Marcos Antonio Rodriguez v. Raymonde Guignard, 2012 ONSC 2444

COURT FILE NO.: FS-11-4773-00

DATE: 20120424

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Marcos Antonio Rodriguez v. Raymonde Guignard

BEFORE: Fragomeni J.

COUNSEL: Stephen Gillies, for the Respondent Moving Party

Gene Colman and Theresa O’Loghlin, for the Applicant

HEARD: April 20, 2012

E N D O R S E M E N T

1ORDER TO ISSUE AS FOLLOWS:

1. The Respondent mother’s cross-motion is granted. Paragraphs 5, 6, and 13 of the Affidavit of the Applicant father sworn March 26, 2012 are struck. The father shall serve and file an amended Affidavit deleting those paragraphs.

2. The father shall not make any reference to the settlement discussions that took place on January 27, 2012;

3. The father’s motion is adjourned, on consent, to May 17, 2012;

4. The mother shall serve and file her written submissions on costs within 5 days (2 pages in length). The father shall serve and file his written submissions on costs within 5 days of receiving the mother’s submissions. The mother shall serve and file any reply within 3 days.

Reasons for Decision

2The father moves for an order for interim joint custody and imposition of an “equal parenting” access schedule. This motion has now been adjourned to be heard May 17, 2012. The mother brought a cross-motion for an order striking paragraph 5, 6, and 13 of the father’s Affidavit sworn March 26, 2012. The mother submits that these paragraphs refer to the contents of an off the record and without prejudice settlement meeting between the parties and their counsel, which is protected by a settlement privilege.

3The father submits that the issue relating to the best interests of the child trumps the settlement privilege that attaches to the settlement meeting and as such that privilege must yield to the best interests of the child.

FACTUAL BACKGROUND

4The parties began living together in December 2009. They separated on February 12, 2012 when the mother left the conjugal home. The parties are not married. The parties have one daughter, Ysabella born February 9, 2010.

5On December 15, 2011 the father brought an urgent motion for an order allowing him to take Ysabella to Nicaragua over the Christmas holiday period. The father’s motion was denied. An order was made granting the mother interim-interim custody of the child pending a case conference to be held on March 27, 2012.

6On January 27, 2012 the parties and their counsel met for a four way settlement meeting. The meeting did not result in an agreement with respect to custody or access.

7The case conference was held on March 27, 2012 and the parties consented to the interim-interim order granting the mother custody to continue pending further order of this Court.

8The existing access schedule since the mother left the home is as follows:

(a) The father sees the child each Tuesday and Thursday from after daycare to 8:00 p.m. and

(b) Each Friday after daycare to Saturday at 6:00 p.m.

9On two occasions, at the father’s request, the child has stayed with her father from Thursday after daycare to Saturday at 6:00 p.m.

THE PARAGRAPHS IN ISSUE

10The following paragraphs are the subject matter of this cross-motion:

5. Settlement Meeting: On 24 January 2012 I met with Raymonde, her lawyer (Stephen Gillies) and my lawyer (Gene C. Colman) at Mr. Colman’s office for a settlement meeting. The result of this meeting, which lasted for approximately five hours, was a very clear and mutually agreed upon understanding of what the time sharing arrangement would be. Using a whiteboard and markers, Raymonde and I together cooperatively mapped out a parenting schedule. I attach as Exhibit “A” to my Affidavit a photograph of the parenting schedule that Raymonde and I constructed cooperatively and placed on a whiteboard. The plan was for Raymonde to move to her own house on or about 1 April 2012 once her tenants had moved out. The parenting schedule would then take effect. I was quite satisfied with this agreement and at the time it appeared that Raymonde was as well.

6. Agreement on joint custody confirmed at Settlement Meeting: Raymonde and I had discussed the question of custody prior to the Settlement Meeting. We had both agreed that joint custody would be appropriate and in the best interest of Ysabella, and we agreed upon this once again at the Settlement Meeting.

7. Colman again cautions that he will bring the matter before the court: In his email to Gillies on 13 February 2012 Colman underscores the fact that Raymonde has acted unilaterally; to remedy this he suggests that she return Ysabella to the home and that she honour the time sharing understanding reached at the Settlement Meeting. Colman also advises that he would bring the matter before the court if need be: “Your client has acted unilaterally. She has left the home without there being any formal time sharing in place… We had a good faith negotiation that resulted in a very clear understanding as to what the time sharing was going to be. Your client has reneged on that… What she is not entitled to do is to suddenly and with almost no advance notice remove Ysa from her only home and then cut down the child’s time with the father… unless we have your written commitment on behalf of your client that the time sharing will be substantially as previously agreed to, we will be bringing this matter before the court… I respectfully suggest that your client return Ysa (and her belongings) to the home immediately…”

JANUARY 27, 2012 SETTLEMENT MEETING

11The four way settlement meeting was held at the office of Mr. Colman. There is no issue that shortly after the meeting began, Mr. Colman, counsel for the father, stated that the meeting was off the record and that the parties were free to speak candidly without any concerns that what was discussed or what they said would be disclosed in court documents or would be binding unless an agreement was signed. In fact this position was acknowledged by father’s counsel in an e-mail dated February 12, 2012.

12The February 12, 2012 e-mail from Mr. Colman to Mr. Gillies states as follows, in part:

I am in a most difficult situation here. We agreed that our meeting at my place was strictly off the record. Until our clients sign an Agreement, each side was entitled to take the position that there is no Agreement.

That leaves your client’s proposed action today to leave the home as an action that is unilateral. Of course, she could leave on her own without the child. But she cannot remove the child from her familiar surroundings without at least an agreement confirmed in writing as between the lawyers. And as of this moment, there is no such agreement!

13The father’s counsel sent a second e-mail to Mr. Gillies dated February 13, 2012. It states as follows, in part:

My associate completed the draft Minutes of Settlement today and I see that she forwarded those Minutes to you. While the wording is certainly not carved in stone and I would normally welcome your input to make the agreement a better worded one, let me be very clear: unless we have your written commitment on behalf of your client that the time sharing will be substantially as previously agreed to, we will be bringing this matter before the court without further consultation with you as to the return date. Your side acted unilaterally and in apparent bad faith by precipitating this crisis. Our side intends to right that in court if we have to. I classify this as a very urgent matter that needs immediate attention. If the lawyers cannot solve it, then the court will be called on to do so.

We negotiated in good faith and then we were blind-sided. I readily admit that it was made very clear at the outset of the settlement meeting that it was off the record and that there was no deal until a deal was actually signed. Therefore, under normal circumstances one could not mention in court what the positions were at the Settlement Meeting. I maintain that where one side negotiates in bad faith by using the meeting as a stall tactic or smokescreen to then take unilateral action that affects the rights of the other party, and especially where the issue of custody, access and time sharing re a child is involved, then the first party cannot rely on the otherwise privileged status of the negotiations.

RELEVANT LAW

14Section 55(1) of the Family Law Act states:

55.(1) A domestic contract and an agreement to amend or rescind a domestic contract are unenforceable unless made in writing, signed by the parties and witnessed.

15In this case section 55 dictates that no agreement was entered into.

16In support of her position the mother filed the decision in Inter-Leasing, Inc. v. Ontario (Minister of Finance) and Bashir Mohammed 2009 63595 (Ont. S.C. Div. Ct.). At paras. 10 and 11 the Divisional Court set out the following:

Communications, whether oral or written, made in furtherance of the settlement of a litigious dispute are subject to privilege. According to Bryant, Lederman and Fuerst, The Law of Evidence in Canada (at para. 14.322), three conditions must be present for settlement privilege to apply:

1.A litigious dispute must be in existence or within contemplation.

2.The communication must be made with the express or implied intention it would not be disclosed in a legal proceeding in the event negotiations failed.

3.The purpose of the communication must be to attempt to effect a settlement.

A party seeking to introduce in evidence material subject to settlement privilege must show that the communication is relevant and the disclosure is necessary, either to show the agreement of the parties or to address a compelling or overriding interest of justice (Dos Santos (Committee of) v. Sun Life Assurance Co. of Canada, 2005 BCCA 4, [2005] B.C.J. No. 5 (B.C.C.A.) at para. 20). Exceptions to the privilege have arisen where there has been fraud, where production is necessary to meet a defence of laches, lack of notice or the passage of a limitation period, or where parties have made an agreement respecting evidence in the litigation (Middlekamp v. Fraser Valley Real Estate Board (1992), 1992 4039 (BC CA), 96 D.L.R. (4th) 227 (B.C.C.A.) at 223).

17In Johnstone v. Locke 2011 Caswell ONT13914 2011 ONSC 7138, J. MacKinnon J. stated this at paras 11 and 12:

Based on the differing jurisprudence emanating from the Divisional Court and the view expressed by the Ontario Court of Appeal in Rogacki, I conclude that I am not bound by the ruling in Magnotta. I prefer the approach taken in Inter-Leasing and by the British Columbia Court of Appeal in Dos Santos and in Middlekamp v Fraser Valley Real Estate Board (1992), 1992 4039 (BC CA), 96 D.L.R. (4th) 227 (B.C.C.A). A case by case analysis does not adequately support the policy underlying settlement privilege. The Supreme Court of Canada has described this as an "overriding public interest in favour of settlement.": Kelvin Energy Ltd. v. Lee, 1992 38 (SCC), [1992] 3 S.C.R. 235, quoting with approval, Sparling v. Southam Inc. (1988), 1988 4694 (ON SC), 66 O.R. (2d) 225. (H.Ct.J.)

Alan W. Bryant, Sidney N. Lederman, & Michelle K. Fuerst, The Law of Evidence in Canada, 3d ed. (Markham: LexisNexis Canada Inc., 2009), summarize the policy interest at play, at p. 1030:

s. 14.313 It has long been recognized as a policy interest worth fostering that parties be encouraged to resolve their private disputes without recourse to litigation, or, if an action has been commenced, encouraged to effect a compromise without resort to trial.

s. 14.315 In furthering these objectives, the courts have protected from disclosure communications, whether written or oral, made with a view to reconciliation or settlement. In the absence of such protection, few parties would initiate settlement negotiations for fear that any concession they would be prepared to offer could be used to their detriment if no settlement agreement was forthcoming.

18The mother also filed the decision in Noonan v. Alpha-Vico 2010 Caswell Ont. 4813 ONSC 2720 at para. 54:

More recently settlement privilege has emerged as a separate protected area so that information exchanged, proposals made and discussions taking place for the purpose of attempting settlement will be immune from production even if they are otherwise relevant.²² Obviously settlement privilege will in many cases overlap with either litigation privilege or solicitor client privilege. Nor is it necessary for the purpose of this motion to explore the outer limits of the privilege, in what cases it may yield to the imperatives of justice and the extent which, like litigation privilege, it may be temporary.

19At paragraph 23 of her Factum the mother makes the following submission:

There are compelling reasons to afford protection to settlement discussions. The privilege encourages parties to settle their disputes without recourse to litigation and to do so without fear that concessions, proposals or compromise made during settlement discussions will prejudice their position should litigation proceed. The absence of such protection would have a “chilling effect” on the willingness of litigants to engage in settlement discussions.

Few parties would initiate settlement discussions for fear that any concessions they would be prepared to offer could be used to their detriment if no settlement agreement was forthcoming.

Bryant et. Al. “The Law of Evidence in Canada” (3^rd) Markham: LexisNexis Canada Inc. cited with approval in Johnstone v. Locke 2011Carswell Ont 13914, 2011 ONSC 7138 at para. 12 Tab “B”

20The father also filed a Brief of Authorities to support his position. In essence the father argues that settlement privilege is not absolute and must be considered on a case by case basis. As he maintained in his February 13, 2012 e-mail since the mother negotiated in bad faith and acted unilaterally by moving out of the home in February instead of April and without the time sharing in place, she cannot now rely on the otherwise privileged status of the negotiations.

21The father referred the Court to Hutton v. Hutton, [1990] O.J. No. 1081:

Both parents applied for interim custody of their child. In her affidavit the mother disclosed an offer made to her by the father to give her custody of the child, $60,000 and $600 per month support. The father brought a motion to strike this paragraph, because the information was privileged. The parties had been involved in settlement negotiations, … The wife argued the information was necessary to assess the best interests of the child as it reflected on the sincerity of the father's claim for custody.

The paragraph was allowed but for the financial details. The court was required to choose between two conflicting policies: to keep settlement negotiations confidential to encourage parties to resolve disputes themselves and the policy to protect the best interests of children in custody disputes. The court concluded that custody cases were different from ordinary litigation and that the interests of the child would have to be paramount to the adversarial interests of the parents. As the paragraph in question contained information reflecting on the sincerity of the father's custody claim, it was allowed to stand to ensure an accurate assessment of the child's best interests.

The courts have traditionally treated custody claims differently from conventional litigation. In custody cases, the strict rules of the adversary process are sometimes relaxed when they impede the court from a determination of what is in the best interests of the child. So much so that the trial judge is encouraged to take a more active role in the trial, in an effort to obtain information determinative of the child's best interests. As the Court of Appeal noted in Gordon v. Gordon (1980), 1980 3616 (ON CA), 23, R.F.L.(2d) 266 at 271;

I am not unmindful of the fact that the court should not lightly displace a privilege that has been entrenched in the law for so long, but in this case, it is necessary to give pre-eminence to a policy objective that is superior to it. Although both policy objectives are important and deserve to be fostered, the policy interest that promotes and protects the best interests of the child is paramount and the privilege attached to settlement discussions must therefore yield to it…

I leave for another time the possibility that the result might be quite different where the settlement discussions were commenced only after the privilege had been expressly claimed by one of the litigants and expressly or impliedly granted by the other litigant. The unfairness implicit in overriding the privilege in such circumstances might be so profound as to militate against it. However, in this case, that factor is missing and I will say nothing further about a set of facts that have not as yet arisen except to mention that the result may not be the same with that important factual variation.

22In Georgareas v. Georgareas, [2006] O.J. No. 5316 T.C. Herman J. stated:

Ms. Angela Georgareas (the mother) moves for an order striking various paragraphs and exhibits from the affidavit of Mr. Georgareas (the father), dated May 9, 2006. The motion is brought on the basis that the paragraphs and exhibits in question relate either to settlement proposals and discussions between the parties' counsel.

However, while the substance of the proposals is privileged, evidence that attempts have been made to resolve access and those attempts have not been successful is, in my opinion, permitted evidence. The ability of the parents to come to agreements regarding their children, including agreements regarding access, is relevant to a determination of custody and access and what is in the children's best interests.

The substance of the discussions should therefore be deleted from the affidavit and exhibits but evidence in support of the party's allegation that there is a pattern of frustrating access is otherwise permitted.

CONCLUSION

23In her Affidavit sworn April 12, 2012 in support of her Cross-Motion, the mother deposes as follows at paragraphs 54 to 58:

54. I was shocked when I was informed that the contents of the settlement meeting were disclosed to this honourable Court. It was my understanding from Mr. Colman’s clear and explicit comments at the outset of the meeting that this would not happen.

55. I was also shocked to learn that Marcos through his counsel is continuing to try and impose on me an “equal parenting” regime which I did not accept and for which there is no written agreement and which is not in the best interests of Ysabella.

56. I was reluctant to participate in the settlement meeting because of Marcos’ bulling during the course of our relationship and because I was afraid that he would twist my words to get what he wants.

57. I participated in the meeting with the assurance from my own counsel that anything that was said in the meeting was without prejudice to my position and that what was said would not be reported back to the Court.

58. Mr. Colman also assured me that I would have an opportunity to review any proposed written agreement and that in custody and access cases the law is such that any written agreement is not enforceable unless it is signed by the parties and witnessed. I am shocked that Marcos is now attempting to impose on me an unsigned custody and access agreement that I do not agree to, and to do so by doing what Mr. Colman at the start of the settlement meeting explicitly and clearly said would not happen.

24The mother then sets out the circumstances that resulted in her leaving the home on February 12, 2012. At paragraphs 59 to 67 she states:

59. Following the four way meeting conditions in Marcos’ household continued to be strained;

60. On January 25, 2012 Marcos temporarily locked me out of the house.

61. On February 7, 2012 Marcos and his extended family attended at the house to celebrate Ysabella’s birthday. They initially refused to allow me to be in the home at all; they subsequently relented but refused to allow me to sit at the table. They simply ostracized me from the birthday proceedings.

62. Throughout, Marcos’ mother continued to place name tags on the food in the refrigerator and told me that the food was not for me but only for Marcos and his family.

63. Both Marcos and his mother repeatedly asked me when I was going to leave.

64. On February 3, 2012 I discovered that Marcos was covertly recording his conversations with me.

65. On Friday February 10, 2012 I told Marcos through counsel that I intended to leave the home on Sunday February 12, 2012. I advised that I intended to take with me all of Ysabella’s clothes, toiletries, diapers, change table, bedding and toys.

66. On February 12, 2012 Ysabella and I moved out of house and into temporary accommodation with my friend Natasha Robinson, pending my move into my own home on April 1, 2012. Our respective houses are about a 5-10 minute drive away from each other.

67.I was forced to leave Marcos’ house because the living situation there simply became untenable.

25The father argues that the mother had an improper motive not only in participating in the four way settlement meeting but in leaving the home as she did on February 12, 2012. I am not satisfied that the evidentiary record before me establishes or demonstrates that the mother acted with any improper motives.

26I agree entirely with the mother’s position and submissions on this cross-motion. The mother aptly and properly articulates the concern raised if off the record discussions find their way in Court documents when she states in her Factum at paragraph 23 that “the absence of such protection would have a “chilling effect” on the willingness of litigants to engage in settlement discussions.”

27Further the mother’s position gains further strength in that the father readily acknowledges in his e-mail of February 12, 2012 that “until our clients sign an Agreement, each side was entitled to take the position that there is no Agreement.”

28The father’s position at this cross-motion is therefore untenable. The father agreed to an off the record and without prejudice settlement meeting. Reluctantly the mother agreed to meet but did so on that basis and on the basis there would be no Agreement unless there was a signed Agreement.

29For all of these reasons, the mother’s cross-motion is granted as per the terms set out in my order.

Fragomeni J.