Court File and Parties

Court File No.: 04449-09
Date: 2012-12-27
Superior Court of Justice – Ontario

RE: S. Fraizinger, Applicant/Mother

AND:

D. Mensher, Respondent/Father

BEFORE: Ricchetti, J.

COUNSEL:
Counsel, for the M. Sager
Counsel, for the E. Treslan

HEARD: December 19, 2012

ENDORSEMENT

THE MOTION

[ 1 ] There are two motions before the court.

[ 2 ] The first motion is by the Mother seeking an order establishing a parenting schedule as set out in the Notice of Motion dated November 14, 2012. Essentially, the Mother seeks parenting time in accordance with a 4 week schedule as follows (excluding holidays):

• Week 1 – Friday after school to Monday am;

• Week 2 – Wednesday after school until Monday am;

• Week 3 – Friday after school until Monday am; and

• Week 4 – Wednesday after school until Friday before school.

[ 3 ] The second motion is by the Father seeking a dismissal of the Mother’s motion, on order directing the parties proceed to mediation, an order instituting a schedule for 2013 and striking out paragraph 16 of the Mother’s affidavit of November 14, 2012.

[ 4 ] It is very important to note that the issues in these motions do not deal with competing claims as to what is in the “best interests” of the Child. In other words, the Mother does not allege that the Child’s best interests would now be served by a variation of the October 2010 Order. Both parties seek to enforce the October 2010 Order - their interpretation of the said order.

THE POSITION OF THE PARTIES

[ 5 ] The Mother states her proposed schedule represents approximately 50% of the parenting time and complies with the intent of this court’s order dated October 20, 2010.

[ 6 ] The Father essentially seeks an order that this court’s order dated October 20, 2010 be enforced. The Father also seeks a specific ruling regarding the striking of paragraph 16 of the Mother’s affidavit of November 14, 2012.

THE FACTS

[ 7 ] The parties were married on December 4, 1993. The parties separated on October 26, 2008.

[ 8 ] There is one child of the marriage, Madeline Mensher (dob […], 2003) (“Child”)

[ 9 ] The Mother commenced the Application on October 14, 1009. The Mother sought sole custody of the child and to relocate to Toronto with the Child.

[ 10 ] The Father sought joint custody and sought primary residence with the Child.

[ 11 ] The parties, both represented by counsel at the time, entered into final Minutes of Settlement on October 20, 2010 which included the following:

a) The parties were to have joint custody of the Child. The Child was to “live with both parents equally and to attend school in Port Elgin”;

b) The parties were to cooperate each year, prior to the commencement of the school year, to agree on residential arrangements for the school year with the following parameters:

a) Allow for a “close to a 50%-50% division with Madeline spending “primarily” weekdays with Father and weekends with Mother;

b) Weekends were defined as Thursdays 7 pm to Sunday 7 pm, unless otherwise agreed to;

c) The Child was to spend every 4 th weekend with the Father;

d) The Child was to spend March break with the Mother;

e) The Child was to spend Summer break divided equally into two week periods;

f) The Child was to spend the School Christmas holidays with the Mother;

g) The Child was to spend New Years with the Father in alternating years;

h) The Child was to spend other statutory holidays with the Mother to give her the approximately 50% of parenting time;

i) The Child was to spend PA and other school holidays with the Mother first to give her the approximately 50% of parenting time; and

j) The Father was to spend some holiday time with the Child throughout the year.

c) A provision for resolving disputes as follows:

If there is any disagreement, the parties agree to pursue mediation and if necessary arbitration to resolve a dispute. If mediation does not resolve the dispute and parties do not agree to arbitration, either party is free to commence a court application. The old residential schedule shall remain in place until a new one is agreed upon, ordered by arbitration or by the court.

d) Neither party was to move their residence to increase the travel times for the Child; and

e) No child support was payable.

[ 12 ] The Minutes of Settlement contained a parenting schedule for 2011but not beyond 2011.

[ 13 ] The Minutes of Settlement were embodied into a Final Order of this court dated October 20, 2010. (October 2010 Order)

[ 14 ] At the time of the Minutes of Settlement the parties lived in Kincardine and fairly close to each other and the Child’s school.

[ 15 ] The Father purchased the Mother’s interest in the matrimonial home. This permitted the Child to remain in the “family home” during the school year and remain at the same French-Immersion school in Elgin (and to which it was expected the Child would continue until Grade 8 unless agreement or court order to the contrary).

[ 16 ] The Mother’s employment changed in 2011. By August 2011 the Mother sought changes to the parenting time set out in the October 2010 Order. A disagreement ensued.

[ 17 ] As a result, the Mother commenced a Motion to Change the October 2010 Order in Newmarket seeking that the Child live with her in Thornhill, Ontario, attend school there and live with the Father on the weekends. In other words, less than one year after the October 2010 Order, the Mother sought a complete change of the parenting time set out in the October 2010 Order. The Mother brought this motion in Newmarket. It is not clear why the motion was brought in Newmarket given the Child’s residence and schooling set out in the October 2010 Order.

[ 18 ] It is clear that the Mother no longer was happy with the terms of the October 2010 Order. She brought the Motion to Change in Newmarket and then sought to negotiate a change with the Father, but with the threat of the outstanding Motion to Change.

[ 19 ] There were considerable negotiations over the following months while this Motion to Change remained outstanding. The parties were able to agree on a parenting schedule to January 02, 2013.

[ 20 ] The Mother’s employment changed in early 2012. She returned to Kincardine. The Mother sought to move the Motion to Change from Newmarket to Bruce County.

[ 21 ] The negotiations continued with no success.

[ 22 ] Sometime in the fall of 2012, the Mother abandoned the Motion to Change. Costs remain an outstanding issue.

[ 23 ] The Mother brought this motion.

[ 24 ] The Mother sets out in her affidavit (paragraph 16) the negotiations, with details of the respective positions of the parties to the changes to the parenting schedule to settle the Motion to Change and this motion. The correspondence between the parties and their counsel is attached to the Mother’s affidavit. Some of the communications were “without prejudice”. Some of the communications have redacted portions. Clearly, not all the communications are set out in the Mother’s affidavit. The only purpose served by inclusion of this material was to show the Mother as being reasonable, making reasonable offers to resolve the parenting schedule and to show the Father as unreasonable.

[ 25 ] The Mother has not brought a Motion to Change the October 2010 Order. Her position on this motion is not to vary the October 2010 Order but to enforce it with her proposed parenting schedule. In the alternative, the Mother is agreeable to a “weekabout” parenting arrangement except for the summer holidays.

[ 26 ] The Father’s initial position was to obtain a dismissal of the Mother’s motion on the basis that the matter should proceed to mediation in accordance with the October 2010 Order (although Father’s counsel agrees that he does not want to proceed with futile mediation given the Mother’s absolute refusal to proceed with mediation).

[ 27 ] The Father proposes a four week cycle which, he says, is consistent with the specific parameters of the October 2010 Order.

THE ANALYSIS

Paragraph 16 of the Mother’s Affidavit

[ 28 ] I agree with the Father, the materials set out in paragraph 16 of the Mother’s affidavit are inappropriate and should be struck.

[ 29 ] It is clear that:

a) The communications were made when there was outstanding litigation which the parties were trying to settle and the communications were for the purpose of resolving that litigation, whether it be the Motion to Change or the motions the parties now find themselves in. The communications show the parties respective positions including what compromises each party was prepared to make and what compromises each party was not prepared to make;

b) All communications between the parties and their counsel were not fully included;

c) In some cases, some of the communication was redacted;

d) At the very minimum, some of the communications between the parties and counsel were not intended to be disclosed should the parties not be able to come to an agreement. In other words they were bona fide attempts to settle the litigation and implicitly, confidential; and

e) The communications were included in the affidavit solely for the purpose of demonstrating the reasonableness of one party’s negotiating position as opposed to the other party’s negotiating position with respect to the issues now before this court.

[ 30 ] As set out in Bercovitch v. Resnick, 2011 ONSC 3397 (leave refused 2011 ONSC 5082), negotiations between parties involved in litigation are privileged and disclosure in the proceeding is abusive.

The analysis of Master Macleod in Belsat brings the issue before me into clearer focus. There he notes with respect to offers to settle:

21 ... I agree however that there should be no reference to offers to settle the litigation. It is the policy of the Court to promote voluntary settlement and the Court should jealously protect bona fide settlement discussions. This policy is clearly enunciated by Hollingworth, J. speaking for the Divisional Court in Eccles v. McCannell (1984), 44 C.P.C. 43 at p. 45 where he quotes with approval from Sopinka & Lederman Law of Evidence in Civil Cases.

"... In furthering these objectives [of compromise without resort to trial] the courts have protected from disclosure communications 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 that they would be prepared to offer could be used to their detriment if no settlement agreement was forthcoming."

22 In Canadian Gateway Development Corp. v. National Capital Commission [2002] O.J. No. 3167 , my colleague Master Beaudoin held that pleading the contents of a settlement discussion should be struck out as scandalous, frivolous or vexatious. He also cited Sopinka & Lederman with approval. The conditions under which settlement discussions will be privileged are as follows:

a) litigation must be in existence or within contemplation;

b) the communication must be made with the express or implied intention that it would not be disclosed to the court in the event negotiation failed; and,

c) the purpose of the communication must be to attempt to effect a settlement.

[ 31 ] The principle was concisely set out by Justice Campbell, in the Bercovitch leave motion, supra:

The accepted purpose of this rule of privilege is that communications that are made "without prejudice", or offers clearly made for the sake of "buying peace" between the parties, or to effect a compromise or settlement of a dispute, are inadmissible in evidence, as the admission of such evidence is "against public policy as having a tendency to promote litigation, and to prevent amicable settlements". See: Pirie v. Wyld (1886), 11 O.R. 422 (H.C.J., Com. Pl.) at p. 427 ; Rush & Tompkins Ltd. v. Greater London Council , [1988] 3 All E.R. 737 (H.L.) at pp. 739-740 .

[ 32 ] In addition to this court’s concern disclosure of confidential and privileged settlement communications, this court is also concerned that the Mother did not fully disclose all the communications and, in fact, redacted certain portions of some communications. I accept the Father’s submissions that this creates a further unfairness which could have only been overcome by the Father making similar improper disclosure of settlement communications to counter the Mother’s one sided disclosure. No doubt it would be an impossible and unnecessary task for this court to try and determine this collateral issue as to which party was the most unreasonable in its bargaining position. Fortunately, the Father did not choose to follow the Mother’s example but rather sought to strike out paragraph 16 of the Mother’s affidavit.

[ 33 ] Paragraph 16 of the Mother’s Affidavit of November 14, 2012 is hereby struck.

The Mother’s Motion

[ 34 ] The Mother suggests her motion is “tweaking” the October 2010 Order. I disagree. It is a significant change to the said order. It seeks to ignore the mandatory provision for the parties to mediate the parenting schedule if they could not come to an agreement. It is very different than the arbitration provision which requires both parties to agree to arbitration. More importantly, the Mother seeks to vary clear and unambiguous parameters of the parenting time the Mother agreed to and this court ordered.

[ 35 ] Let me deal with each of these issues.

Mediation

[ 36 ] The Mother states that mediation is not necessary and this court has the discretion to set a parenting schedule, despite the fact mediation has not taken place. I agree with the Mother’s counsel’s submission that this court will not generally (absent statutory authority or contractual agreement) force parties to mediate litigious issues. However, where the parties have agreed that mediation is a precondition to either party seeking judicial relief (and it became a court order), the courts will and should enforce such a provision unless there are compelling reasons not to.

[ 37 ] In this case, the parties agreed to mediate future disputes over parenting schedules. This is an order of this court. The Mother simply wants to disregard what she agreed and what this court has ordered. She would prefer to litigate the issue.

[ 38 ] The Mother blames the Father for delaying the mediation but I do not see this as being entirely accurate. Moreover, the Mother could have brought a motion to force the Father to mediate putting the Father at risk for a significant court order for disregarding the October 2010 Order. I do not accept the Mother’s explanation as a justification for the position she now takes.

[ 39 ] Mediation as a method of resolving family disputes is, not only a recognized manner for resolving family disputes, it is encouraged by such provisions as the requirement of Case and Settlement conferences. Recently, despite the current fiscal challenges faced by the government, the government has made available considerable financial resources to encourage and make available mediation resources to family litigants. Mediation services (in many cases without charge) are now available at many courthouses throughout the province to provide immediate mediation services to family law litigants.

[ 40 ] The appropriateness and reasons for alternative dispute resolution in family cases was recently described by Justice Nolan described in Wainwright v. Wainwright, 2012 ONSC 2686 at paras 130 and 131:

Alternative dispute resolution is appropriate in many family law cases. Parties are encouraged to explore alternatives to litigation to resolve their differences. The process of litigation can sometimes create animosity between parties, even when there was none before. If that happens, the victims are their children. Many separating parents do not come to court except to obtain a divorce on an uncontested basis after arriving at a resolution of all the issues between them by way of a separation agreement. Parties are free to contract with each other to settle issues including custody and access, child support, and all other issues arising from their separation. Such cooperation is to be encouraged. Changes to the Family Law Rules , O.Reg. 114/99, introduced as a result of the new Family Law Initiatives announced by the Ministry of the Attorney General in December 2010, were implemented on September 1, 2011. They provide a mechanism for parties who are separating to learn more about litigation, the alternatives to litigation and how and where to obtain the services of a mediator.

Mandatory Information Programs are in place in almost every court location in the province. In addition to providing general information about separation and divorce as well as property and support issues, separating parents who have children are required to attend a second part of the mandatory program which deals specifically with the effect of separation on children and how conflict between the parents impacts on their children. As well, free on-site mediation services are available at most court locations to assist parties in arriving at their own solutions which may then be incorporated into a consent order. Off-site mediation on a sliding fee scale is also made available to separating parties to deal with all issues arising from their separation.

[ 41 ] Here, the parties themselves agreed on the precondition of mediation before returning to court. A perfectly proper and appropriate way to attempt to resolve any dispute the parties might have. The Court agreed and included this in its final order. As I stated above, there would need to be compelling reasons why this court should permit one of the parties to simply ignore the provision in the October 2010 Order requiring a mediation before further judicial intervention.

[ 42 ] I repeat what I said above, this is not a case where the court is invited to intervene, despite a final order, because it is not in the child’s present best interests for the provision in the final order to be enforced. This is simply a dispute over parenting time between the two parents.

[ 43 ] I accept the Mother’s counsel’s submissions that this court has, in appropriate circumstances, residual discretion to deal with process issues to ensure that cases are dealt with justly. The difficulty is that there are no compelling, let alone reasonable reasons, for simply ignoring the requirement that the parties mediate any parenting scheduling issues.

Should the Motions be adjourned?

[ 44 ] The difficulty now faced by this court is that an adjournment and direction that the parties proceed to mediation will likely do two things: have this matter back before the courts within a matter of months and, more importantly, the parenting schedule expires on January 2, 2013 causing uncertainty as to what happens to parenting time after that date. It simply would not be fair to the Child, or in her best interests, to leave this uncertainty and dispute to continue while the parties proceed through futile mediation.

[ 45 ] I am aware that the October 2010 Order requires that the parenting schedule continues until agreement or further court order. However, given the respective and conflicting positions of the parties, this does not leave certainty as to what would happen post January 2, 2013 absent a court order.

[ 46 ] The Mother invites this court to fix a 2013 parenting schedule. The Father, while his initial position was to require the matter to proceed to mediation, counsel admitted in his final submission that the Father was willing to forgo mediation since the Mother didn’t want to go to mediation. As a result, the Father also invited this court to fix a 2013 schedule as set out in his affidavit.

[ 47 ] I will set a 2013 parenting schedule. For any future disputes regarding a parenting schedule, the parties must comply with the October 2010 Order, as that order remains in force.

What is an appropriate 2013 Parenting Schedule?

[ 48 ] The Mother submits her proposed parenting schedule is “tweaking” the October 2010 Order parameters. The Mother seeks to “stretch” the weekend time from Thursday nights to Wednesday nights. In other places she extends the weekends to Monday. This is not tweaking. The October 2010 Order specifically defines a “weekend” as Thursday 7 pm to Sunday 7 pm. This is nothing more than the Mother trying to get one more parenting day – Wednesday evenings or Sunday overnights.

[ 49 ] The Mother says this will bring it closer to 50-50 which is what the October 2010 Order provides. The Mother disregards the balance of her parenting time which was negotiated: The Mother has parenting time 3 out of 4 weekends, the Mother has parenting time every Xmas holidays and alternating New Years, the Mother has parenting time every March break, the Mother has first call for parenting time on PA and other statutory holidays. It simply appears that the Mother having obtained considerable “choice” parenting time with the Child now seeks to get more time without giving up her parenting time every Xmas, every March Break....

[ 50 ] I agree with the Father the terms were negotiated and absent agreement, should be enforced.

[ 51 ] I do not see the parameters set out in the October 2010 Order as being unfair or so far off the 50-50 the Mother complains of when you take into account her additional parenting time which includes the PA, statutory holidays etc.

[ 52 ] Over the course of the entire year, any difference in the amount of parenting time each party has with the Child is not significant.

[ 53 ] There is simply no reason not to enforce the October 2010 Order.

CONCLUSION

[ 54 ] The 2013 parenting time shall be as follows:

a) Mother - January 3, 2013 7pm to January 6, 2013, 7pm;

b) Starting January 6, 2013 the 4 week parenting cycle shall be as follows:

I. For 3 weeks, the Father shall have parenting time from Sunday January 6, 2013, 7 pm to each Thursday 7pm. The Mother shall have parenting time from 7 pm Thursdays to 7 pm Sundays.

II. For the 4 th week, the Father shall have parenting time from Thursday 7pm to Sunday 7pm while the Mother shall have parenting time this week from Sunday 7pm to Thursday 7pm.

III. The four week cycle will then repeat.

c) the Mother shall have parenting time during March break;

d) Each parent shall have equal parenting time during the summer school break divided equally into two week periods;

e) The Mother shall have parenting time during the School Christmas holidays;

f) The Father shall have parenting time during New Years;

g) The Mother shall have parenting time for the remaining statutory holidays; and

h) If the parents cannot agree otherwise, the Mother and Father shall alternate PA and other school holidays. I make this clarification of the October 2010 Order because, while the Mother was to have parenting time during the PA and other holiday, the next provision in the October 2010 Order required the Father to have some holidays – and the likelihood of agreement in this regard, appears remote. This provision will therefore achieve some holiday time for the Father if they cannot agree but still preserve a large portion of these times for the Mother to bring her closer to 50-50 parenting time.

[ 55 ] The above schedule was only intended to vary the parenting time set out in the October 2010 Order in paragraph (h) with a hope to avoiding further disputes between the parties.

COSTS

[ 56 ] Any party seeking costs shall serve and file written submission on entitlement and quantum within two weeks of the release of these reasons. Written submissions shall be limited to 3 pages, with attached Costs Outline and any authorities.

[ 57 ] Any responding party shall have one week thereafter to serve and file responding submissions. Written submissions shall be limited to 3 pages with any authorities relied on attached.

[ 58 ] There shall be no reply submissions without leave.

Ricchetti, J.

Date: December 27, 2012