


COURT OF APPEAL FOR ONTARIO

CITATION:
Ruffudeen-Coutts v. Coutts, 2012
    ONCA 65

DATE: 20120201

DOCKET: C53918







Feldman, Sharpe
          and Epstein JJ.A.



BETWEEN:



Aneesa
          Nadia Zamaludeen Ruffudeen-Coutts



Appellant
          (Moving Party)



and



Conrad
          Michael Coutts



Respondent
          (Responding Party)



Susan A.
          Metzler, for the appellant



Jodi L.
          Feldman, for the respondent



Heard: November
          24, 2011



On appeal from
          the order of Justice Peter Hambly of the Superior Court of Justice, dated May
          31, 2011.



Feldman J.A (Dissenting):

Introduction

[1]

This is an appeal from a judgment described as a consent
    judgment. The judgment dealt with custody and access to a two-year-old child.
    Under s. 133(a) of the
Courts of Justice Act
, R.S.O. 1990, c. C. 43, a
    consent judgment may be appealed with leave. The appellant mother seeks leave
    to appeal on the basis that her consent was given under duress by the comments 
    made by the motion judge, including his instruction to counsel before lunch to
    consider their positions if the residence of the child were changed from the
    mother to the father.

[2]

The requirement for leave was raised before another panel of this
    court. That panel did not decide whether the order was made on consent, noting
    that the record raised issues of whether there was true consent to the order.

[3]

There is a procedural question whether the appellants correct
    route to properly raise the duress issue is rather under rule 59.06(2) of the
Rules
    of Civil Procedure
by motion to set aside the order, brought with fresh
    evidence, before a judge of the Superior Court.

[4]

I would not approach the matter in that way. In my view, although
    part of the order was made on consent, it is clear from reading the record of
    the hearing as well as the reasons of the motion judge that the entire order
    was not on consent. At least one paragraph was not in accordance with what
    counsel for the wife believed had been agreed. More significantly, the motion
    judge added three paragraphs when he delivered his Reasons for Judgment, six
    days after the day of the motion when the order was agreed to. In those
    circumstances, leave is not required:
LeBlond v. LeBlond
, [1998] O.J.
    No. 287 (C.A.).

[5]

However, if the order is viewed as a consent order that requires
    leave I would grant leave on a question of law, allow the appeal and send the
    matter back to be reheard by another judge.

[6]

This is a custody matter where the sole issue before the motion
    judge was the best interests of the child. The motion judge erred in law by
    failing to fully consider the best interests of the child as the basis for his
    decision, focusing instead on his negative view of the conduct of the mother in
    the litigation. He removed the two-year-old child from the custody of the
    mother and granted joint custody and shared primary residence of the child to
    the mother and father in circumstances where the parties were seriously at odds
    and could not get along, a restraining order was in place, and the father had
    only had supervised access up to that point. This is contrary to the decision
    of this court in
Kaplanis v. Kaplanis
(2005), 249 D.L.R. (4th) 620
    (Ont. C.A.), which held that joint custody should not be ordered where the
    parties are unable to get along sufficiently to make decisions regarding the
    care of the child.

Facts

[7]

The appellant mother and respondent father were married on April
    29, 2006 and separated on November 23, 2010. They have one child, a boy, born
    May 15, 2009. The mother commenced divorce proceedings on December 15, 2010 and
    brought an emergency motion which resulted in a temporary consent order of
    December 22, 2010. That order provided for residence with the mother,
    supervised access to the father in the presence of either his brother or her
    brother, an order restraining direct communication between the parties, police
    assistance to enforce the order and return the child to the mother following
    access visits, the holding of the childs passport by counsel, dealings with
    the home and other corollary matters.

[8]

The mothers original affidavit alleged that she was the sole
    caregiver to the child, having taken off 14 months from her job as an
    accountant at a large accounting firm following his birth. She alleged that the
    father showed little interest in caring for the child, was abusive to her
    including yelling, swearing and throwing things at her, and that she feared for
    her safety and that of the child. Other affidavits were subsequently filed by
    her, by her brother, an executive at a large corporation, by the father, a
    senior employee with the City of Guelph, and by his brother, a lawyer. The
    father denied her allegations, claimed that she was keeping the child from him
    and said that he was a good father. The other affidavits gave support to each
    side and added to the original.

[9]

On March 2, 2010, the father brought a motion for unsupervised
    access to the child. That motion was heard on May 31, 2011. Again, the motion
    was for interim relief pending trial. For the purpose of trial, the parties had
    scheduled two days for cross-examinations on affidavits immediately following
    the motion. At issue on the motion were two matters, extending the access times
    of the father and the supervision issue, and second, whether an assessment of
    the child was required for the purposes of trial. Both parties were represented
    by counsel (not the counsel on the appeal) throughout.

[10]

Because the motion hearing was recorded, a transcript of the
    hearing forms part of the record before this court. That transcript discloses
    that the motion judge made it clear from the beginning that having read the
    record, he was upset with the way the mother had carried on the litigation
    including her allegations against the father and her emergency motion at
    Christmas time. He observed that her conduct suggested that her intent was to
    alienate the child from his father. Although the parties were not asking that
    the primary residence of the child be moved on an interim basis at that time,
    he suggested to the parties at the lunch break that they each determine what
    conditions they would seek if the primary residence of the child were changed
    to be with the father.

[11]

I set out the passage in full:


THE COURT: Well it is almost ten after one.

MS.
      KLODNER [the fathers lawyer]: All right.

THE
      COURT:  So lets adjourn for the luncheon break.

MS.
      KLODNER: Okay, thank you.

THE
      COURT: Come back at 2:25. And I want you, Ms. Klodner, to seek
      instructions that if primary residence is with your client, what involvement
      would he want the mother to have.

MS.
      KLODNER: All right.

THE
      COURT: And I want Mr. Buck [the mothers lawyer] to seek instructions if
      primary residence is with the father, what involvement she would want with the
      child. Times, dates and so forth.

MS.
      KLODNER: Thank you, Your Honour.


[12]

The parties and their counsel then had negotiations over an
    extended lunch period. Counsel for the mother asked for more time, saying that
    they had made some progress on resolution. The judge responded that Well you
    will resolve it with my approval.All right? I am the one that makes the order.
    So you will resolve it only with my approval.

[13]

After the parties came back to discuss what they had agreed to,
    they again needed more time to discuss the issues. The court was prepared to
    give more time, but told them that we have got to get this resolved today. A
    little time. And it is quarter to three and as I say I do not like keeping the
    staff beyond five.

[14]

The parties and counsel again went out to draft terms of an
    agreement. The judge told them he would not approve a police assistance order,
    which he felt was inappropriate in a child custody context. He made it clear
    that he believed parents should get along for the sake of the child.

[15]

When the parties returned, they had agreed to a final order for
    shared custody of the child, with the childs primary residence being one week
    with the mother, then one with the father. There was also an order for 12 hours
    access on the non-residential week. However, counsel disagreed on whether that
    was a final order or a trial order. The mothers counsel thought he had
    agreed to a trial order, while the fathers said they had agreed to a final
    order. The judge said he thought the word written was final and he made it
    final. The agreement also provided on a final basis that a third party may
    assist with the exchange of the residence of the child. The parties also agreed
    to attend a counsellor to work out a parenting plan and to come back to court
    if they could not agree. Other matters were agreed or left to be determined at
    a later time. The motion judge concluded by commending the parties for working
    it out after listening to me.

[16]

Six days later, the motion judge released Reasons for Judgment on
    the motion. In his reasons, the motion judge detailed the history of the matter
    as he saw it, both procedural and factual. His description makes clear his view
    that the wife and her counsel had overreached in bringing the original
    emergency motion and that the husband had not been represented by the lawyer of
    his choice when he consented to the terms of the original order. The motion
    judge found that there was no evidence taking the wifes case at its highest
    in her affidavit to support an order for supervised access to the child by the
    husband. This was after the husband had consented to the order which was
    approved by another motion judge at the time.

[17]

The motion judge was particularly incensed by an allegation by
    the mother in a later affidavit that she had seen the father change the babys
    diaper when he was two or three months old and fondle his penis causing an
    erection. The motion judge rejected the allegation as patently absurd and
    obviously false. He referred to the fact that the mother described the father
    as angry, aggressive, violent, lazy, bullying, vindictive and using vulgar
    language. In her affidavit she gave examples of these behaviours including
    throwing things at her and calling her a f b.... He concluded that she was
    exaggerating and making extreme unsubstantiated allegations which constituted
    evidence of attempting to alienate the father from the child.

[18]

The motion judge accepted the fathers plan of care involving
    members of his family who were in court and whom he found to be competent. The
    mothers brother had filed an affidavit based on his observations of the father
    with the child where he expressed negative views about him. The trial judge
    ruled that those opinions were inadmissible and struck the affidavit from the
    record. He further stated that although he would not order it, it was his view
    that given the hostility of the wifes brother to the husband, that he should
    not have involvement with the child.

[19]

I set out para. 10 of the reasons in full:


I
      told counsel that it was my view after spending considerable time reading the
      material and listening to their submissions, that the primary residence of the
      child should be with the father and the issue was whether the wifes
      involvement with the child should be supervised in a manner that would ensure
      that she did not attempt to alienate the child from the father. I also
      emphasized that the child was entitled to the involvement and support of both
      parents in his life as he grew up. After receiving my view, counsel asked for
      time to seek instructions from their clients, which I readily gave them. They
      eventually filed a consent to an order for shared custody of the child with the
      child residing with each in alternate weeks and with other arrangements which
      flow from this concept. I am prepared to sign an order to the terms of the
      consent and with the following additional paragraphs:

1.       Neither
      party shall criticize the other or speak adversely of the other in the presence
      of the child.

2.       Each
      party will take care to ensure that anyone assisting him or her in the care of
      the child shall not criticize or speak adversely of the other party in the
      presence of the child.

3.       The
      affidavit of Zamaludeen Ruffudeen [the mothers brother] sworn February 27,
      2011, is struck out and shall be removed from the Continuing Record.


Law

[20]

The
Courts of Justice Act
specifically addresses the issue
    of an appeal from a consent order and provides in s. 133(a):


133.
      No appeal lies without leave of the court to which the appeal is to be taken,

(a)
      from an order made with the consent of the parties .


[21]

In
LeBlond v. LeBlond
, a decision of Austen J.A. sitting
    in Chambers, counsel for the respondent on the motion took the position that
    part of the order sought to be appealed was made on consent and required leave
    under s. 133(a). Austen J.A. rejected the concept that a judgment could be
    divided with part requiring leave and part not. He went on to hold that in that
    circumstance no leave was required, stating: [a]lthough by far the greater
    part of the judgment was on consent, I treat none of it as requiring leave to
    appeal (para. 29).

[22]

This was also a case where part of the order was made on consent,
    while part was not, as I outlined above. There is certainly precedent in such
    circumstances to not require leave to appeal.

[23]

However, if the order under appeal is a consent order that
    requires leave to appeal, I would grant leave on the basis that the motion
    judge made an error of law by failing to fully consider the best interests of
    the child, which is always required, including when the order is on consent. I
    would also allow the appeal on that basis and order a new hearing.

[24]

In
Kaplanis v. Kaplanis
, this court reversed a decision
    made by a trial judge following trial which granted joint custody of a child
    and ordered the parents to attend counselling to improve their parenting skills
    with the counsellor to make decisions for the child if the parents were unable
    to agree.

[25]

Weiler J.A. began her analysis by stating the most fundamental
    principle of child custody law:

As
    in any custody case, the sole issue before the trial judge was the best
    interests of the child. (para. 10)

[26]

This statement accords with the statutory requirement of both s.
    24 of the
Childrens Law Reform Act
, R.S.O. 1990, c C.12, and s.16(8)
    of the
Divorce Act
, R.S.C. 1985, c. 3 (2nd Supp.). Nor does the
    consent of the parties reduce the judges obligation to ensure that the order
    made is in the best interests of the child.
[1]

[27]

Weiler J.A. stated, at para. 2:


I
      would agree with the mother that the order of joint custody should be set aside
      on the grounds that the trial judge erred in principle in awarding joint
      custody (a) where there was no evidence of historical co-operation and
      appropriate communication between the parents, and (b) in the hope that it
      would improve the parenting skills of the parties.


[28]

Although no two cases are exactly alike, there are some
    similarities with this case. In particular, in that case the trial judge
    discounted the evidence of a neighbour who witnessed a screaming incident when
    the father came to pick up the child for access. The trial judge saw it as an
    attempt, on the part of the wife, to buttress her claim for sole custody, and
    went on to express her hope  that the parents will put closure on the
    disappointment and resentments that flow from their failed marriage (quoted at
    para. 7).

[29]

Weiler J.A. went on to find that where the parties have trouble
    communicating, before a joint custody order can be made there must be some
    evidence that the parties will be able to have effective communication,
    especially where the child is young and cannot communicate his or her own
    needs. For the same reason, expert evidence regarding the childs psychological
    and emotional needs may be necessary to assist the court where a joint custody
    plan is proposed in such circumstances.

Application to this Case

[30]

In my view, the record discloses that the motion judge in this
    case was focused on his perception that the mother was trying to alienate the
    child from the father, and did not consider the best interests of the child as
    required by the statutes and as discussed by Weiler J.A. in the
Kaplanis
case.

[31]

The parties were before the court on an interim motion to
    determine revised access terms for the father pending trial and whether an
    expert assessment was needed. It was the father who wanted the assessment. None
    of the evidence had been tested by cross-examination. The parties had two days
    set aside for cross-examinations on the affidavits, the contents of which
    concerned the trial judge. The evidence was clear that they were not
    communicating. The existing order contained a clause that provided for police
    involvement in transferring the child following access visits to the father.
    The child had never spent a night with the father alone.

[32]

When the motion judge suggested that he was considering switching
    the residence of the child from the mother to the father, the parties with
    their counsel negotiated not an interim, but a final custody arrangement which
    the trial judge ultimately approved with some later additions.

[33]

In my view, on the record before him, the motion judge erred in
    principle by approving the final arrangement reached by the parties in these
    circumstances, as it was not in the best interests of the child. Not only was
    the joint custody arrangement contrary to principles discussed by Weiler J.A.
    in
Kaplanis
,
but as the order is a final order, there was no
    transition period, or opportunity to come back to court once the new situation
    had been in place for a period of time in order to see whether it was working.

[34]

Obviously it is important that separating parents be encouraged
    to come to agreed arrangements regarding the custody of their children, without
    a trial or extensive court involvement. In t
he majority
    of cases, this can be achieved by agreement. However in this case, the parties
    were clearly at war, they were making serious allegations against each other
    that could affect the well-being of the very young child, and they required
    third party involvement in order to deal with each other. In those
    circumstances, the courts obligation to ensure that the agreement reached was
    in the best interests of the child required at least testing the evidence and
    possibly expert involvement before making a final order.

Result

[35]

For the above reasons, I would grant leave to appeal (if
    necessary), allow the appeal, set aside the final order for joint custody and
    order a new hearing regarding interim custody arrangements for the child within
    the next two weeks. At that time, the parties with their counsel and the court
    can determine what further evidence is required for an interim and final order
    to be made.

[36]

I would order the costs of appeal and the motion for leave to the
    appellant fixed at $8,000 inclusive of disbursements and H.S.T.

Signed:        K. Feldman J.A.


Epstein J.A.:


A.

Factual background


[37]

The parties were married in 2006 and separated in 2010.  Ethan is
    the only child of the marriage.

[38]

On December 15, 2010, Ms. Ruffudeen-Coutts brought an application
    for a divorce, sole custody of Ethan with only supervised access by Mr. Coutts,
    child support, and other relief unrelated to the issues before this court. Mr.
    Coutts brought a counter-motion seeking shared custody.

[39]

A few days later, on December 22, 2010, Ms. Ruffudeen-Coutts
    brought a motion on an urgent basis for a temporary order for sole custody of
    Ethan with access to Mr. Coutts on a supervised basis, exclusive possession of
    the matrimonial home and a restraining order against Mr. Coutts.  Negotiations
    resulted in a temporary agreement whereby Ethan would reside with Ms. Ruffudeen-Coutts
    and Mr. Coutts would have supervised access at specified times.  As well, Mr.
    Coutts would be subject to a restraining order.  This agreement was reflected
    in a consent order endorsed that day.

[40]

On March 2, 2011, Mr. Coutts brought a motion on an urgent basis
    for a change in access and the return of his passport, which was, along with
    the passports of both Ms. Ruffudeen-Coutts and Ethan, being held by counsel
    pursuant to an earlier consent order made on December 22, 2010.  Ms. Ruffudeen-Coutts
    brought a cross-motion for contempt based on allegations that Mr. Coutts was
    not cooperating with efforts to sell the matrimonial home. Again, the parties
    were able to negotiate a settlement. Their agreement dealt with all issues then
    in dispute except for Mr. Coutts access to the child, certain child care
    expenses and an assessment requested by Mr. Coutts under s. 30 of the
Childrens
    Law Reform Act
, R.S.O. 1990, c. C.12.

[41]

These motions were adjourned and the unresolved issues came
    before Hambly J. on May 31, 2011.

[42]

At the hearing, both parties were represented by counsel. During
    the proceeding, counsel for Ms. Ruffudeen-Coutts requested time to seek
    instructions from his client with a view to a possible resolution. After a
    short break, the parties advised that they had reached an agreement, the
    essence of which provided that custody and support of the child would be shared
    and that there would be no spousal support.  Minutes of Settlement were signed
    and presented to the motion judge who indicated that he would grant an order in
    accordance with the consent of the parties.

[43]

Oddly, on his own initiative, the motion judge returned to the
    matter a week later and wrote reasons in which he purported to explain his
    willingness to endorse the consent.  But he did not stop there. He went further
    and suggested the addition of three terms to the order. These terms, peripheral
    to the issues of importance to the parties, provided for prohibitions against
    the parties criticizing each other, or allowing others to criticize them in
    front of their son, and for the removal of Ms. Ruffudeen-Coutts brothers
    affidavit from the record.

[44]

Ultimately, the order that was issued and entered dealt with all
    unresolved matters between the parties, on a final basis. It contained the three
    additional terms that the motion judge had proposed to the parties.

[45]

On June 15, 2011, Ms. Ruffudeen-Coutts appealed the order on the
    basis that during the hearing the motion judge had made a number of serious
    erroneous comments regarding her conduct.  Her submission is that the judges
    treatment of her placed her under duress such that her decision to consent to
    the order could not and did not amount to consent in law.

[46]

Mr. Coutts brought a motion to quash the appeal on the grounds
    that the order was on consent and Ms. Ruffudeen-Coutts had not sought or been
    granted leave to appeal the order.  Mr. Coutts relied on s.133(a) of the
Courts
    of Justice Act
, R.S.O. 1990, c. C.43, which provides that a consent order
    may only be appealed with the leave of the court to which the appeal is
    taken.

[47]

The leave requirement was the only issue considered by the panel
    that heard the motion to quash on November 15, 2011.  The motion was
    dismissed.  In a brief endorsement MacPherson J.A. explained the panels
    reasoning:


We are of the view that, because this was a consent order,
      leave to appeal to this court needed to be sought. Through inadvertence, the
      proper leave materials were not prepared and are not before us today. However,
      a reading of the record before Hambly J. does raise issues of whether there was
      consent to the order. The appeal is scheduled to be heard on November 24, 2011.

The motion to quash is dismissed. The appellant must prepare a
      proper record for leave to appeal for the panel hearing the matter next week.
      It will be for the panel to determine how the leave/merits hearing(s) will
      proceed.


[48]

Ms. Ruffudeen-Coutts has now provided the court with material
    upon which to determine the matter of leave.  However, her assertion that she
    was under duress at the time she entered into the agreement that formed the
    foundation of the order is not supported by any affidavit evidence from either
    her or her counsel on the motion before Hambly J.


B.

Whether Leave to Appeal Should be Granted

(1)

Was there consent to the
      order and therefore is leave to appeal

required?


[49]

Before dealing with whether leave to appeal ought to be granted,
    it is necessary to address whether the order under appeal is, in fact, a
    consent order. Counsel for Ms. Ruffudeen-Coutts urges this court to hold that
    it is not.

[50]

Despite the unusual background of this matter, particularly the inclusion
    in the order of the three additional terms, the order, in my view, is a consent
    order.

[51]

First, since this issue has already been decided by a panel of
    this court, in my view, it is not open to us to revisit the matter. However, as
    the matter was fully argued before us, I would add the following points.

[52]

The order under appeal that the parties approved and that was
    issued and entered by the court is specifically identified on its face as being
    on consent.

[53]

While all of the claims were for temporary relief, the motion
    judge justified making a final order on the basis that the parties consented.

[54]

As previously mentioned, the additional terms concerned
    peripheral matters relating to civility and the status of a piece of affidavit
    evidence. They did not alter the nature of the order that Ms. Ruffudeen-Coutts
    is seeking to appeal.

[55]

Finally, it is significant that the motion judge indicated he was
    
prepared
to sign an order on the terms of consent with the additional
    paragraphs, and provided counsel with the opportunity to make further
    submissions on the matter, either in writing or in person, if necessary
    [Emphasis added.]. The significance is that, given there is nothing in the
    record to suggest otherwise, the inference can be drawn that they consented to
    the inclusion of these terms.

[56]

Given my conclusion that the impugned order is on consent, Ms. Ruffudeen-Coutts
    requires leave to appeal.


(2)

Should leave to appeal be granted?


[57]

I now turn to whether leave ought to be granted and, necessarily,
    the test for leave to appeal a consent order.

The Test

[58]

I begin with the observation that s. 133(a) of the
Courts of
    Justice Act
does not specify grounds for granting leave to appeal a
    consent order.

[59]

A review of the limited jurisprudence respecting leave to appeal
    consent orders, in Ontario and elsewhere in Canada, reveals that no clear test
    has emerged for granting leave in consent matters. However, what is clear is
    the resistance to allowing a review of issues that the parties have represented
    to the court as having been resolved. The expression of this resistance dates
    back to 1876, in the English case of
Holt v. Jesse
, 3 Ch.D. 177, at p. 184:


That is tantamount to giving a general license to parties to
      come to this Court and deliberately to give their consent, and afterwards at
      their will and pleasure come and undo what they did inside the court, because
      on a future day they find they do not like it.



[60]

See also
Nguyen v. Nguyen
, 1999 CarswellOnt 2668 (S.C.);
Fott v. Fott
, 2001 ABQB 327, at paras. 4, 22, and 33.

[61]

Some assistance in determining when leave to appeal a consent
    order should be granted can be found in Donald Browns
Civil Appeals
,
    looseleaf  (Toronto: Canvasback Publishing, 2009) at p. 4-60:


In all jurisdictions, leave to appeal is required from an order
      made on consent, in some instances to be given by the judge or court making the
      consent judgment.  The underlying rationale for requiring leave would appear to
      be that a consent order is a contract of the most formal nature, made in the
      context of adversarial judicial proceedings.  Accordingly, apart from orders
      dealing with the custody of child (such as a consent adoption order), the same
      principles applicable to contracts are applied, and leave to appeal is unlikely
      to be granted unless the consent judgment was obtained by fraud, duress,
      mistake, or some other vitiating circumstance. [Citations omitted.]


[62]

In this passage, the author makes two points that are relevant to
    this case.

[63]

First, he observes that consent orders have their foundation in contract.
    It follows that they may be appealed on the basis that the circumstances
    surrounding the consent were such that there was no enforceable agreement. This
    engages standard contract principles: see
Rick v. Brandsema
, 2009 SCC
    10, 1 S.C.R. 295, at para. 64;
McCowan

v. McCowan
(1995), 24 O.R.
    No. 2245, at p. 712.

[64]

It follows that in cases where the issue relates to the validity
    of consent, leave to appeal should not be granted unless the evidence before
    the court on the leave application demonstrates that there is an arguable case
    that, at the time the agreement that formed the basis of the consent order was
    entered into, the moving party could not or did not consent.  Such evidence may
    relate to factors that may undermine the enforceability of contracts, such as fraud,
    duress, or undue influence.

[65]

The second point Brown makes is that matters involving children
    fall into a special category.

[66]

The distinction is clearly based on the courts obligation to
    give priority to the best interests of the child: see
Childrens Law Reform
    Act
, R.S.O. 1990, c. C.12, ss. 19 and 24;
Family Law Act
, R.S.O.
    1990, c. F.3, s. 56;
Divorce Act
, R.S.C. 1985, c. 3 (2nd Supp.), s.
    16(8); see also
M.A. v. C.P.
, 2010 ONSC 5481, 98 R.F.L. (6th) 434.

[67]

This priority is reflected in the general statutory provisions
    listed above. In addition, s. 21(2) of the
Childrens Law Reform Act
requires a judge, before granting a consent order involving custody or access,
    to receive a parenting affidavit that includes the partys proposed plan for
    the childs care and upbringing, information respecting the persons
    involvement in other family proceedings or any criminal proceedings, and any
    other information known to the person that is relevant to the factors to be
    considered by the court under subsection 24 (2), (3) and (4) in determining the
    best interests of the child. Further, s. 67.(1) of the
Childrens Law
    Reform Act
requires the court to bear in mind the best interests of the
    child in making an order on consent.

And both s. 37 of the
Family
    Law Act
and s. 15.1(7) of the
Divorce Act
provide that in the face
    of the parties consent, a court may only award an amount for child support
    that departs from the child support guidelines if it is satisfied that
    reasonable arrangements have been made for the support of the child to whom the
    order relates. A judge who is satisfied of the applicable requirements is
    entitled to endorse the parties consent through formal court order.

[68]

Before articulating the test that applies for granting leave to
    appeal that, in my view, applies to consent orders involving children, I make
    the following three observations.

[69]

First, while consent orders are not ordinarily accompanied by
    reasons, in cases involving children, the statutory requirements I have
    referred to above demonstrate that the judges determination should attract
    deference.

[70]

Second, finality itself has been recognized as being in the best
    interests of the child, as was emphasized by the Supreme Court in
Van de
    Perre v. Edwards
, 2001 SCC 60, 2 S.C.R. 1014, at para. 13:


[F]inality is not merely a social interest; rather, it is
      particularly important for the parties and children involved in custodial
      disputes. A child should not be unsure of his or her home for four years, as in
      this case. Finality is a significant consideration in child custody cases,
      maybe more so than in support cases, and reinforces deference to the trial
      judges decision.


[71]

Third, family law practice and procedure encourages parties to
    come to an agreement on as many issues as possible. As a consequence, consent orders
    are regularly granted.  Routinely allowing such orders to be appealed simply
    because they deal with issues pertaining to children would have the wholly
    undesirable effect of providing yet another route to prolonged litigation in
    family law matters.

[72]

Accordingly, while cases in which leave to appeal consent orders
    involving children must be treated differently, the threshold for obtaining
    leave is still high.

[73]

In my view, leave to appeal consent orders in family law cases
    involving children should not be granted unless, bearing in mind the deference
    I have identified, the record demonstrates an arguable case that the order, at
    the time it was made, was not in the child(ren)s best interests.

The Test as Applied to this
    Case

[74]

In her factum on the motion for leave, Ms. Ruffudeen-Coutts submits
    that the motion judge failed, in various respects, to consider Ethans best
    interests.  However, there is nothing in the record that supports the
    conclusion that the judge did not honour his statutory obligations.  Indeed, he
    actually wrote reasons explaining why he supported the parents settlement as
    being in Ethans best interests.  It is also worth noting that the order in
    this case was for shared custody, which on its face, is consistent with the
    maximum contact principle articulated in s. 16(10) of the
Divorce Act
.

[75]

Of course, in a family law case where no concern is raised about
    the best interests of the children, a party may still be granted leave on the
    basis of the test applicable to civil cases generally, where principles of contract
    law that potentially undermine consent are engaged.

[76]

This takes us to the real ground raised in Ms. Ruffudeen-Coutts
    leave application: her submission that when she entered into the agreement she
    was under duress. As previously noted, no evidence has been tendered to support
    that argument. While I find
    certain passages in the transcript of the hearing before the motion judge
    troubling, Ms. Ruffudeen-Coutts has provided no evidence as to how or why this
    treatment of her affected her ability to enter into the agreement that formed
    the basis of the consent order.  Ms. Ruffudeen-Coutts was represented by
    counsel yet there is no evidence to suggest that her counsel rendered
    ineffective advice or assistance. Nor is there any evidence from counsel about
    how, if at all, Ms. Ruffudeen-Coutts was affected by the conduct of the
    presiding judge. In the end, we are left with this: Ms. Ruffudeen-Coutts, with
    the assistance of legal counsel, agreed to settle the case and the motion judge
    made his order on the basis of her consent.


C.

Conclusion and Disposition


[77]

In my view, on this record, Ms. Ruffudeen-Coutts assertion of
    duress is doomed to virtually certain failure and accordingly, I would refuse
    to grant leave to appeal. I would invite counsel to make submissions as to
    costs within ten days of the release of these reasons.

[78]

However, as counsel for the respondent conceded in oral argument,
    Ms. Ruffudeen-Coutts is not left without an opportunity to address her
    concerns of duress upon a proper record and in the appropriate forum.  I would
    dismiss her application for leave to appeal without prejudice to her bringing a
    motion under rule 59.06(2) of the
Rules of Civil Procedure
, R.R.O.
    1990, Reg. 194 that allows a party to bring a motion to set aside the order on
    the ground of facts arising or discovered after the order was made.

[79]

Given the circumstances surrounding the order that Ms.
    Ruffudeen-Coutts alleges contributed to her duress, if brought, a motion under
    rule 59.06 should be heard by a judge of the Superior Court other than Hambly
    J.

Signed:        G. J. Epstein J.A.

I agree Robert J. Sharpe J.A.

Released: KF FEBRUARY 1, 2012





[1]
For example, both the
Family Law Act
, R.S.O. 1990 c.F.3 at s. 37(2.5)
    and the
Divorce Act,
R.S.C. 1985, c. 3 (2nd Supp.) at s. 15.1(7)
    provide that in the face of the parties consent, a court may only award an
    amount for child support that departs from the
Child Support Guidelines
,
    O. Reg. 391/97, if the court is satisfied that, (a) reasonable arrangements
    have been made for the support of the child to whom the order relates.


