Superior Court of Justice
ONTARIO
BETWEEN:
Jennifer Nuell Applicant
– and –
Chad Guay Respondent
COUNSEL: B. Fortino, Counsel, for the Applicant J. Herman, Counsel, for the Respondent
HEARD: November 19, 2021
JUDGMENT
The honourable Mr. Justice A. Pazaratz
1Don’t be too quick to ignore an order you just consented to. You may cause the judge to reconsider whether you can be trusted.
2Counsel described this as a narrow motion dealing with interpretation. But it ended up becoming much more complicated.
3One of the central issues: If the order says “The parties shall consult with each other prior to making major decisions for the children.”
a. Does this require future consultation, as decisions arise?
b. Or can one of the parents say “I already know what you think because we talked about it before the order was granted”. Does recollection of past discussions constitute “consultation”?
4The parties have three children, Brody, age 13; Layla, age 12, and Mason, age 10.
5Temporary parenting issues had been bitterly contested – particularly in relation to the children’s schooling – and they had a trial scheduled for the sittings of October 18, 2021.
6On October 12, 2021 counsel attended in Purge court to advise me that the parties had settled all issues. I granted a final order pursuant to Minutes of Settlement dated October 5, 2021, signed by the parties when they both had the same counsel as appeared on this motion.
7That order includes the following provisions:
a. The mother shall continue to have sole decision-making authority in relation to Layla and Mason.
b. The father shall have sole decision-making authority in relation to Brody.
c. The parties shall consult with each other prior to making major decisions for the children.
d. Brody shall reside primarily with the father. The mother’s time with Brody includes alternate weekends Friday to Monday.
e. Layla and Mason shall reside primarily with the mother. The father’s time with them is based on a four-week schedule.
f. Each party is entitled to receive information from third party service providers.
g. (There are numerous other provisions not relevant for this motion).
8Paragraph 18 of the Minutes states:
- The Applicant shall enroll the children Layla and Mason in Viscount Montgomery as soon as possible and they shall remain at Viscount for the remainder of the school year. The Applicant shall have final say with respect to Layla and Mason if school issues arise in the future.
9On November 2, 2021 – less than one month after the order was made, the father brought this motion to require that the child Mason “be enrolled to attend in-person classes for school commencing immediately.”
10The mother opposes the motion and requests that it be dismissed.
11The father’s position:
a. The parties “continue to disagree” about Mason’s schooling.
b. Brody attends Viscount school.
c. The mother emailed the school requesting that Layla attend Viscount and also requesting an out of catchment special exception so that Mason could attend there as well.
d. On or about October 6, 2021 the mother’s lawyer alerted the father that the mother was unable to enroll Mason at Viscount Montgomery.
e. The father contacted Viscount and was advised that technically Mason should be enrolled at Rosedale Elementary School until he reaches grade six. The father assumed that if Viscount wouldn’t take Mason, the mother would enroll him in the appropriate school in her catchment area.
f. On October 12, 2021, after the Minutes had been filed with the court, the father learned that the mother unilaterally decided to keep Mason home from any school. Further inquiries through counsel resulted in a text message on October 19, 2021 that the mother had decided to home-school Mason.
g. The father says the mother is not adhering to the terms of the Minutes/Order and she is not acting in the best interests of the child.
h. The father refers to the very first paragraph of the minutes which states: “The parties shall consult with each other prior to making major decisions for the children.” He says the decision to switch to home-schooling is a major decision and notification through the mother’s lawyer that “our client will be making alternate arrangements” does not quality as consultation.
i. The father says it was the mutual intention of the parties that Mason be enrolled in-school for the current semester.
j. He says if Mason cannot be enrolled at Viscount, the next logical alternative would be for him to be enrolled at the appropriate school in the catchment area, Rosedale. Last year Mason attended school on-line.
k. He says the decision to home-school is a “big divergence from what was agreed upon.”
l. He says schooling has been an ongoing issue between the parents. In September 2020 they had a contested motion in relation to “in-person” school attendance vs “on-line” school attendance. The court granted a temporary order for on-line school attendance as proposed by the mother.
m. The father says prior to their agreement to send Mason to Viscount if possible, the mother had investigated enrolling the child at Westwood for in-person learning. He says the only discussion they have ever had was selecting a school and (previously) selecting whether it would be “in-person” or “on-line” school attendance. But home-schooling was never discussed or contemplated.
n. The father says when the mother signed the minutes agreeing to enroll Mason in Viscount as soon as possible, she did not disclose that she was already aware that there was uncertainty about this because of the catchment area issue. Had the mother disclosed to him that she had more information about the availability of Viscount than he did, they could have further addressed alternatives.
o. He says instead the mother decided to home-school without advising the father. He does not agree with this decision and does not believe it is in the best interests of the child.
p. He expresses concern about how Mason’s grades and education will be affected if he is removed from the school curriculum and home-schooled.
q. He feels it is inappropriate for Mason to be home-schooled when his two siblings attend school.
12The mother’s position:
a. She has sole decision-making authority for Layla and Mason.
b. She has “final say” with respect to Layla and Mason if school issues arise in the future.
c. The Minutes which set out her rights were negotiated at length between the parties and with the assistance of counsel.
d. She is not able to enroll Mason in Viscount school this year despite her best efforts.
e. She has received and considered the father’s input in relation to schooling. She has ultimately chosen to hold off enrolling Mason in in-person schooling.
f. She says Mason won’t be undergoing any significant change in the interim. He has been attending school on-line from home since March 2020. He will simply continue his current routine of being home (although no longer remotely attending a school).
g. She says her plan is less disruptive than sending Mason to school for this year and then switching him to another school in September.
h. She says home-schooling will decrease any risk of exposure to COVID.
i. She denies previously exploring enrolling Mason at Rosedale. She says the father initiated that idea directly with Mason.
j. The mother says prior to signing the minutes she and the father “discussed various schooling alternatives, including different schools, remote learning, and home-schooling. There was never any presumption of what decision I would make if Viscount was no longer an option...”
k. She says she decided to home-school Mason because he was already “learning from home” since March 2020, and it would be more disruptive to change to in-person at one school for the 2021-2022 school year, and then change schools again in September 2022.
13The mother refers to the motion endorsement of Justice Bale dated September 29, 2020 as mentioning that prior to COVID the mother had obtained home-schooling certification. However that motion was not in relation to home-schooling. The father had brought a motion asking that the children attend school in-person. The mother had argued that the children should attend school on-line. In September 2020 the mother told the court that on-line learning is a viable option. Justice Bale ordered on-line school attendance – not home-schooling.
14The mother suggests that if the father wants to change the final order he will have to bring a motion to change and establish a material change in circumstances “after the requisite waiting period.”
15Rule 2(3) of the Family Law Rules provides that the Court should deal with cases justly which includes ensuring that the procedure is fair to all parties and that saves time and expense. The mother’s suggestion that the father will have to wait and then commence a time-consuming and expensive motion to change is unrealistic, inefficient, and completely fails to address a determination of the immediate best interests of the child.
16It is clear that the parents had different expectations when they signed the Minutes on October 5, 2021.
a. The mother says even before signing the Minutes she had contacted Viscount and “I was told he could not attend until Grade 6.”
b. The father says the mother didn’t share that information before signing the minutes. If he had known Viscount was not currently an option for Mason the father wouldn’t have signed minutes that specifically contemplated Mason attending Viscount “for the remainder of the school year.”
c. The mother says “my intentions regarding schooling were discussed at length when negotiating the Minutes”. The father says home-schooling was never discussed, let alone agreed to.
d. The mother says she considered the father’s input and then exercised her right to make a final decision. The father says the minutes/order require future consultation in relation to new issues. Instead, the mother appears to be saying that she considered discussions they had prior to signing minutes as “consultation” – and then after the minutes were signed, she had the right to do whatever she wanted without additional consultation.
e. In paragraph 20 of her affidavit the mother says the father “was aware of my decision regarding schooling once it had been made”. (Emphasis added) That sounds like “after-the-fact notification” rather than “consultation.”
17There are at least two distinct issues here:
a. Whether the mother and the father were ad idem with respect to the Minutes of Settlement which they signed and filed.
b. Whether the court had a reliable basis to be confident that the Minutes of Settlement set out an arrangement which will be in the best interests of the children. Whether the minutes should have been incorporated into a court order.
18Today’s motion by the father – and the mother’s response – raises a threshold question of whether there was actually a meeting of the minds between the parties, or whether there was a fundamental mistake about what was agreed to. Understandably, both counsel expressed reluctance to reopen all issues. For the moment they appear to want to approach this as an “interpretation” issue, without necessarily undoing their “agreement.”
19But whether the parents want to stick with their Minutes of Settlement or set them aside (partially or completely), the court has an overriding obligation to protect children.
20The father says he thought the Minutes of Settlement would result in Mason attending school. The mother disagrees. That’s a dispute between the two of them.
21But as the judge who accepted the Minutes of Settlement on October 12, 2021, I can unequivocally state that I also understood that my order would mean that Mason would be attending school (in one form or another).
a. He was registered for on-line learning the day the Minutes were signed.
b. He was registered for on-line learning the day I granted the order.
c. I received no indication that he had been home-schooled before October 12, 2021.
d. There was no indication that he would be home-schooled after October 12, 2021.
e. The only real uncertainty appeared to be whether the child could be enrolled in a particular school. But not whether the child should attend school at all.
f. If anyone had told me that my order would result in the child immediately being switched to home-schooling, I would have required much more information and evidence to be satisfied that this was appropriate. I would have wanted an opportunity to consider the father’s strenuous objections.
22Similarly, the mother’s interpretation of the consultation requirement in the Minutes and Order is not at all what I had in mind.
a. The Minutes stated: “The parties shall consult with each other prior to making major decisions for the children.”
b. “Shall consult” contemplates future discussions. Instead, the mother appears to take the position that any required consultation occurred before the minutes were signed. Sort of retroactive consultation. She says after the minutes were turned into a court order she had no further obligation to discuss anything with the father, and she had the legal right to do what she wanted. If the mother’s interpretation is correct, then what was the point of including the “shall consult” requirement?
c. “Major decisions” certainly includes a decision to suddenly home-school a child. The father says home-schooling was never discussed. The mother says it was among various options discussed prior to signing minutes. I am unable to determine based on conflicting materials whether home-schooling was previously discussed or not. But in either event, the mother’s interpretation is quite self-serving. The minutes of settlement set out an expectation of in-school attendance. As soon as the mother changed the plan to home-schooling – even if she felt it was the best remaining option – that was a “major decision” which at the very least required additional consultation.
23The context and timelines here are critically important.
24Every choice of school decision I have ever seen has emphasized the fundamental responsibility of parents to get their act together and organize educational plans in a timely manner so that their child’s school progress and participation is not disrupted.
25When I received the Minutes on October 12, 2021 I was reassured that the parents had comprehensively addressed Mason’s education. If I had the slightest inkling that educational issues were not resolved, I would not have accepted the minutes. I would have left the parties on the October trial list. And they likely would have had their trial completed by now.
26Instead, at the hearing of this motion on November 19, 2021 I was told that the parents still haven’t resolved the issue of Mason’s education. Their affidavits raise all sorts of credibility issues about who did what, who said what, who agreed to what, and whether they really had a deal. I can’t possibly make all of those factual determinations based on written materials in a regular motion timeslot. Counsel have suggested that I adjourn the matter to allow them to assemble further evidence and submissions. But any adjournment will simply result in more delay. And in the meantime the mother seeks to interpret my order of October 12, 2021 in a manner which neither the court nor the father intended.
27Counsel expressed frustration about things unravelling. But I didn’t create the minutes and I didn’t create the confusion, mis-communication and selective interpretation.
28Picking a school or educational format shouldn’t be so complicated or take so long. These parents figured it out for two of their children. It is incomprehensible that it’s almost Christmas, and they are allowing their third child to languish in uncertainty as a result of their bitter and misguided conflict with one another.
29With this fresh evidence, I no longer have confidence that it was appropriate to incorporate the October 5, 2021 Minutes of Settlement into a final order.
30Although the Minutes were received by the court on October 12, 2021, no final order has been issued or entered.
a. A judge is not functus until a court order has been issued and entered. Iredale v. Dougall 2021 ONSC 4572 (SCJ); Metropolitan Toronto Condominium Corp. 626 v. Bloor/Avenue Road Investment Inc., [2009] O.J. No. 1205 (SCJ).
b. An order can be withdrawn, altered or modified by a judge on his/her own initiative or an application of a party until such time as the order has been entered. Montagne v. Bank of Nova Scotia 2004 CanLII 27211 (ON CA), 69 O.R. (3d) 87 (C.A.); Holmes Foundry Ltd. v. Village of Point Edward; Caposite Insulations Ltd. v. Village of Point Edward 1963 CanLII 197 (ON CA); N.S. v. R.M. 2020 ONSC 3359 (SCJ); Wharry v. Wharry, 2019 ONSC 2895 (SCJ); Clement v. Clement, 2015 ONSC 5654 (SCJ).
c. A judge can reconsider their decision until the order is drawn up and entered. Scott v. McGrail 2018 ONSC 720 (SCJ).
31Accordingly, I have the discretion to re-visit and amend or rescind my order, if it is in the best interests of a child to do so.
32In Richardson v Richardson 2019 ONCA 983 (ON CA) the Ontario Court of Appeal discussed the discretion which judges have when presented with terms of settlement, particularly in relation to parenting issues.
25 There is no dispute about the importance of settlements in family law. Settlements are to be promoted and encouraged, as our colleague Nordheimer J.A. explains.
26 Nevertheless, it is well established that judges have the authority to review settlements and to reject them if they are not in the best interests of the children: Martin v. Martin, 1981 CarswellBC 773 (C.A.), at para. 7; C.T.G. v. R.R.G., 2016 SKQB 387, 86 R.F.L. (7th) 312, at para. 11; and Harper v. Harper (1991), 1991 CanLII 8330 (ON SC), 78 D.L.R. (4th) 548 (Ont. Gen. Div.), at p. 553. This authority must be exercised with caution. Mere disagreement with the terms of a settlement affords no basis for courts to intervene: see e.g., F.J.V. v. W.K.S., 2019 BCCA 67, 18 R.F.L. (8th) 225, at paras. 26, 29. Further, whether a settlement is in the children's best interests should take into account more than just the settlement terms. It should also consider the general benefits to children that flow from parents resolving their disputes through compromise rather than litigation.
27 If a judge rejects a settlement, the reasons for rejecting the settlement should be provided. Moreover, if the judge does not take any steps to facilitate settlement — such as sending the parties away with some direction as to the aspects of the agreement that are of concern, or arranging a settlement conference either with him or her or with another judge — the reason for this should also be provided. Without explaining the basis upon which the parties' settlement is rejected, the judge leaves the parties with no way of knowing, what, if anything, they could do to address the court's concerns. The concerns may have been of a nature that could be addressed, but in the absence of reasons the parties will have no opportunity to address them.
33During hearing of the motion I explained my concerns and I stood the parties down to consider the options – and consider the implications if the parties are not able to resolve this “narrow” issue. Unfortunately, they were not able to reach any agreement.
34Since I perceive that my endorsement of October 12, 2021 was based upon inaccurate representations that all issues had been resolved – and since that endorsement is now being interpreted in a manner which may be contrary to the best interests of the child Mason – I am reluctantly exercising my discretion to rescind my October 12, 2021 endorsement. This is without prejudice to the parties having an opportunity to provide further evidence and submissions on a later date to satisfy me that:
a. The parties have actually reached agreement as to the terms and interpretation of a settlement (either the former Minutes or a revised version); and,
b. Their settlement reflects the best interests of the children.
35With there being no final order in place, the most recent temporary order of Justice Bale is still operative. That order requires that the children participate in on-line school learning (which is what the mother had previously requested). That order did not contemplate home-schooling, and as stated there has never been a home-schooling arrangement for Mason prior to October 12, 2021.
36For clarity: pending further order the child Mason is not to be home-schooled. The mother is to immediately make arrangements to have Mason registered and participate in school. At the very least it should be “on-line” attendance, as required pursuant to Justice Bale’s temporary order. But in light of the father’s position, the mother may register Mason for “in school” attendance.
37On consent, adjourned to December 10, 2021 10:15 a.m. to be spoken to.
Pazaratz J.
Released: November 22, 2021
COURT FILE NO.: 987/18
DATE: 2021-11-22
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Jennifer Nuell Applicant
- and -
Chad Guay Respondent
REASONS FOR JUDGMENT
The Honourable Mr. Justice A. Pazaratz
Released: November 22, 2021