Court File and Parties

DATE: July 30, 2024 Court File Number: D55692/11 Ontario Court of Justice 47 Sheppard Ave. E, Toronto, Ontario

Applicant: A. Barnes Counsel: J. Irwin

Respondent: J. Burke Counsel: J. Pecchia

Endorsement Justice M. Sager In Chambers

[1] The Respondent has served and filed a 14B Motion seeking an order for the release of transcripts from 10 conferences conducted in this court between 2012 and 2020 before three different judges. All the dates were either Settlement or Case Conferences.

[2] The Respondent also asks the court to order that the fees associated with obtaining official transcripts of court proceedings be “waived”.

[3] The Applicant has filed a response to the 14B Motion opposing the relief requested by the Respondent.

Background of the litigation

[4] The parties have been in and out of litigation in this and other courts since 2011. A final order was made by Justice Waldman on July 25, 2013, following a six day trial in 2013. Justice Waldman’s order addresses issues of custody, access [1] and child support.

[5] The Respondent has commenced Motions to Change the final order. On November 27, 2017, his Motion to Change the parenting orders was dismissed by this court following a Summary Judgment Motion and that decision was upheld by Justice Frances Kiteley of the Superior Court of Justice on September 5, 2018.

[6] The Respondent’s Motion to Change Child support issued in 2016 was stayed on January 7, 2020, and ultimately dismissed on March 11, 2024 for lack of disclosure and failure to comply with previous orders of the court.

[7] On April 22, 2024, the court heard a motion brought by the Respondent to enforce the access terms of the Justice Waldman’s order. Due to the Respondent’s egregious conduct directed at the children, the Applicant’s inability to comply with the order was found to be justified by the court and the Respondent’s motion was dismissed on May 15, 2024.

[8] In the current 14B Motion the Respondent advises that this court’s dismissals of his Motion to Change Child Support and his Motion to enforce his access to his children are both being appealed to the Superior Court of Justice.

The parties’ position on the 14B Motion for the release of transcripts from previous conferences

[9] The reasons for the Respondent’s request for the transcripts back to 2012 are unclear. The following is what the court can discern to be the reasons from the Respondent’s affidavit sworn July 10, 2024, in support of the relief requested:

(i) The Respondent is deaf and hard of hearing and claims that he has endured issues with “Service Delivery”, as prescribed by the Canadian Charter of Rights and Freedoms as far back as 2011.

(ii) The Respondent has encountered difficulties obtaining notes from the Communication Access Realtime Translation (CART) service that was in court to assist him throughout these proceedings. He says he has been denied service as “prescribed by the Ontario Human Rights Code (OHRC) and the Canadian Charter of Rights and Freedoms ”.

(iii) The Respondent has been unable to confirm that CART was made available to him on January 23, 2014, July 10, 2014 and February 10, 2016, as the Respondent has been advised by the Supervisor of Court Operations that “the CART service provider was not able to confirm attendance for any dates prior to May 2016.”

(iv) Even when CART services were made available to the Respondent, the notes were not always made available to him.

(v) The Respondent says he requires the transcripts to perfect his appeals to the Ontario Superior Court of Justice from the orders made on March 11, 2024 and May 15, 2024.

[10] The Applicant objects to the relief requested by the Respondent as she denies that the transcripts are required to perfect the appeals of orders dated March 11, 2024 and May 15, 2024, as the orders were made on written submissions only. [2] Furthermore, she says that some of the transcripts requested are of other proceedings, possibly between the Respondent and the Family Responsibility Office (FRO), as the 14B Motion indicates the transcripts are being requested from three different cases with different court file numbers. [3]

[11] The Applicant also questions why the Respondent requires transcripts from conferences that predate January 7, 2020, when his Motion to Change child support was stayed by this court. She also says it is difficult to understand how transcripts back to 2012 are relevant to the dismissal of the Respondent’s motion to enforce his access to the children on May 15, 2024.

[12] The Applicant says that any concerns the Respondent has about “service delivery” is between him and the Ministry of the Attorney General and are in no way relevant to the litigation between her and the Respondent.

The law

[13] Subrule 17(23) of the Family Law Rules (the Rules) provides that,

“No brief or evidence prepared for a settlement conference and no statement made at a settlement conference shall be disclosed to any other judge, except in,

(a) An agreement reached at a settlement conference; or,

(b) An order.

[14] The rationale for subrule 17(23) is to ensure that litigants and judges can speak freely during settlement discussions and that judges, specifically, can make suggestions and/or give opinions during these discussions. The purpose of protecting the confidentiality of settlement discussions is to foster free and unrestricted discussions which would be inhibited if what is discussed could be reproduced and relied upon at a later date. [4]

[15] While subrule 17(23) only references Settlement Conferences, judicial treatment of this subrule when faced with requests for transcripts from other conferences has been applied in the same manner to case conferences given that settlement discussions are often held in case and trial management conferences. [5] Courts have repeatedly said that discussion at all conferences must be protected in the same manner as settlement conferences. There is no dispute on this issue in the caselaw.

[16] The consistent legal test applied by courts when faced with a request to release a transcript from a conference is that set out by Justice J.W. Quinn in Children’s Aid Society of Niagara Region v. N. (R.). To obtain a transcript from a conference, a litigant must provide evidence of proof of (a) a legitimate need for the transcript; and (b) the probative value of the transcript outweighs its possible harm.

[17] The caselaw on this issue has evolved to provide that transcripts of conferences should only be released in extraordinary circumstances. [6]

Analysis of the evidence

[18] The Respondent has not provided the court with a clear and understandable explanation as to why he requires the transcripts requested. The reasons he does provide in his affidavit evidence, i.e. to perfect his appeal of orders made in 2024, are not legitimate reasons as he provides no connection between transcripts of proceedings held between 2012 and 2020 and orders made on motions in 2024.

[19] The Respondent has not discharged his onus of providing the court with proof of a legitimate need for the transcripts requested. The court cannot find on the evidence that there is any legitimate need for the transcripts requested by the Respondent that outweighs the goal of protecting the confidentiality of conferences held in family litigation.

[20] This court does not have the authority to “waive” the cost of obtaining transcripts. The Respondent ought to know this given that he has made previous requests by 14B Motion for orders from this court in relation to “service delivery” that he was advised the court does not have the jurisdiction to grant. Despite previous endorsements of the court reminding the Respondent that this court obtains its jurisdiction from statute only he continues to request orders that the court cannot grant. The Respondent is well advised to be prepared to provide the legal basis for any future relief he seeks from this court.

Conclusion

[21] As transcripts of Settlement and Case Conferences should only be released by order of the court in extraordinary circumstances, of which none exist in this case, the Respondent’s 14B Motion must be dismissed.

Order

[22] The Respondent’s 14B Motion dated July 10, 2024, and filed with the court on July 11, 2024 is dismissed with prejudice.

[23] The Applicant is entitled to her costs of responding to this motion. If the parties cannot agree on the issue of costs, the Applicant shall serve and file her cost submissions not exceeding 2 pages within 20 days of the date of this endorsement and the Respondent shall have up to 10 days from receipt of the Applicant’s costs submissions to serve and file his response which shall not exceed 2 pages.

[24] The Respondent shall clearly set out in any future 14B Motions the relief he is seeking and the section of the relevant statute he relies upon in support of the relief requested.

Justice M. Sager

Footnotes

[1] Custody and access are words no longer used in the Children’s Law Reform Act and have been replaced with decision making responsibility and parenting time.

[2] Although this submission is incorrect as the May 15, 2024 order was made on written and oral submissions heard on April 22, 2024.

[3] The two other cases are in fact domestic files between the parties with the same file number but a different extension for Motions to Change.

[4] Benet v. Benet, Cammarata v. Murphy, 2022 ONSC 2358, Bordynuik v. Bordynuik.

[5] Children’s Aid Society of Niagara Region v. N. (R.), Bordynuik v. Bordynuik, ibid., Dobraca v. Serter, 2024 ONSC 1936.

[6] Dobraca v. Serter, ibid., Cammarata v. Murphy, ibid., Rowe v. Rowe, 2024 ONSC 4022.