation can be made at any time during the judicial process, although ideally it should be made before the hearing on the merits begins.
d) The process is twofold:
i.) The first part is aimed at determining whether the security or development of the child is in danger. If the parties recognize a number of factual elements required for the application of the presumption under section 38 of the Act or the application of section 38.1, the judge informs the parties that he or she considers the security or development of the child to be in danger and invites them to proceed with second part of the process.
ii.) In the second part of the process, the judge suggests to the parties that they examine different options with a view to preparing a draft agreement on the measures applicable to their situation.
e) The conciliating judge is responsible for ensuring that the agreement is in keeping with the child's interest and the principles established in the Act, in which case the judge must confirm the agreement and make it enforceable. Failing an agreement, the conference ends and the case takes its normal course before another judge.
f) If an agreement is reached during the proceeding, the consent of the judge seized of the case is required, since he or she must agree to suspend the proceeding to make it possible to hold an amicable dispute resolution conference, presided over by a colleague. If an agreement is reached before the conciliating judge, the adjudicating judge is not longer seized of the case. Failing an agreement, the case goes back before the adjudicating judge seized of it and the hearing continues.
g) During the conference and in order to enable progress to be made in the discussions, the conciliating judge can express his or her opinion regarding the situation, but at no time are the parties bound by the opinion.
h) Amicable dispute resolution conferences are possible once a case is instituted. If the proceeding introductive of suit is a motion for protection, the case is assigned to a judge in the Youth Division, designated by the coordinating judge.
i) If the proceeding introductive of suit is a motion for review or extension of and order, the case is assigned to the judge who issued the previous order.
j) If conciliation is successful, the conciliating judge becomes the judge who follows up on the case.
k) If, on the other hand, the parties choose to go before and adjudication judge, the case is referred to a colleague.
3. CASE SELECTION CRITERIA
a) Cases dealing with issues of neglect and behaviour problems of a child, and with situations contemplated in section 38.1 of the Act are eligible for an amicable dispute resolution conference, as are all other cases selected by coordinating judges, provided the parties are of good faith and recognize certain elements demonstrating that the security or development of the child is or may be in danger.
b) However, a coordinating judge may refuse to hold a conference following the joint request of the parties, if he or she considers, upon examining the record, that the inequality of the parties is such that it might have a negative impact on the process.
4. TERMS OF ACCESS
a) Parties wishing to have an amicable dispute resolution conference send a joint request to the court office of the youth division in the district with jurisdiction, by filling out and signing the form entitled Joint Request for a Settlement Conference in a Youth Protection Case , so that the conference can be set up.
b) If a party wishes to propose an amicable dispute resolution conference without consulting the other parties, it may do so by writing the youth division of the courthouse concerned.
c) The court office notifies the coordinating judge, who evaluates the request. If the coordinating judge considers such a conference appropriate, he or she sets the date for the conference before the conciliating judge and takes the necessary steps to ensure that the parties are notified.
d) Furthermore, a judge presiding over a hearing on provisional measures (sections 76.1 and 79) can inform the parties of the possibility of holding an amicable dispute resolution conference before the hearing on the merits, if the case meets the accepted selection criteria.
e) However, at no time may an amicable dispute resolution conference delay the judicial process by extending the time periods provided for by law.
f) An amicable dispute resolution conference is free of charge for all the parties. However, parties that are not eligible for legal aid and their attorneys must agree on the attorneys' fees.
a) An amicable dispute resolution conference is held behind closed doors and the discussions are not recorded.
An amicable dispute resolution conference is confidential and the judge's notes are all destroyed when it is over, preferably in the parties' presence.
c) If the parties must go to trial, the conciliating judge may never discuss the case with the adjudicating judge.
d) The parties and third parties participating in an amicable dispute resolution conference are asked to sign a confidentiality agreement when the conference begins.
e) However, confidentiality is relative since the protection of the child and the public may require that it be lifted for discussions during the conference, particularly if another reason is revealed for believing that the security or development of the child is in danger, or if information regarding the commission of a criminal offence is disclosed.
a) An amicable dispute resolution conference session is limited to three hours. An additional session can be held if justified by the case.
a) A judge who presides over an amicable dispute resolution conference does not wear a robe.
b) The judge ensures that the conference is held in a friendly atmosphere conducive to discussions.
c) A judge assigned to an amicable dispute resolution conference is asked to summon the attorneys and non-represented parties to a preparatory telephone conference prior to the amicable dispute resolution conference.
d) The telephone conference makes it possible to ensure that everyone involved will be present at the amicable dispute resolution conference, including any children, and that everyone is informed of the process and is prepared to take part in it. In addition, the role of each party and the required preparation are explained.
e) At the start of the meeting, the judge holding the conference explains to the parties the process and the established rules, including those they determine together.
f) The judge presiding over the session can meet with the parties separately if they agree to that.
g) The parties and their attorneys are responsible for writing the draft agreement. However, the conciliating judge is asked to read the draft agreement proposed to the parties, in order to ensure that they consent to it, before it is confirmed and becomes enforceable.
h) The judge who holds the amicable dispute resolution conference is the person who declares the child's security and development to be in danger and who confirms the parties'agreement and makes it enforceable.
i) The judge who holds an amicable dispute resolution conference cannot serve as the adjudicating judge if the parties decide to go to trial.
j) However, with the parties' consent, the judge can convert an amicable dispute resolution conference into a preparatory conference. The admissions and identification of the issues in dispute are then recorded in minutes signed by the parties and their attorneys.
Read more about settlement conference in youth protection cases.