Children's Aid Society of Haldimand & Norfolk v. A.O., G.M.H. & T.M., 2021 ONSC 8577
COURT FILE NO.: FC-21-27 (Simcoe)
DATE: 2021/12/01
WARNING: This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017, which deals with the consequences of failure to comply, read as follows:
87(8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Children’s Aid Society of Haldimand & Norfolk, Applicant
AND:
A.O., G.M.H. and T.M., Respondents
BEFORE: Madam Justice J. Breithaupt Smith
COUNSEL: D. Clarke, Counsel for the Applicant
C. Thompson, Counsel for the Respondent A.O.
G.M.H., Respondent is Self-Represented
C. Bruni, Counsel for the Respondent T.M.
CORRECTED DECISION: COUNSEL: T.M. , Respondent is Self-Represented
was corrected on January 19, 2022 to read C. Bruni, Counsel for the Respondent T.M.
ENDORSEMENT
Scope & Materials
[1] This is a Motion brought by the Respondent, G.M.H., seeking to enforce the terms of a settlement that he submits was reached at a Settlement Conference held on August 30, 2021.
[2] The following materials were provided to the Court for review for this matter:
a) G.M.H.’s Notice of Motion having original placeholder return date of October 20, 2021;
b) T.M.’s Affidavit dated October 12, 2021;
c) Affidavit of Jennifer LeBrun, child protection worker with the Applicant Society, dated October 12, 2021;
d) Factum filed by the Applicant Society dated November 22, 2021;
e) prior Endorsements; and
f) Confirmation filed by the Applicant Society dated November 24, 2021.
[3] Upon the opening of Court, it became apparent that Mr. H.’s Affidavit dated October 8, 2021 had not been provided to me for review. Ms. Bruni was in a position to email that document to Madam Registrar and it was then forwarded to me.
Parties’ Positions & Evidence
[4] Mr. H. asks the court to “enforce the settlement arrived at by the parties accepting [the Society’s] position 1-7 as it was presented and agreed to at on Monday August 30.” He is referring to portions of the Society’s Settlement Conference Brief filed under Part 4 “Offer to Settle.” Mr. H.’s Affidavit consists of a recitation of details discussed at the Settlement Conference, inclusive of his interpretation of Justice Walters’ comments, and attaches the Society’s Settlement Conference Brief as an Exhibit. None of that content is properly before the Court, both because it is settlement-privileged and by operation of Rule 17(23) which provides: “No brief or evidence prepared for a settlement conference and no statement made at a settlement conference shall be disclosed to any other judge” unless a resolution is achieved and the matter is concluded. Mr. H. includes an email, attached as an Exhibit to his Affidavit, that he sent to the other stakeholders on September 28, 2021 at 11:14 a.m. which includes the following two sentences:
The custody solution proposed in this for the ongoing 6 months is substantially removed from the agreement that we arrived at during the case conference.
I’m not sure that there is a tremendous utility to arguing over the agreed upon statement of facts when they [sic] proposed solution is such a distance away from what we all agreed on.
[5] Despite the problem with the disclosure of settlement-privileged information in his Affidavit, I must commend Mr. H. on making very careful submissions to the Court today without referencing the specific details of the settlement allegedly reached. In his submissions, Mr. H. further confirmed another “substantial difference” between the parties, namely a shift in the named caregivers/decision-makers for the child.
[6] Mr. H. referenced a number of “tests” that he argued as being applicable to this motion, including:
a) whether the resolution proposed is “unconscionable”;
b) whether the terms of the agreement are sufficiently clear;
c) whether any of the parties have acted in bad faith; and
d) whether the agreement addresses all of the outstanding issues in the litigation.
[7] In response to questions from me, it appeared evident that Mr. H. was referencing Rule 49 of the Rules of Civil Procedure and the jurisprudence arising from that Rule. As Rule 1(7) of the Family Law Rules notes, recourse is had to the Rules of Civil Procedure only when there is a gap in the details covered by the Family Law Rules.[^1] As Rule 18 of the Family Law Rules addresses Offers to Settle, there is no need for recourse to the Rules of Civil Procedure.
[8] In her Affidavit, Ms. LeBrun sets out some of the details discussed at the Settlement Conference, including the positions of the Society and of the parties as she understood them prior to the Settlement Conference. Again, this content is not really appropriate as it sets out privileged settlement discussions, although Ms. LeBrun’s evidence does support the point that the discussions were ongoing and one of the most central aspects to the possible resolution – namely whether there would be a Supervision Order continuing the Society’s involvement for a further six months or not – had not been finalized.
[9] The settlement-privilege issue is raised at paragraphs 3 and 4 of Mr. M.’s Affidavit. Mr. M. attests, at paragraph 19 of his Affidavit, that he believed an agreement-in-principle had been reached and that he “left the Settlement Conference believing that the Society was going to circulate a Statement of Agreed Facts and further settlement discussions were going to take place to iron out the details.” I note here that, on the question of the inclusion of settlement-privileged content in motion materials, Mr. M. is not entirely blameless having regard to the series of emails at Exhibit C to his Affidavit, although I appreciate that those emails were attached to demonstrate that, as of the close of business on August 30, 2021, it is clear that nothing had been finalized. Indeed, in the last email in that sequence, timestamped 6:01 p.m., Mr. Brennan writes to Ms. Bruni: “I am going to wait for the Society’s draft minutes.”
[10] Both Ms. Bruni and Ms. Thompson echoed Mr. Clarke’s submissions that: settlements reached in family court must be committed to writing in order to be binding so as to avoid just the type of confusion seen in this matter; and, having regard to the specific nature of child protection litigation, even a signed consent package can be refused by a presiding judge who retains ultimate decision-making authority in the matter. Ms. Bruni took this last point to an important logical extension – if Mr. H.’s motion were to succeed, then litigants themselves would be compelling the Court to enforce terms of settlement that had not yet been approved by the Court, thus usurping the Court’s decision-making function.
Law and Discussion
[11] Rule 17(19) of the Family Law Rules specifically addresses the manner by which settlements are reached at a Settlement Conference, presumably so as to avoid the sort of confusion that we see in this matter. That sub-rule reads:
(19) No agreement reached at a conference is effective until it is signed by the parties, witnessed and, in a case involving a special party or a child party, approved by the court.
[12] In the usual course in a matter involving a child protection agency, the “party” who is signatory to a settlement package is the ongoing family service worker or other employee of the agency having knowledge of the proceeding.
[13] Offers to Settle prepared separately under Rule 18 can be accepted by “serving an acceptance on the party who made the offer” before it is withdrawn or expires as a result of the commencement of the issuing of the Court’s decision on the point raised in the offer.[^2] For clarity, these are stand-alone documents that sometimes include expiry provisions or acceptance timelines, particularly where court costs are involved. Similarly, any offers contained in a Settlement Conference Brief expire at the commencement of, or certainly by the conclusion of, the conference, which is why the Briefs are to be completely destroyed.[^3] This is the primary rationale behind the presumption that offers contained in Settlement Conference Briefs cannot be accepted using the process under Rule 18. However, Offers made in Settlement Conference Briefs have been considered in the context of Rule 18 (albeit on the issue of costs)[^4], and there is a body of caselaw regarding the creation of a binding settlement agreement in the family law context, and therefore it is important to explain to Mr. H. why no settlement was crystallized on August 30, 2021.
[14] The legal principles regarding the acceptance of a written Offer to Settle, and I would emphasize here that the written Offer to Settle is one made pursuant to Rule 18 of the Family Law Rules, can be summarized as follows:
a) At common law, an agreement is binding if it contains all essential terms, even if the parties agree that a more formal document will be drawn up at a later date. However, an “agreement to agree” on essential provisions is unenforceable.[^5]
b) These primary principles apply equally to family law matters,[^6] and, where essential terms are agreed upon, the inclusion of a statement confirming the parties’ intention to generate a more detailed and formal separation agreement does not defeat the settlement.[^7]
c) The test is whether a reasonable observer would have understood that the parties were making a final agreement resolving all essential issues.[^8]
d) The parties’ behaviour after the date upon which the settlement theoretically crystallized can be instructive to the Court in assessing whether an agreement was reached. If, in the eyes of an objective observer, the parties took steps consistent with the terms reached, it is reasonable to infer that the parties believed themselves to be bound by those terms.[^9] If, however, the parties’ subsequent course of conduct emphasized the importance of a formal document, then the opposite can be inferred.[^10]
[15] Here, no settlement could possibly have crystallized for the following reasons:
a) In child protection litigation, the Court requires the underlying Statement of Agreed Facts as an evidentiary foundation upon which to base the order sought. In other matters, the Court does not have to be concerned that the resolution achieved is sensibly based upon, or even relates logically to, the evidence provided. This sets the resolution of child protection matters apart from the broad discretion afforded to family and civil litigants.
b) In child protection litigation, the Court must at all times be satisfied that the Order sought is the least intrusive in the best interests of the subject children. This is unlike any other version of family or civil litigation in which, with certain limited exceptions, parties are free to reach any terms of agreement satisfactory to them.
c) At no point in the email chain does Mr. H. clearly confirm whether he is agreeable to a six-month supervision order under section 101 of the Child, Youth and Family Services Act, 2017 (the “Act”) or whether he is seeking a final custodial order under section 102 of the Act, although Ms. Bruni asks the question of him directly twice.
d) The difference between a supervision order under section 101 and a custody/decision-making order under 102 is undoubtedly an essential term to any theoretical agreement. If the order is to be made under section 101, it will come up for status review after its specified term (here, six months) whereas if it is made under section 102, the Society’s involvement is at an end. These are two very different paths: one anticipates further litigation at a roughly-specified date and the other brings the file to a permanent close.
e) Mr. Brennan for A.O. clearly states his intention to wait and see the language proposed by the Society before making any further comment.
Conclusion
[16] Consequently, no reasonable observer could have concluded that the parties were making a final agreement resolving all essential issues and that they believed themselves to be bound by specific terms of such final agreement as of August 30, 2021.
[17] Mr. H. confirmed in his closing remarks that his fervent hope is for a resolution to be achieved so that the family can move forward. I am certain that this is the motivation of all involved, and a continuation of the Settlement Conference before Madam Justice J. Walters would be the best mechanism to do so. I note that Ms. Bruni suggested that perhaps documentation could be finalized and signed at the continuation if it could be held in person.
[18] Having regard to all of the foregoing, Mr. H.’s Notice of Motion is dismissed. The Society does not seek costs, and considering the overall circumstances of this matter and, in particular, the apparent absence of reported caselaw on this specific point, there shall be no order as to costs.
Order
[19] Pursuant to the Child, Youth and Family Services Act, 2017 and the Family Law Rules (Courts of Justice Act), provincial legislation only, TOTG:
The Notice of Motion filed by Respondent G.M.H. (identification redacted for publication purposes), having original placeholder return date of October 20, 2021, is dismissed.
The Application is scheduled to be spoken to on January 19, 2022 at 10:00 a.m. for the purpose of arranging a Settlement Conference continuation before Madam Justice J. Walters and in the hopes of reaching a final resolution. Zoom videoconference connection details to be provided by the Trial Co-ordination Office.
Each party shall bear his or her own costs connected with today’s attendance.
________________________________________
J. Breithaupt Smith, J.
DATE: December 1, 2021
[^1]: Rule 1(7) provides: “If these rules do not cover a matter adequately, the court may give directions, and the practice shall be decided by analogy to these rules, by reference to the Courts of Justice Act.
[^2]: Rule 18(9) of the Family Law Rules, O. Reg. 114/99, as am.
[^3]: see Entwistle v. MacArthur, 2007 17375 (ON SC), in which case, at paragraph 40, Justice Pazaratz concluded that “even at the final costs stage of a proceeding, the absolute confidentiality of the settlement conference process should be respected” and therefore offers made in settlement conference briefs were not to be considered in determining an apportionment of costs.
[^4]: see Sangha v. Sangha, 2014 ONSC 5301 at paragraphs 30 – 34 where Justice Campbell commented upon Entwistle v. MacArthur without ruling on the point at issue.
[^5]: Bawitko Investments Ltd. v Kernels Popcorn, 1991 2734 (ON CA).
[^6]: Bogue v Bogue, 1999 3284 (ON CA) at paragraph 12.
[^7]: Ward v Ward, 2011 ONCA 178 at paragraphs 53 – 55.
[^8]: Iofcea v. Dinoiu, 2018 ONSC 6882 at paragraph 28.
[^9]: Ward v Ward, supra Note 3 at paragraphs 68 – 70.
[^10]: Andrews v. Lundrigan, 2009 ONCA 160 at paragraphs 8 – 9.