Mungal v. Mungal, 2014 ONSC 7107

COURT FILE NO.: FS-14-1638-00

DATE: 20141208

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Naadira Mungal and Darryl Mungal

BEFORE: Justice Ricchetti

COUNSEL: Both parties are self-represented.

HEARD: December 1, 2014

ENDORSEMENT

1The respondent’s appeal is allowed with respect to the issues of custody and access only.

2A background is necessary to understand the scope of this order and the reasons for it.

3On April 29, 2010, Justice Dunn issued a final order on consent with respect to the issues of custody and access. Both parties were represented by counsel. Only ongoing child support and arrears remained outstanding.

4Justice Dunn issued a further final order on January 13, 2012 dealing with child support and arrears. Child support was to end on December 1, 2011 as the father was, at the time of the order, unemployed and on social assistance. The court ordered the Father to advise the Mother if he went off social assistance.

5In late 2012, the Father brought a motion to change seeking to rescind all child support arrears. The Mother raised the issue of ongoing child support. Issues of custody and access also became an issue in the motion to change.

6Justice S. Clarke dealt with the financial issues on February 12, 2014. He released his decision on February 27, 2014.

7On the remaining issues (custody and access), Justice Clarke ordered a further settlement conference. The settlement conference took place on March 24, 2014.

8On March 24, 2014, Justice Clarke issued an endorsement that the matter had been resolved. Pursuant to Justice Clarke's order, a number of terms of Justice Dunn’s order of April 29, 2011 continued in force while other terms were “terminated and replaced” with terms agreed upon by the parties.

9The Father appealed both the February 27, 2014 and March 24, 2014 orders of Justice Clarke.

10The appeal of the February 27, 2014 order was heard on July 21, 2014 by Regional Senior Justice Van Melle. She dismissed the Father’s appeal as it relates to the February 27, 2014 Order of Justice Clarke. However, Regional Senior Justice Van Melle adjourned the balance of the appeal (the custody and access issues) to permit a transcript of the settlement conference on March 24, 2014 to be available to this court on the appeal.

11The appeal on the custody and access issues decided by Justice Clarke on March 24, 2014 was heard by me.

12The “resolved” issues before Justice Clarke involved the inevitable “bargaining” on various custody and access issues. Setting aside the bargain achieved by agreement on March 24, 2014, is a difficult hurdle for either party to overcome on appeal.

13The three primary issues raised by the Father are:

1. He didn’t understand what he had agreed to;

2. He was under duress; and

3. Justice Clarke was biased.

14Issue #1 is quickly dispelled by a reading of the transcript. The Father clearly understood the terms of what had been agreed to. I do not accept this submission.

15With respect to Issues #2 and #3, there is absolutely no evidence that the Father was pressured into settling amounting to duress at law or that Justice Clarke was biased. Justice Clarke proceeded appropriately to identify the issues and encourage the parties to resolve those issues.

16The result would appear to be a dismissal of the Father’s appeal. Unfortunately, that is not the case.

17Justice Clarke’s March 24, 2014 Order terminated certain provisions in the Order of Justice Dunn of April 29, 2010. During the course of argument, it became apparent that some of the provisions terminated by Justice Clarke were not discussed or agreed to on March 24, 2014.

18The Father's approval of the order was dispensed with so it cannot be said that he had agreed to what Justice Clarke ordered on March 24, 2014.

19It is unclear whether the elimination of certain provisions in Justice Dunn's April 29, 2010 Order was an oversight or deliberate.

20Unfortunately, the result is that Justice Clarke's March 24, 2014 Order does not reflect the agreement reached by the parties that day.

21Both parties agree that certain provisions, which were “terminated” by Justice Clarke, need to be dealt with. Both parties have relied and will continue to rely on the strict wording of the court order. This is particularly important in this case, where the parties cannot agree on anything. Strict compliance with the April 29, 2010 as amended by the March 24, 2014 Order, will result in unintended changes to access which was never agreed to by the parties. The result is that the custody and access provisions of the current court order (Justice Clarke's March 24, 2014 as it amends Justice Dunn's Order of April 29, 2010) results in substantial unfairness to the parties and cannot stand.

22Let me provide just two examples:

1. Paragraph 7 of Justice Dunn’s April 29, 2010 Order deals with Christmas access. This paragraph was terminated by Justice Clark's March 24, 2014 Order but the March 24, 2014 Order does not deal with Christmas access at all. A strict enforcement of Justice Clarke's Order of March 24, 2014 will result in the elimination of the equal sharing of the Christmas school break by the parents; and

2. The same is true for access sharing during EID at paragraph 8 (alternating access during EID) of Justice Dunn's April 29, 2010 Order.

23My concern is that what was resolved on March 24, 2014 was the result of “give and take”. What the parties’ positions might have been had they been advised that paragraphs 7 and 8 of the April 29, 2010 Order were being terminated, is unknown. To force the parties to continue to live with the provisions of what was discussed and agreed to and return to a continuing settlement conference to negotiate any remaining issues, would be unfair. In other words, it was a final settlement or it was not settled. The March 24, 2014 Order stands in its entirety or falls in its entirety.

24I cannot say that the resulting final custody and access Order of March 24, 2014 was, in its entirety, obtained by negotiations and agreement of the parties.

25While in some cases, it might be preferable to refer the matter back to the presiding judge, in this case, where allegations of bias and duress were made about the presiding judge, albeit entirely without merit, it would be best for the matter to be dealt with by a different judge.

26As a result, the matter is remitted back to the Ontario Court of Justice to a different judge to deal with custody and access issues which were at issue before the March 24, 2014 settlement conference.

27In these highly unusual circumstances, there will be no costs.

Ricchetti J.