



COURT OF APPEAL
    FOR ONTARIO

CITATION: Richardson v. Richardson, 2019 ONCA 983

DATE: 20191213

DOCKET: C66918

Rouleau, Huscroft and Nordheimer JJ.A.

BETWEEN

Mark Edward Richardson

Applicant (Respondent)

and

Sylvia H.C.C. Richardson

Respondent (Appellant)

Jenna Beaton and Deborah Perkins-Leitman, for the
    appellant

Michael Zalev and Samantha Eisen, for the respondent, for the respondent

Heard: October 16, 2019

On appeal from the order of Justice James Ramsay of the
    Superior Court of Justice, dated April 8, 2019, and from the costs order, dated
    April 25, 2019, with reasons reported at 2019 ONSC 2601.

Rouleau and Huscroft JJ.A.:

A.

OVERVIEW

[1]

This is an appeal from the orders of the trial judge varying the terms
    of a previous custody and access order, and awarding costs to the respondent.
    The trial judge ordered that the childrens primary residence remain in the
    Niagara region with the respondent and gave him final decision-making
    responsibility.

[2]

Unusually, this appeal concerns not only the trial judges ultimate
    decision, but also his decision to hear and decide the case at all. That is so
    because during the course of the trial, the parties negotiated Minutes of Settlement
    (the proposed settlement) which, if accepted by the court, would have resolved
    their dispute. The proposed settlement provided that the children would move
    from their home in the Niagara region to live primarily with the appellant in
    Ottawa. The agreement that the children move to Ottawa was, however, subject to
    a number of conditions, including that the respondent would be responsible for
    making final decisions concerning the children. Had the trial judge accepted the
    proposed settlement, there would have been no need to complete the trial, and
    no trial decision to appeal.

[3]

But the trial judge refused to accept the parties proposed settlement
    and gave no reasons for doing so. The parties went on to complete the trial,
    and the trial judge found that it was in the best interests of the children for
    their primary residence to remain with the respondent in the Niagara region,
    and varied the terms of the order in his favour accordingly.

[4]

The appellant appeals, arguing that the trial judges refusal to accept
    the parties proposed settlement was contrary to the best interests of the
    children, the principles of fundamental justice, and is indicative of bias. She
    also appeals from the trial judges decision to award costs to the respondent
    in the amount of $40,000.

[5]

We conclude that the trial judge had the authority to reject the proposed
    settlement if he found that it was not in the best interests of the children.
    Although he erred in failing to provide reasons for his decision to reject the
    proposed settlement, there is no basis for this court to interfere with the
    decision the trial judge reached following trial. The findings he made confirm
    that the custody and access order he made was in the best interests of the
    children. Accordingly, we dismiss the appeal, other than to vary the costs
    order.

B.

BACKGROUND

[6]

Sylvia Richardson (the appellant) and Mark Richardson (the respondent)
    were married on August 3, 2003. They separated in 2012 and divorced in 2015.
    Both parties have since remarried.

[7]

They have two children: a daughter (currently 14 years old) and a son
    (currently 8 years old).

[8]

In 2015, the parties consented to participate in an assessment pursuant
    to s. 30 of the
Childrens Law Reform Act
,
    R.S.O. 1990, c. C.12. The appellant was seeking to have the children move with
    her to Ottawa, where she planned to relocate. The assessor, however, agreed
    with the respondent and recommended that the children stay in the Niagara region
    and that the parties have joint custody. The parties accepted this
    recommendation and settled the matter. The settlement was accepted by Carpenter-Gunn
    J., and a consent order dated June 14, 2016 was issued on these terms.

[9]

In 2016, both parties had residences in the Niagara region. However, the
    appellant was then dividing her time between the Niagara region and the Ottawa
    area, where she maintained a residence with her new spouse.

[10]

In July 2017, the appellant was appointed as a Justice of the Peace in
    the Ottawa region, moved to Ottawa as planned, and sold her Niagara residence.
    She brought a motion to change the consent order on the basis that it would be
    in the children's best interests to reside primarily with her in Ottawa. The
    parties could not settle the matter and it proceeded to trial on April 1, 2019.

C.

THE REJECTION OF THE PROPOSED
    SETTLEMENT

[11]

On the second day of the trial, the parties' counsel advised the trial
    judge that they were attempting to negotiate a settlement. The trial judge
    granted the parties an adjournment to negotiate, but informed them that the
    trial would have to proceed the following morning, regardless of whether
    negotiations were continuing.

[12]

The following morning, April 3, 2019, counsel for the parties presented the
    proposed settlement to the trial judge. Among other things, the proposed settlement
    provided that the children would move from their home with the respondent in
    the Niagara region to Ottawa, where they would live with the appellant.
    However, the proposed settlement also provided that the respondent would have
    final decision-making authority concerning the children.

[13]

The trial judge reviewed the proposed settlement but refused to approve it.
    The following exchange occurred:

THE COURT: Thank you for giving me a copy of the minutes of settlement.
    I have read them. I do not accept them. You may call your next witness. I'm not
    prepared to sign off on it so let's carry on. And I can't really say why. I
    just have to hear all the evidence. Do you want a few minutes?

[Counsel]: Yes, sir.

THE COURT: Yeah. I'll be back in
    10 minutes.

[14]

Counsel did not seek any clarification and raised no objection to the
    trial judges decision to reject the proposed settlement and continue with the
    trial. The trial resumed following a short break and continued to its
    conclusion the next day.

[15]

The trial judge released his decision on April 8, 2019, denying the
    appellants requested change and largely accepting the respondents proposal.

D.

THE TRIAL JUDGES DECISION ON THE
    MERITS

[16]

The trial judge found that the growth of the children did not constitute
    a change of circumstance that was unforeseen when the original custody and
    access order was made. Although the daughters expressed wish to attend high
    school in Ottawa could constitute a change in circumstances, the trial judge
    found that the appellant failed to meet her burden to establish that it did,
    noting that the daughter had expressed different wishes at various times over
    the years.

[17]

The trial judge found that the respondent was essentially credible but
    expressed concerns about the appellants credibility and motivations. He
    considered it unreasonable of her to think that the children could share
    residence between parents who lived so far apart, and found that she had made
    demands the respondent could not possibly meet. The trial judge described the
    appellants attempt to justify some of her actions as baffling and stated
    that her strong desire to win seems to have clouded her judgment.

[18]

The trial judge detailed several incidents that concerned him. He was
    particularly concerned with the appellants decision to ask the police to carry
    out a welfare check when the children were with the respondent and her
    involvement of the Childrens Aid Society without having any legitimate basis
    for doing so.

[19]

The most important finding made by the trial judge concerned the
    daughter and her expressed wish to move to Ottawa. The trial judge found that
    this wish arose primarily out of the parental conflict rather than from
    independent considerations. He found, further, that her real wish was to end
    the conflict between her parents, and that she understood  correctly in the
    trial judges view  that the appellant was the source of the conflict. As a
    result, the trial judge concluded that the appellant had not established that
    there had been a change in circumstances and dismissed her motion.

[20]

The trial judge then considered the respondents request for changes to
    the schedule established in the 2016 order. He found that the respondent had
    established a change in circumstances: the appellants move had made equal
    sharing impractical; the children had undergone too many tiring trips; and they
    had missed too much school. The trial judge described the respondent as
    essentially under siege, which had weakened his ability to fulfil the needs
    of the children.

[21]

The trial judge conducted a fresh inquiry into the best interests of the
    children, concluding that their principal residence in the Niagara region
    should not change. The children had lived in the Niagara region since birth;
    they were physically and emotionally close to their paternal relatives, who also
    reside in the region; they were well established at school and with friends;
    and they were doing well academically. The trial judge found that school had
    become the daughters refuge from family conflict and that it would be a bad
    time to uproot her.

[22]

In summary, the trial judge concluded that a move to Ottawa was not in
    the best interests of the children, but that a change to the access schedule
    was. He adopted more or less the respondents draft proposal. The children
    would remain in the Niagara region. Their primary residence would be with the
    respondent. However, the trial judge made several amendments to the
    respondents draft proposal, namely in the provision for time sharing so as to reduce
    travel. This had the effect of reducing the appellants access to the children.

[23]

The trial judge awarded the respondent costs in the amount of $40,000,
    which he characterized as an amount that would have reasonably been
    contemplated for almost full indemnity.

E.

DISCUSSION

[24]

The thrust of the appellants argument concerns the trial judges
    rejection of the proposed settlement. The appellant says that the trial judge
    erred in rejecting the proposed settlement, in failing to give reasons for
    rejecting the proposed settlement, and in hearing the trial rather than
    recusing himself after having rejected the proposed settlement. As a result of
    these errors, she submits, the trial judges decision cannot stand. In response
    to a question from the bench, the appellant confirmed that she would not
    directly address the merits of the trial judges reasons for the order he made.

(1)

The rejection of the proposed settlement

[25]

There is no dispute about the importance of settlements in family law. Settlements
    are to be promoted and encouraged, as our colleague Nordheimer J.A. explains.

[26]

Nevertheless, it is well established that judges have the authority to
    review settlements and to reject them if they are not in the best interests of
    the children:
Martin v. Martin
, 1981 CarswellBC 773 (C.A.), at para. 7;
C.T.G. v. R.R.G.
, 2016 SKQB 387, 86 R.F.L. (7th) 312, at para. 11; and
Harper v. Harper
(1991), 78 D.L.R. (4th) 548 (Ont. Gen. Div.), at p.
    553. This authority must be exercised with caution. Mere disagreement with the
    terms of a settlement affords no basis for courts to intervene: see e.g.,
F.J.V.
    v. W.K.S.
, 2019 BCCA 67, 18 R.F.L. (8th) 255, at paras. 26, 29. Further,
    whether a settlement is in the childrens best interests should take into
    account more than just the settlement terms. It should also consider the
    general benefits to children that flow from parents resolving their disputes through
    compromise rather than litigation.

[27]

If a judge rejects a settlement, the reasons for rejecting the
    settlement should be provided. Moreover, if the judge does not take any steps
    to facilitate settlement  such as sending the parties away with some direction
    as to the aspects of the agreement that are of concern, or arranging a
    settlement conference either with him or her or with another judge  the reason
    for this should also be provided. Without explaining the basis upon which the
    parties settlement is rejected, the judge leaves the parties with no way of
    knowing, what, if anything, they could do to address the courts concerns. The
    concerns may have been of a nature that could be addressed, but in the absence
    of reasons the parties will have no opportunity to address them.

[28]

This said, the situation in this case is exceptional. The proposed settlement
    was reached and rejected in the midst of a short four-day trial. In such
    circumstances, reasons need to be carefully crafted, and could be very brief.
    This is to avoid the appearance that the judge prejudged the case, which would
    preclude the judge from continuing to hear the case. Depending on the judges
    concerns, the reasons may do little more than advise the parties that, at that
    stage of the proceeding, and without hearing the balance of the trial, he or
    she is not prepared to find that the settlement is in the best interests of the
    children. More complete reasons could then be provided at the end of the trial.

[29]

In short, the trial judges decision to continue the trial without
    providing reasons for rejecting the proposed settlement undermined the
    settlement process and the courts duty to help the parties settle their case:
Family
    Law Rules
, O. Reg. 114/99, r. 2(5)(c). But in our view, the findings of
    the trial judge, which were made after a full hearing on the merits and are not
    contested on appeal, make clear that sound bases exist for rejecting the proposed
    settlement.

[30]

The appellant also argues that the trial judge acted contrary to
Charter
values in rejecting the proposed settlement and that the rejection of the proposed
    settlement constitutes an infringement of the parties liberty that engaged s.
    7 of the
Canadian Charter of Rights and Freedoms
. In our view, these
    submissions are fundamentally misconceived and without merit. As Miller J.A. recently
    explained in
McKitty v. Hayani
,
2019 ONCA 805,
Charter
values and
Charter
rights are distinct juridical concepts that are subject
    to different rules governing their use in different contexts. The analysis
    required in this case depends on the best interests of the children, not
Charter
values or
Charter
rights.

[31]

To conclude on this point, we agree with the appellant that the trial
    judge should have provided reasons for his decision to reject the proposed
    settlement. However, it does not follow that the proposed settlement should now
    be accepted. What, if anything, flows from the trial judges error must be
    considered in light of the fact that the trial continued to completion and the
    trial judge made findings as to the best interests of the children. We turn now
    to that issue.

(2)

The appeal of the decision on the
    merits

[32]

The appellant argues that the trial judges error in rejecting the proposed
    settlement without reasons provides a basis for setting aside his trial
    decision on the merits. She contends, further, that having been privy to the proposed
    settlement, the trial judge was disqualified from hearing the case. Finally,
    she maintains that the rejection of the proposed settlement and her previous
    dealings with the trial judge created a reasonable apprehension of bias. In her
    view, this tainted the whole trial process that followed.

[33]

As we will explain, these arguments must be rejected.

(i)

The trial judge was not disqualified from continuing with the trial
    after he rejected the proposed settlement

[34]

The starting point in the analysis is r. 17(24) of the
Family Law Rules
, which provides that A judge
    who conducts a settlement conference about an issue shall not hear the issue.
    The only stated exception concerns child protection cases: r. 17(25). Moreover,
    settlement confidentiality is required by the rules. None of the material
    prepared for the settlement conference, the briefs, nor any statement made
    during the conference may be disclosed to any other judge, except where the
    statement or information is contained in an agreement that emanates from the
    conference or an order made thereafter: r. 17(23). See also r. 17(22), which
    specifies that case conference briefs do not form part of the continuing record
    and shall be returned to the parties or destroyed after the conference.

[35]

In this case, the trial judge did not conduct a settlement conference,
    and as a result r. 17(24) does not apply. Nor does r. 17(22) apply, as he was
    not privy to any case conference briefs. Accordingly, nothing in the
Family
    Law Rules
precluded the trial judge from hearing the matter. Nor did his
    knowledge of the proposed settlement require him to recuse himself of his own
    motion.

[36]

In our view, the parties at trial must be taken to have come to the same
    conclusion. Both parties were represented by counsel, and neither party objected
    to the trial judge proceeding with the trial after he rejected the proposed settlement.

[37]

This is no small matter. Counsel had several options once the trial
    judge rejected the proposed settlement. They could have sought an adjournment.
    They could have asked for reasons for his rejection of the proposed settlement.
    They could have asked the trial judge to recuse himself. Either party could
    have advised the trial judge that they wished to appeal the rejection and asked
    the trial judge to adjourn until after the appeal: see e.g.,
F.J.V.

[38]

They did none of these things.

[39]

The only conclusion possible in these circumstances is that counsel for
    both parties were content to proceed to trial, or at least willing to acquiesce
    in the trial judges decision to do so, after he rejected the proposed
    settlement. The trial judges decision to continue to hear the trial cannot now
    be impugned.

[40]

The appellants ineffective assistance of counsel allegation does not
    assist her.

[41]

Although ineffective assistance of counsel can be argued as a ground of
    appeal in civil as well as criminal cases, it is granted more rarely in civil
    contexts than criminal. Stratas J.A. canvasses the relevant considerations in
Mediatube
    Corp. v. Bell Canada
, 2018 FCA 127, 156 C.P.R. (4th) 289, at paras. 27-44.

[42]

The ineffective assistance of counsel argument was not pressed seriously
    in this case, nor could it be. Putting aside concerns about the adequacy and
    fairness of the procedure followed in raising this complaint, neither component
    of the test can be established on the facts of this case. There is no evidence
    that the alleged incompetent representation caused a miscarriage of justice 
    that the appellant was prejudiced as a result of the representation she
    received: see
Childrens Aid Society of the Regional Municipality of
    Waterloo v. C.T.
, 2017 ONCA 931, [2018] 4 C.N.L.R. 31, at para. 96, leave
    to appeal refused, [2018] S.C.C.A. No. 51. Nor is there any evidence that
    counsel provided incompetent representation  that counsels actions were
    unreasonable in the circumstances as they existed at that time:
R. v.
    Archer
(2005), 202 C.C.C. (3d) 60

(Ont. C.A.), at para. 119. In
    fact, there is no evidence as to the advice provided by counsel or the instructions
    given to counsel by the appellant.

[43]

In any event, we see no basis for concluding that the trial judges
    review of the proposed settlement compromised his ability to determine the
    matter at trial. The trial judge is presumed to be impartial and that
    presumption has not been rebutted.

[44]

Regardless of what he learned from reading the proposed settlement, the
    trial judge was required to reach a decision following trial as to the best
    interests of the children. We are satisfied that he did so, and again we
    emphasize that his reasons for so concluding are not directly challenged by the
    appellant. If anyones position was potentially undermined by the trial judges
    knowledge of the proposed settlement, it was the respondents. The respondents
    trial evidence was that the childrens best interests were served by their
    continued residence in the Niagara region but the trial judge now knew that,
    for whatever reason, he had agreed to allow the children to move to Ottawa, as
    advocated by the appellant. Yet, following trial of the matter, the trial judge
    reached the conclusion that it was in the best interests of the children to
    remain with the respondent in the Niagara region, rather than move to Ottawa
    with the appellant.

(ii)

There is no reasonable apprehension of bias

[45]

The appellant argues that the trial judges rejection of the proposed
    settlement demonstrates that he prejudged the central issue of where the
    children should reside.

[46]

We disagree.

[47]

As we have said, the trial judge was required to review the proposed settlement
    and to reject it if he concluded that it was not in the best interests of the
    children. His error lies in failing to provide reasons for rejecting the proposed
    settlement, but that error does not give rise to a reasonable apprehension of
    bias. It cannot be concluded, as the test in
Committee for Justice and
    Liberty et al. v.
National Energy Board
    et al.
, [1978]
    1 S.C.R. 369, at p. 394,
per
de Grandpré J. (dissenting)
requires, that an informed person, viewing the matter realistically and
    practically  and having thought the matter through  [w]ould  think that it is
    more likely than not that [the trial judge], whether consciously or
    unconsciously, would not decide fairly either because of his rejection of the proposed
    settlement or his failure to provide reasons for rejecting the proposed settlement.
    Moreover, as noted above, the trial judges knowledge of the proposed settlement
    could serve to undermine only the respondents position, not the appellants.

[48]

The appellant submits that her bias allegation is supported in part by the
    trial judges assessment of the evidence. She argues that his reasons
    demonstrate an uneven weighing of the evidence. We do not accept this argument.
    The trial judges reasons fully explain his assessment of each partys
    credibility and the contradictory evidence presented at trial. There is no
    basis for the appellants claim that his assessment of the evidence is indicative
    of bias.

[49]

Finally, there is no basis for the appellants suggestion that the trial
    judges prior dealings with her as a counsel  a matter about which no concern was
    raised by the parties when it was disclosed by the trial judge at the outset of
    the trial  support the existence of a reasonable apprehension of bias.

[50]

In summary, the appellant has not met her burden of establishing a
    reasonable apprehension of bias. In any event, it is far too late in the day to
    claim a reasonable apprehension of bias. It is well established that bias
    claims must be raised at the earliest practicable opportunity:
Canada
    (Human Rights Commission) v. Taylor
, [1990] 3 S.C.R. 892, at pp. 941-43,
    971-72, citing
Re Human Rights Tribunal and Atomic Energy of Canada Ltd.
,
    [1986] 1 F.C. 103 (C.A.). This rule not only avoids problems by affording the
    adjudicator an opportunity to determine the matter in a timely way, but also
    ensures that parties alleging bias do not seek to preserve appeal grounds in
    the event that they receive an unfavourable decision on the substantive matter
    in dispute. As we have noted, the appellants counsel was content to continue
    the trial after the trial judge rejected the proposed settlement. If the
    appellant wanted to raise a bias concern about the trial judge hearing the
    case, she had to raise it before the trial resumed and ran until its conclusion
     long before an unfavourable judgment was rendered.

(iii)

The trial judge made no errors in his decision on the merits that would permit
    this court to intervene

[51]

It is well established that the key consideration that should determine
    the outcome of this appeal is the best interests of the children, as the
Divorce Act
, R.S.C. 1985, c. 3 (2nd Supp.)
    makes plain. The best interests of the children is the only consideration
    relevant to deciding custody and access or their variation: see
Divorce Act
,

ss. 16(8), 17(5). In thorough reasons, the trial judge explained why it
    was in the childrens best interest that they continue to reside in the Niagara
    region. His decision is owed considerable deference on appeal and cannot be
    interfered with absent a material error, a serious misapprehension of the
    evidence, or an error of law:
Van de Perre v. Edwards
, 2001 SCC 60,
    [2001] 2 S.C.R. 1014, at paras. 11, 13;
Perron v. Perron
, 2012 ONCA
    811, 113 O.R. (3d) 600, at para. 25, leave to appeal refused, [2013] S.C.C.A.
    No. 26. As noted above, the appellant did not directly address the merits of
    the trial judges reasons. No error in the trial judges findings and
    conclusions regarding the childrens best interests has been identified.

[52]

The trial judge heard evidence from the parties and made findings of
    fact and credibility. He found that the respondent was essentially credible,
    but that the appellant was not. He found her point of view to be basically
    unreasonable, described some of her actions as baffling, and determined that
    her strong desire to win seems to have clouded her judgment. Those findings
    are entitled to deference, and the appellant has failed to establish any basis
    that would allow this court to interfere with them.

[53]

The trial judge concluded that it was in the childrens best interest
    that they remain in the community where they were born and raised, and enrolled
    in the schools they currently attend. The trial judge made no error in doing so.
    The best interests of the children require that the order be upheld and the
    appeal dismissed.

[54]

It remains open to the parties to seek a consent order varying the terms
    of the trial judges order, should they consider it appropriate to do so in
    light of their experience with the children since the trial judges order. There
    is, however, no basis for this court to intervene on appeal.

(3)

Fresh evidence

[55]

Both parties brought motions to tender fresh evidence addressing how the
    children have progressed since the trial decision. In light of our conclusion
    that the appeal ought to be dismissed, we would not admit the fresh evidence.
    Nothing contained in the fresh evidence raises any concerns as to the
    correctness of the trial judges order.

(4)

The costs appeal

[56]

The trial judge erred in principle in his costs order. There was no
    basis for the respondent to be awarded trial costs on an elevated scale. The
    appellant was entitled to seek a variation in the previous custody and access order
    and should not be punished for having done so. Her conduct was not worthy of
    sanction:
Net Connect Installation Inc. v. Mobile Zone Inc.
, 2017
    ONCA 766, 140 O.R. (3d) 77, at para. 8. While the appellant did not expressly
    seek leave to appeal the costs order, she did raise the issue of costs
    directly. We would grant leave in the circumstances and reduce the costs award
    to $30,000, inclusive of taxes and disbursements.

F.

CONCLUSION

[57]

The motion to admit fresh evidence and the appeal are dismissed.

[58]

The costs appeal is allowed. The costs order is set aside and an award
    of $30,000, inclusive of taxes and disbursements is substituted.

[59]

The parties bear their own costs of the appeal.

Paul
    Rouleau J.A. 

Grant
    Huscroft J.A.


Nordheimer J.A.:
    (Dissenting)

[60]

I have read the reasons of my
    colleagues and find myself unable to agree with their disposition of this
    appeal. In my view, the conduct of the trial judge with respect to his
    rejection of the parties settlement, without reasons, so tainted the conduct
    of the proceeding that his disposition cannot be allowed to stand. To do
    otherwise fundamentally undermines the need for court proceedings not only to
    be fairly conducted but, as importantly, be seen to have been fairly conducted.

[61]

I would allow the appeal and give
    effect to the Minutes of Settlement.

A.

The TRIAL JUDGE
    ERRED IN REJECTING THE SETTLEMENT WITHOUT REASONS

(1)

The Importance of Settlement

[62]

The importance of settlement in
    the overall litigation process cannot be overstated. It is especially so in the
    family law context. Indeed, the
Family Law Rules
, O. Reg. 114/99,
    directly provide that it is one of the ways in which the court promotes the
    primary objective. Rule 2(5) provides, in part:

The court shall promote the
    primary objective by active management of cases, which includes,



(b) encouraging and facilitating
    use of alternatives to the court process;

(c) helping the parties to settle
    all or part of the case[.]

[63]

The importance of settlement is
    heightened when dealing with children. A settlement brings closure to the
    matter. It helps the parties refocus on the childrens best interests. It ends
    (or at least reduces) the present conflict and leads the way for the
    non-litigious resolution of future disputes. Further, it may benefit the
    children in that they will, hopefully, understand that the arrangements were
    agreed upon by their parents, rather than imposed by a court. This point was
    made by Tysoe J.A. in
F.J.V. v. W.K.S.
, 2019 BCCA 67, 18 R.F.L. (8th)
    255, at para. 29:

It may not have been a perfect
    settlement, but as counsel for the respondent explained to the judge on January
    7, it is sometimes better to resolve most issues than none at all. A settlement
    of parenting issues does not have to be perfect in order for it to be in the
    best interests of the children.
The court must also consider the effects on
    the children of not having a settlement and, respectfully, the judge failed to
    consider those effects.
[Emphasis added.]

[64]

Parents also know their children
    in a way that no trial judge (or external assessor) possibly could.
    Consequently, when parents negotiate a settlement on parenting issues, a judge
    must have clear and compelling reasons to reject it. If present, those reasons
    must be articulated to the parties so that they will understand the concerns
    and have an opportunity to respond. There may be any number of facts, of which
    the judge is unaware, that would explain why the parties agreed to the terms of
    the settlement.

(2)

The Error of the Trial
    Judge

[65]

In this case, not only were there
    no clear and compelling reasons to reject the settlement, there were no reasons
    offered by the trial judge at all. The parties were left without any idea what
    terms of the settlement were of concern to the trial judge. It follows from
    that fact, of course, that the parties were not given the opportunity to
    explain to the trial judge why they agreed to the settlement, nor were they
    provided with the opportunity to provide additional evidence to allay any
    concerns that the trial judge may have had. They were also denied the
    opportunity to present a modified settlement agreement to the court that
    responded to any concerns that the trial judge had while preserving the many
    benefits of settlement.

[66]

In my view, my colleagues fail to
    give proper effect to what occurred through the way in which the trial judge
    dealt with the settlement. Simply put, there is neither excuse nor
    justification for the trial judges treatment of the settlement. If he was not
    prepared to approve it, he was required to tell the parties why and provide
    them with an opportunity to respond. The trial judges actions, in rejecting
    the settlement without explanation, fundamentally undermine the whole
    settlement process and its importance to the overall functioning of the
    litigation process, especially family litigation. His actions also deeply
    undercut the authority of the
Family Law Rules
, and of judges generally,
    in urging parties to resolve their disputes. For a judge to reject a settlement
    on parenting issues without explanation undermines one of the most important
    messages to the public in the context of family law: settling your dispute is
    in your childrens best interests.

[67]

Further, parties, both in the
    family law context and in civil proceedings generally, must be able to rely on
    the courts enforcing settlements freely reached so that they will have
    confidence that their efforts in pursuit of settlement are worthwhile. On this point,
    I would adopt the following observation of J. Mackinnon J. in
Quesnel v.
    Nadon-Quesnel
(2001), 24 R.F.L. (5th) 89 (Ont. S.C.), where she said, at
    para. 18:

First, there is a strong policy
    in favour of the parties settling their own affairs, if possible. The exchange
    of offers to settle is to be encouraged. Litigants need to know that the terms
    of an accepted offer will be binding and enforced by the court.

[68]

The respondent suggested that the
    trial judge may have been unwilling to give reasons for rejecting the
    settlement because his views on the settlement terms might, in some fashion,
    compromise his ongoing role as the trial judge. Indeed, my colleagues appear to
    implicitly adopt that possible explanation: at para. 28. They also appear to
    minimize the conduct of the trial judge by finding that the situation here was
    exceptional.

[69]

I do not accept any of that effort
    as justifying the trial judges actions. First, there is nothing exceptional
    about parties reaching a resolution of their dispute, either immediately before
    a trial starts, or after it has commenced. Experience demonstrates that many
    cases resolve at the courtroom door or soon after a trial commences. The
    immediacy of the moment does not excuse this judges handling of the
    settlement.

[70]

Second, and as I shall explain
    more fully below, given what occurred, the trial judge ought not to have
    continued to hear the trial and render a decision. His position as the trial
    judge was irretrievably compromised as a result of his knowledge of the terms of
    settlement to which the parties had agreed.

[71]

Third, even if one could accept
    that as the rationale for the trial judges actions, it does not explain why
    the trial judge did not provide reasons for rejecting the settlement when he
    rendered his decision after the trials conclusion.

B.

The trial judgment
    CANNOT STAND

[72]

As I have just said, in my view,
    the trial judge ought not to have continued with the trial once he became aware
    of the parties negotiated settlement. His knowledge of the terms of the
    settlement compromised the fundamental requirement that he decide the case
    based only on the evidence that he heard,
and that he be seen as having done
    so.

[73]

The primary objective of the
Family

Law

Rules
includes ensuring that the procedure is fair to all
    parties: r. 2(3)(a). In making that point, I am mindful of the fact that there
    are also other considerations that impact on the way in which a proceeding may
    be conducted including saving expense and time, dealing with a case in ways
    that are appropriate to its importance and complexity, and giving appropriate
    court resources to cases while taking account of the need to give resources to
    other cases: r. 2(3). All of these considerations have a role to play.

[74]

In my view, however, the trial
    judges decision to proceed with the trial, after rejecting the settlement, so
    fundamentally undermined the appearance of fairness to the parties that it
    cannot be salvaged by such other considerations.

[75]

I accept that courts have the
    power to remedy procedural flaws:
Rules of Civil Procedure
, R.R.O. 1990,
    Reg. 194, r. 2. I am also aware that trial judges are familiar with the concept
    of having to put aside evidence that they have heard, after concluding that it
    is inadmissible. We trust judges to do that. But those situations are the
    exception to the general rule that a judge, who is privy to resolution
    positions and discussions, ought not to then hear and determine the dispute
    that is in issue.

[76]

For example, the
Family Law Rules
reflect this general rule by incorporating an absolute prohibition against a
    judge, who has conducted a settlement conference, from hearing an issue that
    was the subject of the settlement conference. Rule 17(24) states: A judge who
    conducts a settlement conference about an issue shall not hear the issue,
    except as subrule (25) [an exception for child protection cases only]
    provides.

[77]

My colleagues say that r. 17(24)
    does not apply and thus there was nothing in the
Family Law Rules
that
    precluded the trial judge from hearing the matter: at para. 35. While
    technically correct, that conclusion ignores the clear principle that underlies
    r. 17(24) which is that a judge, who is privy to the settlement discussions of
    the parties, ought not to then hear and decide their dispute. The reason behind
    the principle is clear. It is so the parties can pursue settlement while having
    confidence that the judge will decide the issue on the evidence and not on any
    extraneous information such as what position one party or the other took when
    settlement was discussed. This court has held as much in the context of civil
    pre-trials:
Royal Bank of Canada v. Hussain
, 2016 ONCA 637, 133 O.R.
    (3d) 355, at para. 20.

[78]

My colleagues go further and say
    that Nor did his knowledge of the proposed settlement require him to recuse
    himself of his own motion.: para. 35. I disagree. In my view, a judge who has
    received, but rejects, a settlement agreement is in an analogous position to a
    judge who has participated in a settlement conference. This was not a case
    where the trial judge became aware of peripheral information relating to the
    dispute. Here, the trial judge knew of the agreement that the parties had
    reached on the central issue that he was to determine, that is, where the
    principal residence of the children would be. One cannot equate that knowledge
    with a trial judge becoming aware of a piece of extraneous information that
    ought not to have made its way into the trial process. Here the trial judges
    knowledge went to the core issue in dispute. There is a fundamental difference
    between those two situations.

[79]

The trial judge must also consider
    the impact on the losing party of him proceeding with the trial armed, as he
    was, with the parties resolution position. This is especially so when, at the
    time that the settlement was presented, the trial judge had heard one sides
    evidence (in this case the appellants) but not the other sides evidence. In
    that situation, to then continue with the trial, armed with the knowledge of
    the settlement, and find against the party whose evidence had been heard, could
    reasonably raise in the mind of the losing party (the appellant) that the judge
    had closed his mind. With respect, my colleagues conclusion, that only the
    respondents position could have been undermined by the trial judge knowing the
    settlement terms (at para. 44), ignores this salient point.

[80]

I would add that there was no
    significant harm that would have been occasioned to the parties had the trial
    judge recused himself. The trial had just begun. Less than two days of evidence
    had been heard. There was nothing stopping the trial judge from recusing
    himself from the trial and arranging for another judge to recommence the trial
    the following day. The disruption and cost to the parties would have been
    minimal.

[81]

I appreciate that neither counsel
    objected to the trial judge continuing with the trial. Neither counsel asked
    the trial judge to recuse himself nor did either counsel ask for a mistrial. My
    colleagues place great emphasis on counsels failures to raise any objection as
    being sufficient to dispose of the problem. While, in some instances, the
    failure to object can be fatal to a later complaint, this court has said that
    we will relieve against the failure to object where the interests of justice
    require it
: Marshall v. Watson Wyatt & Co.
(2002), 57 O.R. (3d) 813
    (C.A.), at para. 15. The actions of the trial judge, in his approach to the
    settlement, were so misguided, and so seriously undermined a fundamental
    principle of our legal process, that this court cannot ignore it, nor can we
    fail to remedy it, simply because of the omissions of trial counsel.
[1]

[82]

I also do not see how the fact
    that the trial judge went ahead and completed the trial, and rendered a
    decision, can immunize his decision from the impact of what the trial judge
    did, and knew, about the settlement. If the fact that a trial judge proceeds to
    complete the trial, in these circumstances, could excuse the error, then there
    would never be a remedy for this type of conduct.

[83]

The fact remains that the trial
    judges required appearance of objectivity and impartiality was irreparably
    compromised by his knowledge of the settlement, the timing of receipt of that
    knowledge, and of his reaction to it. Among other things, the losing party cannot
    be satisfied that that knowledge did not impact on the trial judges views of
    the evidence or on his conclusions. That reality taints the trial judges
    conclusions and renders them suspect. Consequently, the trial judges
    conclusions are not entitled to any deference by this court.

[84]

My colleagues say that No error
    in the trial judges findings and conclusions regarding the childrens best
    interests has been identified: at para. 51. That conclusion overlooks the
    striking fact that the parents of the children had mutually agreed to a
    resolution that involved a diametrically opposite result for their children.
    That would appear to be a most powerful reason to doubt whether the result
    arrived at by the trial judge was actually in the best interests of the children.
    In that regard, courts have long recognized that parents are generally in the
    best position to decide what is in the best interests of their children:
B.
    (R.) v. Childrens Aid Society of Metropolitan Toronto
, [1995] 1 S.C.R.
    315, at para. 83.

C.

Remedy

[85]

For the reasons above, I would
    allow the appeal. Given this conclusion, the issue becomes what is the
    appropriate remedy. Section 21(5) of the
Divorce Act
, R.S.C. 1985, c. 3
    (2nd Supp.), authorizes an appellate court allowing an appeal to (i) render
    the judgment or make the order that ought to have been rendered or made,
    including such order or such further or other order as it deems just; or (ii)
    order a new hearing where it deems it necessary to do so to correct a
    substantial wrong or miscarriage of justice. I would set aside the order below
    and substitute an order approving the Minutes of Settlement for the following
    reasons.

[86]

In my view, the trial judge ought
    to have approved the parties negotiated settlement. A judge contemplating a
    variation order in respect of a custody order must take into consideration the
    best interests of the children only:
Divorce Act
, s. 17(5). The outcome
    that was the best for the children in this case was for the trial judge to give
    effect to the settlement. An order approving the settlement would have put into
    place the resolution that both parties agreed to. In reaching the settlement
    that they did, both parents had the best interests of the children in mind.
    Putting those agreed arrangements in place enforces those best interests and
    enforces the wishes of the parents as they were then expressed. I do not say
    that a settlement agreement between parents will always be in the best
    interests of the children, but I am confident that this is the case here. The
    traveling issues that appear to have so bothered the trial judge constitute an
    insufficient basis to reject a settlement that the parents carefully worked
    out.

[87]

At the same time, I am mindful of
    the reality that time has since passed, and the children have now begun a new school
    year. That reality is not a sufficient ground, though, to order a new trial for
    two reasons. First, is the time, expense, and prolonged uncertainty that such
    an order would visit on both parties. Second, is the reality that very little
    time has passed since the settlement was reached, particularly when one
    realizes that the settlement did not contemplate any change in the principal
    residence for the children until July of this year. Consequently, the
    disruption associated with the settlement, if now approved with effect from the
    end of the school term in January 2020 (as requested by the appellant),
    involves a period of about four months.

[88]

Consequently, a new trial is not
    the appropriate remedy. The appropriate remedy is to give effect to the Minutes
    of Settlement, as the trial judge should have done.

D.

Conclusion

[89]

I would allow the appeal and set
    aside the order below. I would grant an order approving the Minutes of
    Settlement, dated April 3, 2019, with those terms coming into effect as of the
    end of the childrens school term in January 2020. If problems arise regarding
    access, and the travel time related thereto, I would expect that the parties
    will be able to reach an agreement to address those issues. They have shown,
    through their Minutes of Settlement (both here and in 2016) that they are
    capable of coming to an agreement, when it is in the best interests of their
    children to do so. However, should agreement among themselves prove elusive,
    then the parties should employ a parenting co-ordinator to assist them in
    reaching an agreement. If the parties do not do so, or if the issues remain,
    then I would order that they shall arrange through the appropriate court office
    for a case management conference to resolve the matter.

[90]

I would award the appellant her costs
    of the appeal fixed in the amount of $10,000 inclusive of disbursements and
    HST. The appellant does not seek the costs of the trial and I would not order
    costs with respect to it. It follows that the costs order that was made below
    is set aside.

Released: December 13, 2019

PR

I.V.B.
    Nordheimer J.A. »





[1]

I should note that none of the counsel on appeal were counsel
    at trial.


