Court File and Parties

COURT FILE NO.: 99/18 DATE: 2022-04-19 ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT

BETWEEN: Antonio Cammarata, Applicant – and – Chantal Murphy, Respondent

Counsel: John Cox and Alex Ogilvie, Counsel for the Applicant Fay Ann Guilbeault, Counsel for the Respondent

HEARD: April 7, 2022

THE HONOURABLE JUSTICE J. W. SCOTT

Endorsement on Motion

[1] The applicant, Antonio Cammarata, has filed a motion, dated March 2, 2022, requesting that a transcript “of the questions asked by Madam Justice Scott of the Respondent at the Settlement Conference on June 15, 2021 and the answers given by the Respondent”, Chantal Murphy, be released to counsel for the parties and to the Office of the Children’s Lawyer.

[2] On March 3, 2022, counsel for the OCL was excused from the entire proceeding with the justice noting in her endorsement that the child-related issues were resolved. Consequently, as confirmed by counsel for the applicant on April 7, 2022, the OCL has no interest and is not participating in this current motion.

[3] The applicant originally made this request for the release of the transcript by way of a 14B motion dated October 29, 2021. That motion had a written consent from the respondent. At that time, I endorsed:

This motion is brought pursuant to R. 17(23).

A settlement conference is not equivalent to examinations for discovery or questioning.

Bearing in mind the purpose of a settlement conference and the expectation of confidentiality before an order can be made allowing for disclosure of statements from that setting to any other judge, more evidence is required than simply the consent of the parties. What is the specific information being sought that is not available elsewhere? Since parties attend and participate in settlement conferences with the understanding their statements will be held in confidence, the Court must be satisfied that in the interests of justice the information should be released through a transcript.

The motion is dismissed without prejudice to refile with further and better evidence. If the motion is refiled, it shall be heard orally and not by the 14B process.

[4] The current motion before the court is a result of the refiling. The new affidavit, unlike the initial one filed, contains information about what is being sought and why.

[5] The applicant’s position is that at the settlement conference, in response to questions from myself, the respondent provided information contradictory to other statements, sworn and otherwise, that she has made elsewhere in this proceeding with respect to her employment and income.

[6] The respondent’s current position is that a transcript should not be provided, that a settlement conference is confidential, and statements should be viewed as privileged.

[7] I recognize that at the time the original 14B motion was presented to the court, the respondent had signed a consent agreeing to the transcript being released but obviously that is no longer her position. As the 14B motion was dismissed, and a new motion filed, I would find that first consent signed by her is not binding with respect to this current motion.

[8] I have read the materials filed and heard the submissions of counsel. It appears that the information that is being sought relates to whether or not the respondent is earning additional income that is not being disclosed either in her tax returns or in this proceeding. Her income is relevant due to a retroactive child support claim for a period ending around October of 2020, as well as her claim for spousal support. The assertion of the applicant is that at the settlement conference in June of 2015, the respondent acknowledged this additional employment but outside of that conference she “vehemently” denies the allegation. The applicant apparently did retain a private investigator and presumably is in a position to introduce information from that source contrary to the statements of the respondent, at trial, if need be, on this issue.

[9] A settlement conference is a prescribed event in family cases. Litigants who are participating in a proceeding are required to attend unless there has been an order indicating otherwise.

[10] The purposes of a settlement conference are set out in rule 17(5) of the Family Law Rules and have been referred to by counsel for the applicant in his argument, particularly the “noting of admissions that may simplify the case.” In my view, the purposes of the conference must also keep in mind rule 17(23). That rule states:

No brief or evidence prepared for a settlement conference and no statement made at a settlement conference, shall be disclosed to any other judge, except in,

(a) an agreement reached at a settlement conference; or

(b) an order.

[11] While conversations or statements made during the discussions at a conference may appear at first blush to be general in nature, they may at the same time be very much part of the entire case. What may seem to be unrelated in isolation to settlement, can be a part of the bigger picture that will be taken into account for settlement down the road. Nonetheless, in keeping with the confidentiality element of the conference, I would conclude that unless an admission is made on consent, or, to put it another way, intended to be on the record, to later go back and transcribe the statements to be part of the evidence for a motion or trial, would be a step backwards in the conference scheme upon which our family court system is based.

[12] Some 14 years ago in Bordynuik v. Bordynuik, 2008 ONSC 39219, [2008] O.J. No. 3049, I wrote that people are encouraged to talk openly and frankly in a conference setting on the understanding that their comments will not go outside of that conference setting. To not approach a conference from that standpoint will inhibit and negatively impact on those discussions and dampen the conference process. My view has not changed on that issue over the years that have elapsed since. That is and must be the starting point.

[13] As indicated in my endorsement of November 4, 2021, a settlement conference is not equivalent to an examination for discovery or questioning. As a result, it is not an automatic right that a transcript can be ordered, distributed and potentially used later in a proceeding. Generally, the justice involved in a conference can be described as someone who must act as a gatekeeper to ensure that information is not released, except in extraordinary circumstances.

[14] By way of example of what those circumstances might include, if a judge learns at a conference that a child is at risk, it may be that information should be released to either a Children’s Aid Society or the police. Another example would be if, at a settlement conference, a threat is directed at someone that could impact that person’s health or safety, it may be that a judge would direct the information to be released. There are other examples that could be made. All of them simply reflect that in the interests of justice and especially when the safety of a person may be impacted, there will be times that the wall of silence needs to be collapsed.

[15] Even in those scenarios however, the court will likely consider whether there are other ways for the information to come out.

[16] Although the case is not directly on point, I note that Pazaratz J., in Entwistle v. MacArthur, 2007 ONSC 17375, [2007] O.J. No. 1958, concludes at para. 32 that “the insular nature of settlement conference materials and discussions [emphasis added] is intended to be impermeable.” Subject to the type of exceptions I referenced earlier, I agree with that description.

[17] Counsel for the applicant argues that if the statements of the respondent are not released, we are simply assisting or supporting the respondent in defrauding the court. I do not accept that argument. What a party says at a conference is not sworn testimony. I gather from the material filed that the respondent has indicated that her income is only what is reflected on her tax return and that she has no other income source. Those statements were made under oath, presumably in affidavits, financial statements and at an examination (or questioning). As the applicant has other evidence, as mentioned earlier, that he could call to rebut those statements, prohibiting release of the unsworn statements from the respondent at a settlement conference will not prevent the applicant from introducing the private investigator’s information to contradict what she has said, or may say, under oath.

[18] Counsel for the applicant referred the Court to the case of Chan-Henry v. Liu, 2018 BCSC 2140. It appears from that case the court did have a transcript of a settlement conference as there is reference at para. 132 of that decision to the respondent requesting that it be used in evidence at trial. In that proceeding the court handled the admissibility of the transcript through a voir dire process. The result was it was not admitted, apparently on the basis it did not support the position described by the respondent. There is no information before this court as to whether the rules in British Columbia specifically reference confidentiality of a conference. This decision seems to limit its ruling to privilege being able to be set aside on the basis of deceit. Counsel for the applicant suggests that this court could defer the decision on admissibility in this same fashion to the trial judge to consider, presumably through a potential voir dire as well or perhaps through redaction of certain portions of the transcript. I decline to do that.

[19] I am not satisfied that the interests of justice require the statements made at the settlement conference by the respondent with respect to employment be released.

[20] While some may argue those statements do not need to be protected through the confidentiality referred to in rule 17(23), it is my view that unless we are consistent in maintaining the principle of confidentiality, the conferences that have been established as part of our family justice system will become less open and less likely to promote resolution. The specifics sought in this current motion do not warrant release of the transcript.

[21] The motion is dismissed.

[22] If costs are an issue that cannot be resolved, brief submissions should be provided by the respondent no later than April 29, 2022; by the applicant no later than May 9, 2022; and any reply by the respondent no later than May 16, 2022. Submissions should be sent to the attention of the judicial assistants at the Superior Court of Justice in St. Catharines or, if filed electronically, to St.Catharines.SCJJA@ontario.ca.

[23] If no submissions nor any consent are filed, there will be no order on account of costs.

Scott J. Date: April 19, 2022