ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ANEESA NADIA ZAMALUDEEN RUFFUDEEN-COUTTS
Applicant
– and –
CONRAD MICHAEL COUTTS
Respondent
Paul D. Amey, for the Applicant
Grace Sun, for the Respondent
HEARD: September 25,2012
Leitch j.
1The Applicant seeks to set aside paras. 1, 2, 3 and 4 of a consent final order made by Hambly J. on May 31, 2011 pursuant to rule 59.06(2) on the basis of “facts arising or discovered after it was made”.
Background Facts
2The Applicant and the Respondent were married April 29, 2009 and have one child, Ethan, born May 15, 2009. Both the Applicant and the Respondent are well educated professionals.
3The parties separated in the fall of 2010. There is a dispute as to the actual date of separation.
4The Applicant commenced a divorce application on December 15, 2010.
5It is fair to say that there have been many disputes between the parties since their separation. Police intervention had been authorized to facilitate access exchanges. There were restraining orders. There were disputes respecting the matrimonial home. There was a contempt motion. There were issues respecting joint bank accounts and issues respecting Ethan’s passport. In addition, custody and access has been very contentious.
6The Applicant brought a motion returnable December 22, 2010 prior to a case conference on an urgent basis seeking sole custody of Ethan with supervised access for the Respondent. She swore a lengthy affidavit on December 16, 2010 in support of her motion.
7The Respondent was served December 16, 2010 with the motion materials. He immediately met with legal counsel who contacted Mr. Buck, the Applicant’s lawyer at the time, seeking Mr. Buck’s agreement to adjourn the proposed return date of the Applicant’s motion but Mr. Buck did not agree to an adjournment.
8The Respondent swore a responding affidavit December 21, 2010 but, as he deposed in a subsequent affidavit sworn March 17, 2011, his responding affidavit could not be filed in time.
9The Applicant’s December 22, 2010 motion was not heard because a temporary order was made on consent on a without prejudice basis. Pursuant to this December 22, 2010 order, the Applicant was to provide day-to-day care for Ethan and the Respondent had supervised access each week on Sundays but not overnight.
10The Respondent filed his Answer January 25, 2011. Thereafter, through his counsel at the time Ms. Klodner, the Respondent sought increased access to Ethan. He also proposed mediation to resolve some of the issues in dispute. Both of these proposals were rejected by the Applicant.
11A case conference was scheduled for April 15, 2011 but it did not occur.
12On March 21, 2011, the Respondent brought a motion seeking extended access of Ethan and relief from the requirement that his access be supervised. The motion was subsequently amended. The Respondent’s amended notice of motion sought an order that Ethan be placed in the Respondent’s care every second week from Friday after school/daycare until the following Friday after school/daycare or in the alternative, every second weekend from Friday after school until Monday morning, or Tuesday morning if Monday is a statutory holiday, as well as every Wednesday from after school/daycare until Thursday morning at which time Ethan would be dropped off at school/daycare.
13The Respondent’s motion was scheduled for hearing on May 31, 2011.
14By May 31, 2011, the continuing record included (in addition to the December affidavits of both parties): an affidavit of the Respondent sworn February 15, 2011; an affidavit of his brother sworn February 13, 2011; a further affidavit of the Applicant sworn February 27, 2011; an affidavit of her brother sworn February 27, 2011; a further affidavit of the Respondent sworn March 17, 2011; and a further affidavit of the Applicant sworn March 22, 2011. The parties had scheduled cross examinations on their affidavits for June 1 and 2, 2011.
15The Applicant alleges in her affidavit material that the Respondent’s behaviour has been physically and emotionally abusive. The Respondent alleges that the Applicant has an overbearing, controlling and argumentative nature. They make many accusations against each other in relation to many issues, including their ability to care for Ethan. They both accuse the other of failing to cooperate and failing to deal with their issues judiciously and expediently.
16The order arising from the Respondent’s motion scheduled for hearing on May 31, 2011 is the subject of this motion.
The Consent Order Made May 31, 2011
17On May 31, 2011 the parties agreed to a final order which reflected their agreement to shared custody of Ethan; with Ethan living alternate weeks with each parent.
What Occurred on May 31, 2011 When the Respondent’s Motion Was to be Heard
18At the commencement of the hearing, Mr. Buck reported to the motions judge that questioning would be proceeding over the following two days. He also reported that there were a number of issues that the parties had agreed to. He advised the motions judge that the parties wished to resolve the issue respecting Ethan’s primary residence in accordance with the temporary arrangement they had agreed to. Ethan’s primary residence would remain with the Applicant. The issues for argument were the husband’s contribution to daycare and Montessori costs, his expanded access to Ethan and the s. 30 assessment which the Respondent was seeking but which the Applicant thought was unnecessary.
19The motions judge asked Mr. Buck what the Applicant’s position was on access. He advised the motions judge that supervision of the Respondent’s access would no longer be required and the Applicant was in agreement with alternate weekend access on both Saturdays and Sundays provided that there was no overnight access but “some months down the road” she would be prepared to reconsider that proviso.
20Ms. Klodner was asked for the Respondent’s position on access and the motions judge was informed that the Respondent was seeking alternate weekend access, including overnights.
21The motions judge then indicated that he was looking at para. 5 of the consent endorsement request the parties had put before him. This para. specified that Ethan’s primary residence would remain with the Applicant. The motions judge indicated he was also looking at the Respondent’s Answer in which he sought to have Ethan’s primary residence with him or alternatively, be split 50/50 with the Applicant. The motions judge then asked Ms. Klodner if the Respondent was resiling from his position in his Answer, at least on an interim basis. In response, Ms. Klodner indicated that that was so on a temporary basis to try to move the matter forward.
22The motions judge then asked if the Respondent wanted Ethan to have his primary residence with him and Ms. Klodner replied that he did. The motions judge then stated:
Well I tell you, I think what is going on here is parental alienation by the mother of the father and I am not bound by your consent and primary residence remains open. So I will hear your submissions on it.
23The motions judge also expressed his view that there was no urgency to make a decision in relation to custody and access in December 2010 and an order ought not to have been made prior to a case conference.
24The motions judge also expressed criticism of the terms of the December 22, 2010 consent order and expressed his view that “there was never a case for supervised access in the first place. You know, I do not know how it got ordered but it did. But as I read the materials, there was never a case for supervised access.”
25The motions judge then heard submissions on behalf of both parties. He also questioned the members of the Respondent’s family who were in court. On this motion, the Applicant’s lawyer expressed concern that the motions judge had made a “rough and ready assessment of their suitability to assist the father”.
26Immediately prior to the lunch recess, the motions judge asked Ms. Klodner “to seek instructions that if primary residence is with your client, what involvement would he want the mother to have”. The motions judge then went on to ask Mr Buck “to seek instructions if primary residence is with the father, what involvement she [the Applicant] would want with the child. Time, dates and so forth”.
27At the conclusion of the lunch recess, Mr. Buck returned to court and asked for an additional recess and reported to the motions judge that Ms. Klodner was agreeable to allowing him 15 more minutes. The motions judge questioned why further time was required and Mr. Buck indicated that time was required “to see if we can come up with something”. The motions judge indicated he would be making a decision in the case and asked “what was the problem”? After Mr. Buck indicated that they had been having discussions “over the entirety of the break” and they may be able to reach a resolution, the motions judge cautioned that any resolution would have to meet his approval. Although Ms. Klodner was prepared to give Mr. Buck additional time to canvass his client’s instructions, the motions judge indicated he would give Mr. Buck an additional ten minutes “and not a minute more”.
28When the hearing resumed, the motions judge was informed that the parties had agreed to “a week about order”. There was then some discussion respecting child support, s. 7 expenses and the sale of the matrimonial home. The motions judge offered counsel as much time as counsel needed to resolve these other issues. He had been previously concerned with staff’s time and indicated he was prepared to give counsel more time to draft a consent for the parties to sign.
29A consent was prepared by both counsel and then signed by both parties. When the signed consent was reviewed by the motions judge, Mr. Buck indicated that some parts of the order were final and some temporary. After a further recess the motions judge read the terms of the proposed consent order on the record including what became paras. 1 – 4 of the May 31, 2011 order, which the Applicant now seeks to set aside. Paragraphs 1, 2, 3 and 4 of the May 31, 2011 order require shared custody, on alternating weeks, with exchanges involving the assistance of a third party and obliged the parties to meet with a qualified professional to work out a detailed parenting plan.
30On June 6, 2011, the motions judge released written Reasons relating to the May 31, 2011 consent order which confirm what he had said in court. As his Reasons indicate, he questioned why supervised access had been initially ordered, noting that even if he took the Applicant’s allegations at the highest, he did not see how they supported a case for supervised access. He also took issue with the Applicant’s allegation that the Respondent had sexually abused Ethan in the summer of 2009. He questioned the necessity of the restraining order and reiterated his view that the Applicant was attempting to alienate Ethan from the Respondent.
31The motions judge noted at para. 10 of his reasons that after spending considerable time reading the motion materials and listening to submissions, he had expressed his view that Ethan’s primary residence should be with the Respondent and the issue was whether the Applicant’s involvement with Ethan should be supervised in a manner that would ensure that she did not attempt to alienate Ethan from the Respondent. The motions judge also noted that after receiving his view, counsel had asked for time to seek instructions from their clients and the parties had eventually filed their consent to the shared custody order. Therefore, as the written reasons make clear, the motions judge recognized that his expression of his views had a significant impact on the parties leading to their consent to the May 31, 2011 order.
32In his Reasons, the motions judge indicated his willingness to sign the consent order with the addition of three paras. – an order prohibiting the parties from criticising the other or speaking adversely of the other in the presence of Ethan; an order requiring each party to ensure that anyone assisting them in Ethan’s care would behave similarly; and, an order that the affidavit of the Applicant’s brother sworn February 27, 2011 would be struck out and removed from the continuing record.
The Applicant’s Appeal and the Decision from the Ontario Court of Appeal
33In mid-June, 2011, the Applicant commenced an appeal of the May 31, 2011 order. One of the Applicant’s grounds of appeal was that her consent to the May 31, 2011 order was coerced.
34The Respondent brought a motion to quash the appeal.
35The appeal was heard in November, 2011 and the decision of the Court of Appeal was released in February, 2012.
36The majority of the Court of Appeal concluded that the record did not demonstrate an arguable case that the order was not in Ethan’s best interest at the time the order was made. Indeed, the majority of the Court of Appeal found as follows at para. 74:
In her factum on the motion for leave ... [the Applicant] submits that the motions judge failed in various respects, to consider Ethan’s best interest. 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 interest. 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.
37However, the majority of the Court of Appeal went on to note at para. 75 that “in a family law case where no concern is raised about the best interests of children, a party may still be granted leave to appeal on the basis of the test applicable to civil cases generally, where principles of contract law that potentially undermine consent are engaged”.
38The majority of the Court of Appeal declined to grant leave to appeal, noting that there was no affidavit from the Applicant or her lawyer with respect to the issue of duress.
39As the court observed at para. 76:
This takes us to the real ground raised in Ms. Ruffudeen-Coutts’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 motions judge made his order on the basis of her consent.
40However, the court also noted at para. 78 that it was open to the Applicant to seek relief pursuant to rule 59.06 on a proper evidentiary record:
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. No. 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.
41As a result, the Applicant has pursued this motion and provided evidence, which had not been part of her appeal. Each of the parties has filed further affidavits in addition to affidavits from Mr. Buck and Ms. Klodnar. Both parties and both lawyers have been cross examined on their affidavits.
The Relief Sought by the Applicant on this Motion
42Although the Applicant’s factum sought a number of additional items of relief, including a parenting assessment pursuant to s. 30 of the Children’s Law Reform Act, the Applicant’s counsel clarified at the hearing of the motion that the only relief sought on the motion was the setting aside of paras. 1, 2, 3 and 4 of the order made May 31, 2011. The Respondent’s counsel was in agreement that the relief sought should be so limited.
Evidence of the Applicant and Mr. Buck
43The Applicant, her brother and Mr. Buck described their perceptions of the demeanour of the motions judge in their affidavits filed in support of this motion. While I think it is inappropriate to over-emphasize demeanour, which can be easily misperceived, I note that Mr. Buck included in his time docket the following:
“to arguing motions; Hambly J. angry – advises mother is alienating father and child, would never have made Order for supervised and restricted access, requests father’s counsel get instructions as to time Mother should have with child if living with father, apparent Hambly is going to give day-to-day care to Dad and access to Mom; to all attendances upon client, her mother and brother Zamal; to negotiate Minutes of Settlement, client does not want to risk access only; explain appeal rights and process; client agrees to week about and other issues; to advising throughout, Final and Temporary Orders made by Hambly J.”
44It is clear that Mr. Buck concluded that the motions judge was displeased with the Applicant. As Mr. Buck deposed at para. 21 of his affidavit, it was obvious to him that the motions judge was “annoyed at the mother’s conduct, including the belief that she was alienating the child against the father”. As I will outline later in these reasons, this conclusion of Mr. Buck affected how he approached the motions judge thereafter and was the reason he did not later report the Applicant’s level of distress during the lunch recess.
45More importantly, as the Applicant and Mr Buck indicated in their evidence (which significantly accords with the evidence of the Respondent and Ms. Klodner described below), it was clear that the motions judge intended to change the primary residence of Ethan if he had the opportunity to rule on the issue.
46The Applicant deposed in para. 28 of her affidavit that she “was extremely distraught, crying and confused and had difficulty making any decisions”. She described herself as “so upset because it appeared that [the motions judge] was about to switch primary care of Ethan (then only two years old) from me to the Respondent”.
47In her affidavit, the Applicant described what transpired after Ms. Klodner offered to resolve the motion with a shared parenting arrangement. Paragraphs 34 and 35 of the Applicant’s affidavit set out the following:
When I returned to a private room to meet with Mr. Buck, he recommended that I sign the agreement. I initially refused and told Mr. Buck to let Justice Hambly rule. Mr. Buck reiterated again that I would not see my child and only get supervised access. I was overwhelmed and did not know what to do given the difficulties Mr. Buck had received from Justice Hambly, even with respect to a request for a short adjournment. Ultimately, I agreed to sign the consent agreement. I believed I had “no choice” at that time but to sign, as otherwise Justice Hambly would give primary custody of our child to the Father and he was only going to provide supervised access for me.
Although on a number of occasions, I refused to accept the consent that was being proposed to me, I finally signed the consent because of:
(a) The comments of Justice Hambly in open Court as to what he would do with respect to custody and access of Ethan given the opportunity to make a determination that day; and
(b) My emotionally fragile state at the time including my worry for the well being of Ethan, then only two years old.
48The Applicant deposed in para. 39 of her affidavit that she acted under duress when she signed the consent on May 31, 2011 “which duress was caused and contributed to by the demeanour and comments of Justice Hambly in open court”.
49On this motion, the Applicant’s lawyer emphasizes the following evidence from the Applicant’s cross-examination on her affidavit when she was queried about her consent:
- Q. Sorry. I don’t think you answered my question. My question was, do you believe having your son to parent 50 percent of the time, which is what the order says, a shared custody, is that better than what Justice Hambley [sic], you believe would have ordered? Which is primary residence to dad and you said, supervised access to you? Yes it is better? No it’s not better? I guess that’s what I’m looking for.
A. Yes it’s better than what Justice Hambley [sic] would have ruled.
- Q. Was that the reason why you signed the consent?
A. I had no choice. If you refer back to my affidavit? I was emotional. I was under a great deal of duress. And I had extreme worry for the well being of Ethan. Not only being his primary caregiver but knowing the violence and the anger and the aggression that Conrad had exhibited towards Ethan and myself during marriage. That – I had no choice. I had to sign it. And also because of what Justice Hambley had said in open court. ...
- Q. Right. So would it be fair to say that given those two options, you were well aware and cognisant that of those two choices, signing it was a better choice for you because you would be able to parent your son equally with the respondent?
A. I had no choice. Justice Hambley had a gun to my head. Worse, he had a gun to my child’s head. On the other side had made it very clear that there was no option, no negotiation. It was take it or leave it. There was nothing else that I could have done. I had to sign it. I had no choice. I was threatened by Justice Hambley in that courtroom. He made it very clear to me that he believed that primary residence should be given to the father. That I should be supervised. He was angry at me. He coerced that decision. So when you ask me, was it by choice, I had no choice. That was the only choice I had.
50The Applicant’s evidence as to how the comments of the motions judge affected her are corroborated fully by Mr. Buck. Mr. Buck deposed in para. 9 of his affidavit, that the Applicant was “upset and emotionally distraught and anxious” during his oral submissions and he “told her to relax and remain calm” and he asked her to maintain her composure in the court room.
51Mr. Buck further deposed in para. 11 of his affidavit that during the lunch recess he presented two options for the Applicant to consider: that the Respondent be given access in accordance with the earlier offer to settle, or let the motions judge rule but “given his comments, it appeared unlikely that [the Applicant] would succeed on the motion, and that she could then appeal to the Court of Appeal…I advised my client that this could be a lengthy process for her and in the interim, it appeared that the child would be in the primary care of his father.” Mr. Buck informed the Applicant that an appeal was a “long and expensive process”. He deposed at para. 12 that throughout these discussions the Applicant was “extremely distraught, shaking and crying”.
52Mr. Buck, on cross-examination described in more detail the Applicant’s reaction to his explanations of her options as follows:
I was explaining…that it appeared that he was going to put the child in the primary care of the father. And she cried. She cried for probably all the time we were in that room. She was hugely upset. She didn’t know what to do. Wringing her hands as well and just most anxious and distraught…(page 4 of transcript)
53In response to a further question Mr. Buck confirmed that these observations were made during the lunch recess after initial submissions had been made to the motions judge. Mr. Buck added:
As you know from the transcripts, [the motions judge] had asked me to ask of her what time she might like to have with the child if the child was in the father’s care. And asked Ms. Klodner to get instructions from her client as to what time he would feel the mother should have with the child if the child was in his care. And Ms. Ruffudeen couldn’t believe it. We, we – I couldn’t believe it. I don’t believe Ms. Klodner could believe it. Nothing was anticipated like this…I’d negotiated a consent that morning with Ms. Klodner which we’d handed up to [the motions judge] and which provided for the continued day to day residence of the child with Ms. Ruffudeen. And, and Ms. Klodner and I negotiated that…(page 5 of transcript)
54Mr. Buck outlined that over the luncheon recess Ms. Klodner advised Mr. Buck that her client’s “bottom line” was a shared custody arrangement on a final basis with Ethan residing with his parents on alternate weeks.
55Mr. Buck deposed in para. 13 of his affidavit that the Applicant was “visibly upset and crying” during her discussions with Mr. Buck respecting the Respondent’s proposal. As he further outlined in para. 14 of his affidavit, Mr. Buck advised the Applicant that in his opinion, “given my negotiations with the father’s lawyer, Ms. Klodner, the father was not prepared to negotiate further and the consent proposed was on a ‘take it or leave it’ basis, ‘they smelled blood’ given the comments of Justice Hambly in open court.”
56As a result, Mr. Buck advised the Applicant that her options were either to accept the Respondent’s proposal or to continue before the motions judge, permit him to make an order changing Ethan’s primary residence and then to launch an appeal. Mr. Buck twice recommended that the Applicant sign the consent but she refused to do so on both occasions. Mr. Buck then sought additional time from the motions judge as earlier outlined.
57On his cross-examination, Mr. Buck made reference to the movie “Sophie’s Choice” in describing the choices available to the Applicant as he saw them:
She [the mother in the movie] had to decide which of the two children was going to go to a concentration camp. And I’m mindful of that movie when I talk about this case. Because my client had to make a decision in circumstance that were completely unanticipated. That she’d never considered before and really had no time to consider and it was just impossible for her to comprehend that this child might be given to the father that day by Justice Hambley. And accordingly she was completely distraught...(page 9 of transcript)
58There is no question that Mr. Buck’s initial recommendation to the Applicant in relation to the Respondent’s proposal was that she should accept it. Even after she refused, he reiterated his recommendation that she should sign the consent. When she refused again, he, as set out in para. 17 of his affidavit “advised her that it was likely that the judge would only permit her to have supervised access to her child. This time the mother signed the consent…and we returned to court…”
59According to Mr. Buck as set out in paras. 18 and 19 of his affidavit, throughout his observations of the Applicant, she was “upset, anxious and continually crying. She appeared to have extreme difficulty in making any decision after I had explained to her the available options on more than one occasion. Clearly, the mother’s emotional state was chronologically related to the numerous comments made by Justice Hambly.”
60As Mr. Buck elaborated further on his cross-examination:
I asked for more time and it was clear that Justice Hambley was impatient to get this thing done. He made some reference to not keeping the, the, the court staff late. And he gave me ten minutes and she understood she had to make some sort of decision in this circumstance. In those ten minutes. And so she finally said, ‘I’ll go along with the consent because I can’t risk my son living day to day with his father.’ And I had explained to her that it might be a year before this thing was dealt with by a Court of Appeal. She did not want to risk that. She couldn’t conceive of the boy living with the father for a year or more. (page 16 of transcript)
61Mr. Buck made it clear on his cross-examination that in his view, the Applicant “was placed in a completely unfair position by the Court”. As he explained:
So my client was under complete duress I suggest to you. And had really no choice and even then had difficulty making a decision because not withstanding our discussions and our negotiations, we went back into Court. I still didn’t have instructions from her. She, she still didn’t agree to the week-about. I think it was very unfair for her to be placed in this situation and very difficult. She couldn’t make a decision. So I asked Justice Hambley if we could have some more time. And again, you’ve probably read the, the transcript of the hearing. I asked for a little bit of time and he, he said, ‘We’ll give ya ten more minutes Mister Buck and not a minute more.’ So then my client and I and the brother and mother got back together outside the courtroom in the anti-room outside number six. And further discussed it and she finally, and I – again I say she had no choice. She had no choice. She, she was either gonna (sic) go along with this week-about and on a final basis, or she was gonna let Justice Hambley rule. And if Justice Hambley ruled, the child was gonna be living day to day with the dad…(page 12 of transcript)
62Although Mr. Buck believed the Applicant was experiencing duress from the moment the motions judge posed his questions as to what access the Applicant should have if Ethan’s primary residence was with the Respondent, Mr. Buck acknowledged on cross-examination that in his view, the Applicant still had the legal capacity to give him instructions and she understood the consequences of her instructions.
63Mr. Buck described May 31, 2011 as “an unusual and…bizarre day”. Mr. Buck emphasized that counsel had negotiated a consent; that the parties had agreed to Ethan’s primary residence remaining with the Applicant on a temporary basis; and, while he clearly acknowledged that a consent requires the approval of the court, he made the notations he did in his docket because he considered the motions judge to have been angry and he “found his behaviour and demeanour to be very egregious towards [the Applicant]”. When asked why he did not put those observations and concerns on the record, Mr. Buck did not know why he had not done so, but added that the motions judge “was annoyed. Am I going to annoy him further? I think not.”
The Position of the Applicant on this Motion
64The Applicant emphasizes that since 2010, Ethan had lived with her and the parties had informed the motions judge that they consented to the continuation of the status quo.
65The Applicant’s position is that the motion judge’s expression of his conclusion that the Applicant was guilty of parental alienation and that he wished to hear submissions on the issue of primary residence despite the agreement of the parties on that issue constituted illegitimate pressure on the Applicant. The Applicant’s position is that the statements made by the motions judge “crossed the line of what is acceptable judicial conduct” and they constituted coercion and duress. The Applicant submits that when examined in its entirety, the motions judge exceeded the bounds of appropriate judicial conduct and his order cannot stand.
66While the Applicant acknowledges that the facts that she now relies on were present before she consented to the order in question, her position is that it is appropriate to take into account the fact that her state of mind during the hearing, the lunch recess and shortly thereafter, was such that she was in a vulnerable position and did not appreciate how the circumstances impacted her ability to give her consent.
67As the Applicant’s lawyer put it, in the “heat of the moment” the Applicant could not know that she was improperly coerced. She asserts that as a result of what she describes as inappropriate judicial conduct, her consent was unfairly extracted.
The Evidence of the Respondent and Ms. Klodner
68As outlined in her affidavit filed on this motion, Ms. Klodner did not see any emotion from the Applicant, throughout the proceeding. The Respondent outlined similar evidence in his affidavit. Ms. Klodner deposed that according to her observations, everyone was quiet in the courtroom.
69As the Respondent and Ms. Klodner acknowledged, they had no opportunity to see how the Applicant was affected when she was in a private room with her mother, brother and Mr. Buck.
70Ms. Klodner also confirmed that she was never advised by Mr. Buck that the Applicant was “emotionally distraught, shaky and crying” and at no time during Mr. Buck’s request for additional time, which she had readily agreed to, was she advised that the Applicant was distraught.
71Ms. Klodner confirmed that she advised the Respondent that it was likely that the motions judge would switch primary custody from the Applicant to the Respondent given his comments prior to the lunch break. Ms. Klodner queried the Respondent as to whether he would be prepared to consent to a shared custody regime, notwithstanding her belief that the motions judge would order that Ethan’s primary residence be with him. Ms. Klodner deposed that the Respondent was agreeable to such a shared custody regime but wanted finality.
72As Ms. Klodner emphasized in her affidavit, she and Mr. Buck worked together on the consent respecting the shared custody arrangement. She found it appalling for Mr. Buck to allege that “they smelled blood” because it was Ms. Klodner who suggested to Mr. Buck that it was best for Ethan to have his parents equally involved notwithstanding the comments of the motions judge and it was the Respondent who made a significant compromise that day in Ethan’s best interest to end the custodial litigation for this very young child.
73The Respondent confirmed he gave his instructions to Ms. Klodner to offer a shared agreement within 15 to 20 minutes from the start of the lunch recess. It was his understanding that Ms. Klodner and Mr. Buck jointly negotiated the terms of the consent. As the Respondent deposed, he proposed the shared custody arrangement because he thought it was in Ethan’s best interest. As he further deposed in para. 54 of his affidavit after referring to Mr. Buck’s level of experience and specialization:
“the fact that Mr. Buck had the Applicant sign the consent and then present it to the presiding Justice in front of his client that she was in agreement with the terms clearly meant that the Applicant understood what she signed and Mr. Buck was of the opinion that she was capable of signing the consent at the time”.
74As the Respondent also deposed in para. 56 of his affidavit, if Mr. Buck or the Applicant was not in agreement with the proposed consent, they did not have to sign.
The Position of the Respondent on this Motion
75A concise statement of the Respondent’s position is set-out in para. 7 of his factum as follows:
The alleged source of the coercion is Justice Hambly, and it arises from Mr. Buck’s stated belief that Justice Hambly was poised to grant custody and primary residence of the child to the father, with supervised access to the mother. The proceedings were part of legitimate curial process, which said process was chosen by the Applicant for the resolution of her dispute. It is the motions judge’s purview, over the course of the hearing, to make decisions about the credibility of the parties and of the materials the said parties have submitted, and these findings are granted a high level of deference. The belief that a motions judge might make an adverse finding on the basis of his consideration of the materials and the arguments presented, and that such adverse finding would result in a change to the child’s primary residence by way of mitigating the judge’s concern over the mother’s attempt to alienate the child from the father, does not constitute duress or coercion – let alone illegitimate coercion – when it is part of a legitimate curial process in which the parties have been represented by counsel.
76The Respondent’s position is that having formed impressions after reading the materials and having heard from the Respondent’s lawyer, it was fair and reasonable for the motions judge to raise the issue of parental alienation.
77The Respondent points out that while the parties had some negotiation and agreed on certain things, the issue of access remained outstanding and the Applicant chose the court forum for that issue to be dealt with and understood the first consent Ms. Klodner presented to the court was subject to court approval.
78The Respondent emphasizes that his proposal to resolve the motion did not mirror what everyone believed the motions judge was going to order. The Respondent emphasizes that his proposal was different and, more importantly, better than the two options Mr. Buck indicated were open to the Applicant. The Respondent’s proposal offered a brand new alternative for the Applicant, which the Respondent submits undermines her claim of duress.
79The Respondent emphasizes that there was no indication given to anyone who participated in the process that the Applicant was acting under duress. As the Respondent’s lawyer noted, family law cases are filled with turmoil, stress and tension, and legitimate pressure is felt by all litigants.
80Finally, the Respondent’s position is that even if there is a finding of duress, the consent order should not be set aside because nothing in its terms departs from these statutory objectives respecting custody and access.
The Law
81The parties are in agreement that a consent order is a contract and can only be varied on a ground which would invalidate a contract (see Chitel v. Rothbart, (1984) 432 CPC 217 (ONHCJ) at para. 25).
82It is also agreed that duress is a sub-set of unconscionability and in order for the Applicant to rely on duress as the basis to set aside her consent, she must prove that she was subjected to illegitimate pressure to such a degree that her will was coerced.
83To put it another way, the Applicant must establish that illegitimate pressure put her in a position where she had no realistic alternative but to agree. (See Stott v. Merit Investment Corp., 1988 CanLII 192 (ON CA), 25 OAC 174; 63 OR (2d) 545 (C.A.) at para. 48 and Taber v. Paris Boutique & Bridal Inc., 2010 ONCA 157 (OCA) at para. 9.
84In Stott at para. 48 the Court of Appeal emphasized that:
“not all pressure, economic or otherwise, is recognized as constituting duress. It must be a pressure which the law does not regard as legitimate and it must be applied to such a degree as to amount to a ‘coercion of the will’, to use an expression found in English authorities, or it must place the party to whom the pressure is directed in a position where he has no ‘realistic alternative’ but to submit to it…duress has the effect of vitiating consent and an agreement obtained through duress is voidable at the instance of the party subjected to the duress…
85This reasoning in Stott was applied in the more recent decision of the Court of Appeal in Taber where citing Stott the court stated at para. 8 and 9:
“there is no doubt that economic duress can serve to make an agreement unenforceable against a party who was compelled by the duress to enter into it. Nor is there any doubt that the party can have the agreement declared void on this basis. However, not all pressure, economic or otherwise, can constitute duress sufficient to carry these legal consequences. It must have two elements: it must be pressure that the law regards as illegitimate; and it must be applied to such a degree as to amount to ‘a coercion of the will’ of the party relying on the concept.
86In Taber the fact that the plaintiff’s lawyer denied re-entry to the defendants unless they signed the Minutes of Settlement was found to be “routine conduct by a lawyer” in advancing a client’s position and it was plain and obvious that such conduct was not elevated to a level that the law regards as illegitimate (see para. 10).
87The requirement that the Respondent be aware of the duress or coercion where he was not the perpetrator of such duress or coercion is made clear in Brooks v. Alker, 1975 CanLII 423 (ON SC), 9 OR (2d) 409 (SCJ) at p. 35 where the Court quoted English jurisprudence which indicated that “where the alleged duress is that of a person other than the person contracted with, it must be shown that the duress by which the contract was procured was shown to the Plaintiff when they entered into the contract.”
88The Respondent has referred me to Davis v. Cooper [2010] O.J. No. 3309 at para. 13 for a similar proposition that “a settlement will not be set aside unless it is shown the other parties to the agreement had knowledge of the duress”. The Respondent submits that this case is also important for its statement and citation of an earlier decision of the Ontario Court of Appeal that there is a “distinction between “stress” and “duress” and that stress is “not a ground to decline to enforce a contract”.
89Many of the forgoing cases were reviewed in the decision in Pytka v. Pytka Estate, 2010 O.J. No. 4907 (S.C.J.). The decision in Pytka Estate makes clear the importance of having an alternative option which mitigates a claim of duress.
90In Van Kruistum v. Dool, 1997 CanLII 12284 (ON SC), 35 OR (3d) 430 (SCJ) at para. 50, Riley J. set out the following factors as being relevant to a consideration of whether the party seeking relief was coerced:
- In considering whether the will of the party seeking relief was coerced, the Court must consider:
i. Did the party protest at the time the contract was entered into?
ii. Was there an alternative course available to the party?
iii. Did the party receive independent legal advice?
iv. After entering the contract, did the party take steps to avoid it?
Conclusions
91I am mindful of the fact that the Applicant had the benefit of independent legal advice from Mr. Buck who has 37 years of experience and is an expert in Family Law. I am also mindful of the fact that Mr. Buck informed the Applicant that the Respondent’s proposal was a better option than the alternatives he had outlined to her at the commencement of the lunch recess and that he recommended that she consent to that proposal. As the Respondent emphasized, it is fair to say that the order in issue is one that experienced counsel recommended the Applicant accept. However, I am also mindful of the fact that these circumstances are distinct from those where a litigant has simply changed her mind.
92The evidence is clear that Ms. Klodner and the Respondent acted appropriately and the Respondent was motivated by his view of what was in Ethan’s best interest. The evidence is also clear that Ms. Klodner and the Respondent were not aware that the Applicant was under duress.
93The Applicant, quite properly, makes no complaints of improper conduct on the part of the Respondent or Ms. Klodner, but rather submits that coercion and pressure was exerted by a third party, namely the motions judge. This coercion occurred in the presence of the Respondent and Ms. Klodner.
94The fact that Ms. Klodner and the respondent did not appreciate the significance of its impact on the Applicant does not resolve the problem. In other words, the fact that the Respondent and Ms. Klodner thought that the Applicant was freely signed the consent without pressure from either of them, or anyone else, is not enough.
95It is also clear that based on his rejection of the parties’ original consent and his views on the materials in the continuing record reflected in his comments at the hearing and in his written reasons, the motions judge had, as the Applicant’s lawyer put it, “made up his mind” that the Applicant was acting inappropriately in alienating Ethan from the Respondent but more importantly, had also decided he would change Ethan’s primary residence if he was going to rule on the issue. The Applicant, the Respondent, Mr. Buck and Ms. Klodner all reached that conclusion.
96On May 31, 2011, the Respondent did not seek an order changing the primary residence of Ethan to his home. The Respondent did not seek an order that the Applicant’s access be supervised.
97While it was clearly open to the motions judge to reject the original consent endorsement request if it was not in Ethan’s best interest, the Applicant alleges that the motions judge offered opinions and conclusions before any submissions were made, although the Respondent characterized those comments as impressions.
98In any event, based on the agreement between the parties prior to their attendance before the motions judge, the Applicant believed that a traditional type of access would be ordered for the Respondent because that was in fact what the Respondent was seeking.
99Changing Ethan’s primary residence from the Applicant to Respondent was an arrangement which was significantly different from the consent endorsement request presented to the motions judge at the commencement of the hearing.
100I think it is fair to say that it is very clear on the evidence that the comments of the motions judge coerced the settlement. Indeed, he made it clear in his reasons that after hearing his views the parties settled the custody and access dispute. As I noted previously, the reasons of the motions judge reveal that he recognized that his expression of his views had a significant impact on the parties leading to their consent to the May 31, 2011 order. The more difficult question is whether his coercive comments and the resulting pressure on the Applicant were “illegitimate”.
101I am very mindful of the fact that it is not for this court to stand in judgment of the conduct of the motions judge. I am also mindful of the fact that the motions judge was genuinely motivated to assist the parties to resolve their dispute amicably, without further litigation. In my view, he offered his candid reflections to help the parties. However, in the circumstances here: where the parties had reached a temporary agreement; when cross-examinations were scheduled two days hence; when the assistance of an expert was contemplated; when no court had considered the issues of custody and access on their merits; when the motions judge was apparently going to order something which the Respondent was not then seeking; when the Applicant was under a time constraint, I think it is fair to say that the motions judge did not present as a neutral referee who only expressed preliminary impressions, views or concerns and the resulting pressure placed on the Applicant was illegitimate and coerced her will. I am satisfied therefore that paras. 1 to 4 of the May 31, 2011 order should be set aside.
Relief sought by the parties if paras. 1 to 4 of the May 31, 2011 order are set aside.
102As previously set-out, the Applicant “backed away” from the more expanded relief sought on her notice of motion and confined her submissions to setting aside paras. 1 to 4 of the May 31, 2011 order.
103At the hearing of this motion, I requested submissions from both counsel with respect to custody and access if paras. 1- 4 of the May 31, 2011 order were set aside.
104The parties disagree on whether Ethan has benefitted from the arrangement ordered on May 31, 2011. The Respondent put forward evidence on this motion that the arrangements made May 31, 2011 have been positive for Ethan. The Applicant provides a different perspective in her reply.
105If paras. 1 to 4 of the May 31, 2011 order were set aside, the Applicant’s position is that an order should be made reflecting what the parties had agreed to at the commencement of the hearing of the motion on an interim basis.
106The Applicant notes that she proceeded with her appeal and this motion as quickly as possible. She filed her appeal in June 2011. She brought this motion in June 2012 as soon as the required evidentiary affidavits had been filed and cross-examinations were completed. It is her position that the decision produced by duress ought not to be upheld.
107On the other hand, the Respondent’s position is that if paras. 1 to 4 of the May 31, 2011 order were set aside, the terms of that order should continue on an interim basis. He submits that there is nothing in the May 31, 2011 order that departs from the statutory objectives set out in the applicable legislation. It is his position that the status quo that has existed since May 31, 2011 should not be disturbed.
108In my view, as a result of paras. 1 to 4 of the May 31, 2011 being set aside, the relief granted in such paras. must also be set aside.
109As a result, an order will go on a temporary basis reflecting what the parties had outlined in the original consent endorsement request placed before the motions judge on May 31, 2011. A case conference should be scheduled on an urgent basis to have the benefit of a judge’s input on the substantive issues, as well as to provide guidance and direction for the scheduling of any anticipated motions.
Costs
110I heard no submissions on the issue of costs. My preliminary view is that in the unique circumstances of this motion, there should be no award of costs against either party. My preliminary view will be reconsidered if the parties wish to make submissions on costs, which they may do in writing within the next 30 days.
Justice L. C. Leitch
Released: December 6, 2012
COURT FILE NO.: 44872-10
DATE: 2012/12/06
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ANEESA NADIA ZAMALUDEEN RUFFUDEEN-COUTTS
Applicant
– and –
CONRAD MICHAEL COUTTS
Respondent
REASONS FOR JUDGMENT
Leitch J.
Released: December 6, 2012