Most of the stories we cover in our blog are related to spouses or parents who are unable to agree on critical issues, leading to litigation. Today’s blog covers a slightly different situation. In a recent decision from the Ontario Court of Appeal, the court addressed whether a court can reject a settlement agreed upon by two parents during the course of a trial.

The facts

The case involves a couple who were married in 2003. They had two children (now 14 and 8 years old) before separating in 2012 and divorcing in 2015. Leading up to the divorce, the parents participated in an assessment pursuant to s.30 of the Children’s Law Reform Act. The mother had wanted to move to Ottawa with the children, while the father planned to stay in the Niagara region. The assessor, however, recommended that the children stay in the Niagara region and that the parents have joint custody of them.

The mother maintained two residences for a couple of years following the recommendation. She split her time between Ottawa, where she lived with her new partner, and the Niagara region, where she returned in order to share time with the children.  

However, in 2017 the mother was appointed to be a Justice of the Peace and had to remain on Ottawa full time. She brought a motion to change the consent order on the basis that it would be in the children’s best interests to reside with her in Ottawa. The matter ended up in court after the parents were unable to settle the matter.

The original trial and the settlement

The court was advised on the second day of the trial that the parties were attempting to negotiate a settlement. A proposed settlement was presented to the court the following day, and it provided that the children would live in Ottawa with the mother, but that the father would have final decision-making authority for them.

After reviewing the proposed settlement, the court refused to approve it, eventually concluding it was not in the children’s best interest to move to Ottawa. The judge’s ultimate ruling saw the mother with reduced access. She appealed the decision.

On appeal

The mother’s appeal focused on the trial judge’s rejection of the proposed settlement, arguing that the judge failed to give reasons for rejecting it.

The court noted that settlements are an important part of the family law system and that they should be promoted and encouraged. However, the court also stated settlements still have to be rejected if they are not aligned with the best interest of the child(ren).

The court was critical of the trial judge, writing that if a judge rejects a settlement, the reasons for doing so should be provided, writing, “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 court’s 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.”

Nevertheless, the court did not view a failure to provide reasons as important enough to warrant overturning the trial judge’s decision on the matter. As a result, the appeal was dismissed.

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