A recent Ontario Court of Appeal decision confirmed that a judge can reject a family law settlement agreed to by the parties if the judge believes it is not in the best interest of the children.

What Happened?

The mother and father were married on August 3, 2003. They separated in 2012 and divorced in 2015. Both parties have since remarried. 

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

In 2015, the parties consented to participate in an assessment pursuant to s. 30 of the Children’s Law Reform Act. The mother was seeking to have the children move with her to Ottawa, where she planned to relocate. The assessor, however, agreed with the father and recommended that the children stay in the Niagara region and that the parties have joint custody. 

The parties accepted the assessor’s recommendation and settled the matter. The settlement was accepted by the court and a consent order dated June 14, 2016 was issued on these terms.

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

In July 2017, the mother 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.

Proposed Settlement

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.

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 father in the Niagara region to Ottawa, where they would live with the mother. However, the proposed settlement also provided that the father would have final decision-making authority concerning the children.

Lower Court Decision

The trial judge reviewed the proposed settlement but refused to approve it. He did not provide reasons for the rejection and the parties’ counsel did not inquire or object.

The trial continued the next day.

The trial judge released his decision on April 8, 2019, denying the mother’s requested change and largely accepting the father’s proposal.

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 father’s draft proposal. The children would remain in the Niagara region. Their primary residence would be with the father. However, the trial judge made several amendments to the father’s draft proposal, namely in the provision for time sharing so as to reduce travel. This had the effect of reducing the mother’s access to the children.

The mother appealed.

Issues

The mother argued 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. 

Court of Appeal Decision

The court began by explaining the importance of settlements in family law: they are to be promoted and encouraged by the courts.

The court stated that 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.

The court then explained that if a judge rejects a settlement, the reasons for rejecting the settlement should be provided. 

However, the court found the situation in this case to be exceptional, stating:

“In short, the trial judge’s decision to continue the trial without providing reasons for rejecting the proposed settlement undermined the settlement process and the court’s duty to help the parties settle their case […]. 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.”  

As a result, the court stated that, while it agreed with the mother that the trial judge should have provided reasons for his decision to reject the proposed settlement, it did not follow that the proposed settlement should now be accepted. 

The mother’s appeal was dismissed.

Get Advice

At Feigenbaum Law, our goal is to help you move forward following the breakdown of a relationship while retaining as much financial stability as possible and ensuring your children are provided for. Mark Feigenbaum is able to counsel his clients on all potential risks that may result from a family law dispute, not just those related strictly to the breakdown of a marriage. Contact Mark online or call him at (905) 695-1269 or toll-free at (877) 275-4792 to book a consultation.