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 appellant’s 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), 2005 1625 (ON CA), 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 child’s passport by counsel, dealings with the home and other corollary matters.

[8] The mother’s 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 father’s lawyer]: All right.

THE COURT: So let’s 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 mother’s 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 child’s 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 mother’s counsel thought he had agreed to a trial order, while the father’s 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 wife’s 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 baby’s 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 father’s plan of care involving members of his family who were in court and whom he found to be competent. The mother’s 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 wife’s 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 wife’s 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 mother’s 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 Children’s 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 judge’s 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 child’s 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 the 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 court’s 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 Children’s 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 judge’s 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 panel’s 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 Brown’s 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 court’s obligation to give priority to the best interests of the child: see Children’s 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 Children’s Law Reform Act requires a judge, before granting a consent order involving custody or access, to receive a parenting affidavit that includes the party’s proposed plan for the child’s care and upbringing, information respecting the person’s 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 Children’s 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 judge’s 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 judge’s 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 Ethan’s 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 Ethan’s 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-Coutt’s 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….”