Court File and Parties

COURT FILE NO.: FS-12-00034886-0002

DATE: 2022-01-24

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Lisa FORBES, Applicant

AND:

Kenneth FORBES, Respondent

BEFORE: Kurz J.

COUNSEL: Brian Ludmer, for the Applicant

Self-represented Respondent

HEARD: October 6-8, 11-15, 18-19, 29, 2021

ENDORSEMENT

Introduction

[1] In Blackstone's Commentaries on the Laws of England, published 1765-1770, the eminent British jurist, William Blackstone, famously wrote that “it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy, by suit or action at law, whenever that right is invaded”: Vol. 3, c. 3, Wayne Morrison, ed., (London, UK: Cavendish Publishing, 2001).[^1] But those who labour in what the late Philip Epstein often called the “vineyards of family law”[^2] know that there are many exceptions to that rule. In fact, one truth that is ground into the bones of family law practitioners each day is that our courts cannot solve every problem placed before them. That notion is particularly true when it comes to the affections of older children who are estranged from loving parents. Our courts simply cannot give every story or litigant a happy ending. That is the case here.

[2] The Applicant, Lisa Forbes (“Lisa”), brings a motion to change the consent order of Woollcombe J. of July 24, 2017 (the “Woollcombe order”). That order was intended to finally resolve years of intense conflict between the parties over money and their children. It varied the final support order of Coats J. of February 19, 2015 (the “Coats support order”). As set out in greater detail below, the Coats support order required the Respondent, Kenneth Forbes (“Ken”) to pay indefinite term spousal support to Lisa and for Lisa to pay child support to Ken for the parties’ two youngest children.

[3] The Woollcombe order called for:

1. The termination of Lisa’s child support obligations to the Respondent, Kenneth Forbes (“Ken”) regarding her third youngest child, R;

2. A time limit to Lisa’s support obligations toward the parties’ youngest child, A, who was one month away from her sixteenth birthday. That child support was to terminate in just over two years, following A’s eighteenth birthday;

3. A $2,000 annual limit to Lisa’s responsibility for A’s post-secondary expenses, payable for only three years;

4. The termination of Ken’s spousal support obligations to Lisa on A’s eighteenth birthday; and

5. The parties to meet together with A's counsellor, Shelley Cook[^3], twice per year in 2017, 2018 and 2019 to discuss “parenting updates and options”.

Lisa’s Position

[4] Lisa argues that Ken’s alleged breaches of the Woollcombe order represent an unanticipated material change in circumstances since the time of that order. Her proposed remedy is the retroactive reinstatement of her spousal support entitlement under the Coats support order. She says nothing about a reciprocal reimposition of her support obligations for her child, A.

[5] Lisa claims that she essentially made a bargain with Ken on July 24, 2017, the date of the Woollcombe order. She gave up her entitlement to indefinite term spousal support under the Coats support order. In return, Ken was to fulfil a promise made during their negotiations that day. She says that he promised to reconcile her with her four estranged children, three of whom were adults at the time. The two meetings per year for three years with Ms. Cook were the vehicle by which Ken was to meet his reconciliation obligations. It was the centrepiece of Lisa’s counsel describes as the “quid pro quo” between the parties, of reconciliation for support.

[6] Lisa contends that she is entitled to the reimposition of Ken’s indefinite term spousal support obligation under the Coats support order for two reasons. First, the two 2017 meetings with Ken and Ms. Cook were unproductive and contrary to the spirit of the Woollcombe order. Lisa asserts that Ken offered her few parenting updates or options during the two 2017 meetings. Second, Lisa claims that Ken failed to attend any further meetings together with her and Ms. Cook in 2018 and 2019. She says that he failed to schedule any such meetings in 2018. She adds that he only met with Ms. Cook in 2019 when her counsel warned him that he was in breach of the Woollcombe order. She was not present for any of those 2019 meetings.

[7] Lisa describes Ken’s conduct as a “fundamental breach” of the letter and spirit of both the Woollcombe order and their underlying agreement. She argues that Ken also breached his duty of good faith bargaining. He misled her about his true intentions in order to obtain her agreement to the terminate his spousal support obligations.

[8] Lisa originally brought this proceeding as a motion to change the Coats support order. During the course of his opening statement, I asked Lisa’s counsel whether Lisa had ever brought a motion to enforce the Woollcombe order under r. 1(8) of the Family Law Rules, O. Reg. 114/99, at the time of Ken’s alleged breaches. That subrule may be utilized “[i]f a person fails to obey an order in a case or a related case. It offers a wide pallet of remedies to enforce compliance with the order that was breached. Lisa’s counsel indicated that she had not done so.

[9] Following that exchange, Lisa decided to amend her pleadings to include a claim against Ken under r. 1(8). For reasons given at the time and explained below, I granted her motion for leave to make the amendment.

Ken’s Position

[10] Ken denies Lisa’s allegations that he breached the letter or spirit of the Woollcombe order or any underlying agreement. He states that he never promised that he would or could reconcile her with their children because he could not make that promise. Lisa’s estrangement with their children was long-standing and, from the perspective of the children, justified. His agreement was only to attend the sessions and to engage in the discussion set out in the Woollcombe order. He argues that he complied with his obligations under the Woollcombe order and their agreement.

[11] Ken contends that Lisa may have given up indefinite term spousal support, but he was overpaying spousal support at the time. He also gave up child support for A after the child turned 18. He says that A remains in school, more than four years after the Woollcombe order. Moreover, Ken points out that he attended the two 2017 sessions that Lisa had arranged with Ms. Cook. While there, he offered Lisa parenting updates and options. Even so, Lisa chose not to arrange any sessions in 2018.

[12] Ken continues, stating that Lisa failed to arrange any sessions with Ms. Cook in 2018, as she had done the previous year. Nonetheless, he called the therapist himself to see whether the sessions would proceed. But he received no response. During her testimony, Ms. Cook was unable to confirm or deny that claim.

[13] Ken points to a May 6, 2018 email exchange between Lisa and Ms. Cook to say that it was Lisa who rejected the 2018 and 2019 meetings. In that exchange, Lisa and Ms. Cook agreed that the 2017 sessions had been “futile” and required change to become successful in the future. Moreover, when Ms. Cook sought Lisa’s dates in order to arrange joint sessions for 2018. Lisa refused to offer any dates. She directed Ms. Cook not to arrange any further meetings unless it was Ken who made the arrangements. She explained that she did not wish any further meetings to occur.

[14] Ken was not copied on any of that correspondence. Neither Lisa nor Ms. Cook made Ken aware of their concerns about the 2017 meetings, nor of Lisa’s direction to Ms. Cook regarding future meetings. Ken only became aware of their correspondence through the disclosure of Ms. Cook’s notes in the days leading to trial.

Summary of my Decision

[15] For the reasons that follow, I reject Lisa’s interpretation of the terms of the parties’ agreement and the Woollcombe order regarding the Shelley Cook meetings. I further find that Ken did not breach the letter or spirit of the Woollcombe order. I find no material change in circumstances since the Woollcombe order and that any recourse to r. 1(8) is not appropriate or in the interest of justice. Accordingly, I dismiss this proceeding.

Previous Rulings in this Trial

[16] As noted above, Lisa moved to amend her pleadings following her counsel’s opening address. She sought to add a claim against Ken under r. 1(8) to her motion to change. Ken strongly opposed that relief. My assent to the amendment did not represent a pre-determination of the merits of that added claim. Rather, it was a recognition of the broad right under r. 11(3) to amend pleadings, absent compensable prejudice, even at trial. Subrule 11(3) requires the court to allow an amendment of a pleading “unless the amendment would disadvantage another party in a way for which costs or an adjournment would not compensate”: see also Smith v. Smith, 2021 ONSC 1990, at paras. 18-19.

[17] In granting leave to make the amendment, I wrote:

I cannot say that the simple reference to r. 1(8), which is the amendment I am allowing, would result in the Respondent suffering “non-compensable disadvantage”. The facts alleged remain the same. The only difference is the reference to the rule as an additional source of relief.

[18] Beyond that procedural issue, I also ruled that the substantive portion of this trial should be restricted to the issues raised in the motion to change as amended. In making that ruling, I wrote:

[T]his trial will not become a vehicle to try or retry issues that could have been tried in 2015 when the issues of parenting and spousal support were first finally [sic] determined or 2017 when Woollcombe J. made her consent order. In particular, I will not be making findings of fault for the relationship between Ms. Forbes and the parties’ four children, who are all now adults. I have stated that I accept that all are estranged from Ms. Forbes and were at the time of the Woollcombe J. order.

[19] I further ruled, on consent, that the trial would be bifurcated between determinations of fault and remedy. Inasmuch as the key issue in this proceeding is whether Ken breached the Woollcombe order, it was not necessary to deal with the appropriate remedy unless I found that he had breached the order.

Background

[20] The parties were married for 27 years. They separated on June 8, 2011 and divorced on June 11, 2016. Both parties have now remarried.

[21] The parties have four children, N, born August 17, 1988, S, born September 7, 1990, R, born August 18, 1994, and A, born August 29, 2001. All four are now adults. They were approximately 22, 20, 16, and 9 years old on the date of separation.

[22] The events that led to the parties’ separation appear to have been traumatic for all involved. The Forbes family is a very religious Christian one. The parties’ lives are guided by their strong faith. In light of that faith, Lisa’s entrance into a romantic relationship with her present husband, Keith Grafton, before the parties separated, made their separation particularly difficult for all involved.

[23] The events of the date of separation are highly charged and contested. They led to Lisa being charged with assault. She does not appear to have been convicted of the charge. Nonetheless, the parties’ children felt that Lisa had acted wrongly, both with regard to her relationship with Mr. Grafton and towards them. That is a view with which Lisa strongly disagrees. She feels that she has been unfairly painted as the wrongdoer.

[24] Each party makes allegations of the other’s conduct during the marriage and on the date of separation that would, if proven, meet the definition of “family violence” under s. 2(1) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). Each party blames the other for Lisa’s estrangement from their children. As stated above, I am not in a position to determine which view is correct.

[25] That being said, it is clear that Ken and all four children were, and remain, closely aligned in their views of Lisa’s pre-separation parenting, the events surrounding the parties’ separation, and Lisa’s responsibility for those events.

[26] All four Forbes children remained in Ken’s care following the parties’ separation. The two who were adults at the time have since had little contact with Lisa. Much the same has been true of R. However, in the years following the separation, A and Lisa had what appears to be imperfect, court-ordered parenting time and counselling sessions with Ms. Cook. At this point, A, like her three siblings, is estranged from her mother.

[27] The severance of her relationship with all four of her children engenders understandably great sorrow in Lisa.

[28] The parties litigated for about three years until they finally settled in 2015. They resolved the parenting issues regarding their only remaining non-adult child, A, with the February 19, 2015 consent order of Coats J. (the “Coats parenting order”). Under that order:

1. Ken had the right to make all major decisions regarding A;

2. A’s primary residence was to be with Ken, “as it has been since June 8, 2011”;

3. Lisa and A were to continue to attend counselling with Ms. Cook. Ken was to “ensure that the child is made available for her appointments with Dr. Cook and the parties shall ensure that are [sic] attending at least one counselling session with Dr. Cook per month.

4. Access between A and Lisa “shall be arranged directly between [them] with the assistance of Dr. Cook”.

[29] The parties’ final financial settlement is set out in the Coats support order, cited above. The relevant terms of that order for the purpose of this proceeding are:

1. N and S were independent adults for whom child support is not payable.

2. Lisa was required to pay table child support to Ken for R and A of $1,063 per month, based on her 2014 income of $71,820.

3. Ken’s income was stated to be $150,000.

4. Ken was required to pay all the children’s s. 7 expenses. If he was unable to pay such an expense for A, the child would address them with Lisa through Ms. Cook.

5. The table support amount would be reviewed if either R or A began to live away from home for educational purposes;

6. The parties were to share A’s post-secondary expenses proportionate to income, with Lisa contributing 10% (even though her income before spousal support was 48% of the amount earned by Ken);

7. Ken was required to pay Lisa spousal support of $1,900 per month;

8. There was no termination date set out for the spousal support, but it was subject to review if Lisa remarried.

9. The parties were to exchange their previous year’s tax returns and notices of assessment by May 1^st of each year. They were to adjust child support by June 1^st of each year. If they were unable to agree on adjustments to child support, they could return to court.

[30] There is no dispute between the parties that as A approached her sixteenth birthday, the counselling terms of the Coats parenting order were increasingly honoured in the breach rather than the observance. The child attended few counselling sessions with Ms. Cook and access visits with her mother in 2017, the year of the Woollcombe order.

[31] Lisa blames Ken for not honouring the Coats parenting order. Ken answers that the child became increasingly assertive about her counselling and maternal contact. But again, the breaches of the Coats parenting order are not the subject of this proceeding, other than for the very limited purpose of providing context to the parties’ agreement that led to the Woollcombe order.

The Woollcombe Conference and Order

[32] On October 19, 2016, after R completed her term of university studies, Lisa brought a motion to change the Coats support order, seeking to terminate her support obligations for that child. Lisa also sought parenting orders requiring A to attend an intensive program called “Family Reflections Reunification Program”, increase A’s sessions with Ms. Cook, and require weekly access visits between Lisa and A. I have been offered no evidence that Lisa moved for any of that relief on a temporary basis before the parties settled.

[33] On April 21, 2017, the parties attended before Fitzpatrick J. for a dispute resolution case conference. Fitzpatrick J. made some procedural orders regarding financial issues and scheduled the settlement conference, which was ultimately heard by Woollcombe J. on July 24, 2017.

[34] At the commencement of this trial, it became clear that the parties were unable to agree on what was discussed during the settlement conference and exactly what they agreed to that day. In the hopes of sorting those issues out, with the concurrence of the parties and consent of Woollcombe J., I ordered that the transcript of that conference be prepared. I set out below the key statements by the parties and judge, as recorded in the transcript.

[35] Early in the conference, Lisa told Woollcombe J. that she came to court “hoping we would settle today.” The parties then got into a discussion of whether Lisa had provided Ken with the disclosure ordered by Fitzpatrick J., particularly her two previous tax returns. Lisa stated she had placed them in Ken’s mailbox, an assertion that Ken denied. He stated he had only received them that day. In any event, Ken was willing to proceed.

[36] Woollcombe J. stated that she had read the parties’ “mammoth” briefs. She told the parties that she wanted to know “how I can help you to reach some resolution of your financial issues so that the two of you can move ahead with your lives and with parenting your children.”

[37] The majority of the discussion at the settlement conference dealt with support issues. Each party was of the view that they had overpaid support to the other. Lisa felt that she had overpaid child support for R after she had finished her schooling. Ken believed that he had overpaid spousal support. He told the court that Lisa’s annual income had increased from $71,820 to $87,388 while his had decreased that year from $150,000 to $130,000. Ken stated that Lisa was living with her (then) boyfriend, Mr. Grafton, in a two-income household. He also claimed that Lisa had understated the income that she and Mr. Grafton earned from some jointly owned income-producing cottages. She strongly denied the claim.

[38] Woollcombe J. told the parties that they did not appear to have “an actual interest in rolling up [their] sleeves and bottom lining what the numbers are going to be.” In response, Lisa stated that:

I’m absolutely interested in settling. I want to be fair. I want to pay what I’m - accurately and I want to be paid accurately.

[39] But she added a caveat about Ken, stating that:

I have a very - I get very careful around Mr. Forbes. I don’t - I don’t want to be manipulated. That’s why I have always needed an authority figure in this situation to come in and cut through everything and just - let’s stick to the numbers and go from there. And I’m willing to settle with whatever that is.

[40] Ken responded that he was “willing to go in the hallway and see if [they could] come up with a number.” Woollcombe J. concurred with the idea, telling the parties that:

You know, it doesn’t make any sense for this to drag on. I get that you want – you both want it to end but that means you actually have to roll up your sleeves and do the work, or pay a lawyer to do it.

[41] The talk then turned, for the first time, to the issues regarding A. Ken spoke of her age and circumstances, being in the last year of high school. Woollcombe J. then turned to Lisa to ask what she wanted regarding A. Their exchange went as follows:

LISA FORBES: Yes. I would like – Justice Fitzpatrick already said that there’s nothing really that the court can do to help me with the situation with [A] because of [A]’s age.

THE COURT: Well, the problem is, you know, we’ll tell 16-year-old kids you must live - to be with....

LISA FORBES: I realize that, Your Honour. So, that’s why I didn’t make it an issue for today because it’s a foregone conclusion.

[42] Woollcombe J. and Lisa continued a discussion about the difficulty of forcing a 16-year-old to do anything. Woollcombe J. concluded:

So, we don’t tend to make orders that force her to do something that she may not want to do.

To which Lisa responded:

And that’s why I didn’t put it in today.

[43] Lisa added that she discussed the issue with Fitzpatrick J. She lamented that she “would give anything to change the situation the way it is”, but she had been “erased” from all her children’s lives. Ken responded:

It’s true, the three adult children have not had anything to do with her for six years because of the circumstances of how and when she left.

They’ve been in counselling about it. I encourage them to try and have a relationship but it’s very deep. It’s not as simple. She – I know she takes the position here being the victim, the reality is they would feel it was that.

[44] Ken also claimed that he had nothing to do with A’s reluctance to see her mother, stating:

I tell all the children that they need to figure out how they’re going to have a relationship going with their mom moving forward, all four of them.

[45] Ken went on to relate the story of S’s decision not to invite Lisa to his wedding, due to her alleged interference with his future in-laws.

[46] In response to a question from Woollcombe J., Ken answered that A is not “on the fence” regarding her mother because of Lisa’s alleged interference with A’s friends. However, he asserted that despite “a lot of unfortunate history”, he continued to take A to counselling, that she can go as often as she likes, and that A likes Ms. Cook. He continued, extolling A’s qualities before concluding that “it’s an ugly situation but it’s – it’s got years of history.”

[47] At this point, Woollcombe J. and Lisa engaged in a discussion about the limits of the court’s powers in a situation like hers, a fact which Lisa acknowledged. Lisa stated:

And I realize, you know - it is what it is. As sad as it is, it is what it is. That’s why I didn’t bring it up in this settlement conference.

I came here today hoping to appeal to Mr. Forbes on just a human compassion basis, but I came here with the numbers.

[48] Woollcombe J. then tried to convince the parties to discuss the financial issues that separated them, engaging Lisa in this discussion:

THE COURT: [F]rom my perspective. But, what – what we may be able to do is to figure out the financial issues so that they’re off the table.

LISA FORBES: Is what I’m – that’s why I’m here today.

THE COURT: Well, then I think the two of you need to sit down – are you capable of doing that, sitting down and going through what the numbers are for each year?

[49] Lisa replied that she had doubts about the accuracy of the financial information that she received from Ken, since he is the president of a charity and can control its finances. Ken answered that he could not manipulate the figures as Lisa claimed because he has to answer to a board of directors. After listening to both, Woollcombe J. proclaimed herself ready to move them on to trial. She explained:

You’re miles apart in terms of numbers. I don’t hear both of you saying we – let’s do this. I’m not – I’m not sitting here and crunching the numbers for you. I don’t do that. So, I’m going to send you to trial.

[50] But the parties spoke up as follows:

KENNETH FORBES: I was just going to say, is it possible to go in the hallway and see if the numbers can be worked out.

THE COURT: Are you prepared to do that?

LISA FORBES: Yeah. I will – I will try.

[51] Woollcombe J. decided to let the parties use her courtroom for their settlement discussions. When she returned, after what she described as an hour and a half, the parties had an unsigned, handwritten agreement. With one minor change, their handwritten minutes of settlement became the Woollcombe order.

[52] The parties agreed to a number of financial terms that encompassed the scope of their support obligations to each other, Ken would reimburse Lisa for the child support that she had overpaid for R. He would start paying a reduced amount of spousal support to Lisa, fixed at $1,805 per month. While Ken had claimed that his income had been reduced to $130,000 per year, he agreed to pay spousal support based on the original $150,000 annual figure in the Coats support order and $85,000 per year for Lisa. That was $2,888 less than the figure in her previous year’s income tax return. Lisa would pay a new child support amount of $735 per month for A. Lisa’s financial contributions to A’s post-secondary education were limited to $2,000 per year for three years. Both sets of support, spousal and child, would terminate after A turned 18, on August 29, 2019.

[53] All these terms were incorporated into the Woollcombe order.

[54] One last term in the parties’ agreement and the Woollcombe order was not financial. But it is the reason that Lisa commenced this proceeding. The parties’ handwritten minutes stated that they would meet twice a year, in 2017, 2018 and 2019, with Ms. Cook “to discuss parenting updates and options.” When Woollcombe J. read the parties’ minutes, she inserted, on consent, the word “together”, to clarify that she was ordering the parties to meet together with Ms. Cook twice a year for the three years.

[55] After reading through the minutes, Woollcombe J. pointed out that it would resolve all issues between the parties. Therefore, she wanted to ensure that the parties were acting voluntarily. She stated that “it’s important that both sides are sure that that’s what they want and don’t feel pressure.” She offered options to the parties that would allow them further time to further consider their positions if they wished. In that event, they could later bring the minutes back to her attention by a 14B motion “basket” motion without further court attendance. Ken indicated that he was willing to proceed with the settlement, while Lisa expressed some ambivalence.

[56] Woollcombe J. commented that neither party received everything they sought but that the result is the essence of a compromise. Lisa expressed her lack of trust in Ken, wondering why he was so amenable, after “coming so strong before, fight, fight, fight.” She wondered whether there was a catch. Woollcombe J. answered that question, stating:

I’ll tell you what it is. He wants to have this thing done with. I mean, you just need to read his brief for that. He wants to be – have this over with.

[57] To which Ken strongly agreed, speaking to his legal fees to prepare his brief (even though he was self-represented at the conference itself). He added:

I’m trying to get to the point where she can move on and I can move on. And still try to deal with [A] in a respectful way however we can from here forward. [A] still continues to see Dr. Cook.

[58] Lisa then went back and forth again with Woollcombe J. about whether she would sign the minutes right then or step away and further consider the document’s terms. Woollcombe J. was clear that the option remained open. After waffling a bit, Lisa decided to sign the agreement. Her exchange with Woollcombe J. at that point was:

THE COURT: Are you sure? Because you can’t – you can’t walk away and say, I shouldn’t have done that and bring – come back to court tomorrow and say – I mean, that doesn’t – that’s not a – that’s not a healthy way to do it.

LISA FORBES: No...

THE COURT: So you’ve got to....

LISA FORBES: ...I agree.

THE COURT: You’ve got to feel....

LISA FORBES: I wouldn’t have come back to court this time around if it wasn’t for that was the only way to resolve the situation with the child support for [R] who’s 22 and graduated from university.

[59] Lisa continued her discussion with Woollcombe J., who pointed out that some portions of the agreement were in her financial favour, but that it was a simpler agreement than lawyers would draft. Ken spoke up about what he felt he was giving up. Then, turning to the meetings with Ms. Cook, Ken was quite blunt:

I didn’t want to go meet with Dr. Shelley Cook either from the point of view. I don’t really want these meetings with Ms. Forbes but I will do it.

[60] Lisa responded that she was “feeling more comfortable” after going through the settlement terms as they had. Woollcombe J. assured Lisa that she would not let her sign the agreement if she felt that the terms were unconscionable. She stated that the terms came within the range of reasonable outcomes for all issues. At that point, Lisa and Ken signed the minutes and Woollcombe J. drafted her endorsement, granting their consent order.

Evidence of Shelley Cook about the Meetings called for in the Woollcombe Order

[61] The parties agree that Lisa arranged for them to meet together with Ms. Cook on two occasions in 2017. But they disagree about what happened during those meetings. Lisa claims that Ken failed to offer parenting updates and options, but that he spoke abusively to her. Ken disagreed, stating he did just what he agreed and was ordered to do.

[62] As only three people attended those meetings, the only other evidence about their substance comes from Shelley Cook. Ms. Cook was A’s therapist until 2019 and the facilitator of the meetings ordered by Woollcombe J. Even though Ms. Cook had what she described as a “close relationship” with Lisa, I found her testimony to be fair, thoughtful, and even-handed. She is the closest thing to an independent witness that I heard at this trial. I recount her evidence below.

[63] Ms. Cook testified that, during the parties’ first meeting with her on October 30, 2017, Ken presented Lisa with updates about each child. Those updates took up about half of the meeting. However, as the session went along, both parties seemed to grow frustrated. As Ms. Cook described it, there was broken trust.

[64] Ken was reluctant to divulge too much personal information about their adult children as he was trying to protect their privacy. He said he had told them that he and Lisa were meeting to begin finding ways to have discussions about them. The children responded that what is going on in their lives is none of their mother’s business.

[65] Regarding parenting options, Ken brought up with Lisa that she should not interfere with the children’s lives and not address their partners. He wanted the children to have their own personal space. He advised Lisa not to work through social media to contact the children (something he testified she had done). He made no claims during the meeting about his ability to reconnect Lisa to the children, nor did he assume responsibility for Lisa’s estrangement from the children. Lisa was frustrated by the meeting because she did not feel she had received what she hoped or expected.

[66] Ms. Cook’s notes of that meeting stated:

Today's session was the first of six agreed upon by both Lisa and Ken at a settlement conference with a date of Order in July of this year. This order read that that [sic] the respondent and Applicant will have meetings at the office with my facilitation to discuss parenting updates and options.

Ken presented with updates about each child. Lisa asked some questions. Both seem to grow more frustrated as the session went on. It seemed to me that Lisa wanted more information and options to work with. Ken said that he is giving the updates. I suggested any recommendations to consider as options. Ken said that a starting place from what he overhears the children discuss is their anger at their mother's interference in their personal lives and discrediting their character and to consider what she is doing to look at healing. Christmas giving was also discussed by both parties with some of my input from what I know from some of my discussions with their daughter. The discussion broke down, Lisa said that she needs help from Ken to mend their relationship. Ken said that he has told them on multiple occasions that he has told them [sic] that they will need to address their relationship with their mother. Lisa said that she does not agree he has supported her and [has] been a stumbling [block] instead. Meeting ended with seemingly two frustrated parties that did not feel supported and understood.

[67] The next (and last) meeting between the parties and Ms. Cook took place on December 20, 2017. The atmosphere of this meeting appears to have regressed from the earlier one. The meeting started off uncomfortably. Tensions were high. Ken appeared to be flat while Lisa was emotional. The meeting was uncomfortable from the get-go. Regarding updates, Ken spoke of what was going on in his household (where R and A were still living), who was going where, and who was going to be at his home for Christmas. When Lisa asked for any recommendations, there was a discussion about Christmas gifts for their children. Ken suggested that she give them money, which could help them. There were no other strategies or recommendations raised in the meeting.

[68] After Ken left the meeting, Ms. Cook sat with Lisa for a brief discussion and to console her, as Lisa was upset.

[69] Ms. Cook’s notes of the meeting stated:

Today's session started off uncomfortable. Ken spoke about upcoming Christmas plans, reported on what each child was doing with updates since previous meeting. Lisa asked for any recommendations. The discussion resembled last discussion with both parties presenting frustrated, misunderstood, evidently broken trust.

After Ken left, I sat with Lisa until she was feeling less emotional. Lisa feels the sessions are pointless and suggested that I don't know where they are going and expressed feeling frustrated to [sic] by these sessions.

[70] About four and a half months later, on May 6, 2018, Lisa and Ms. Cook engaged in the email exchange mentioned above. Lisa began the exchange by asking for an update of Ms. Cook’s last session with A. Ms. Cook responded, saying that she would be happy to do so. She added that she “will look at setting up some times for meeting with Ken. It would be helpful if you could give me some dates in June.”

[71] In her response, which touched on a number of recent personal experiences, Lisa rejected Ms. Cook’s request for dates to meet Ken. She wrote:

Please do not approach Ken about another meeting. If he does not initiate it then I would prefer that the meetings not take place. They were not helpful and contributed to the damage. If there are to be any more meetings they must be carefully structured with some positive steps.

I keep hearing over and over the statement Ken made about “I see kids all over the world who don’t have any parents and they Survive.”

[72] In reply, Ms. Cook offered a thoughtful and even-handed analysis of the problems with the structure of the meetings with Ken. She wrote:

The reality is that these meetings are futile in my opinion. All the parties are firm in their viewpoints and they were established before I became involved.

1. You are of the opinion that Ken has alienated them from you (not to say that you had acknowledged some responsibility at your end).

2. Ken is of the opinion that your actions resulted in the children alienating you and is of the mindset that they are adult children and have their own wills and [it] has nothing to do with him.

3. The children are of the opinion that they have good and bad memories but Keith [Grafton] was the dealbreaker for them and the lead up to your relationship with Keith and not ending it is why they refuse to have any kind of relationship.

For the above reasons it is impossible to construct meetings if parties are convinced that their positions are accurate. There is no “room” for mediating and for anything constructive to happen.

In respects to [A], she is upset that your young living group were making some changes. I asked her if she had heard from you and if she would like to have some time to chat about “mom”. She said that she had not heard from you. She said she was glad but sad that you did not pay for her licence. I reminded her that a phone call to mom would [be] an excellent idea to discuss the issue. It would be a great beginning. You may want to send her another note to say hello despite nothing from her end.

[73] This was not Ms. Cook’s first expression of that neutral opinion regarding the parties’ shared responsibility for their conflict. It aligns with the opinion that Ms. Cook had offered to Lisa about seven months earlier. On October 5, 2017, Lisa had written to Ms. Cook, to arrange discuss A and offer dates for her first meeting together with Ken. She asked to first speak to Ms. Cook “to brainstorm and discuss a plan and the best way to approach the meetings”. In response, Ms. Cook wrote:

Happy Thanksgiving!

I believe moving forward the only way any family dynamics can be discussed is to have both of you commit to removing the hostility out of your relationship. I have never been able to get anywhere because of the high conflict nature between the two of you. I do not want to plan behind either yours of Ken’s back. The planning has to be a transparent process that will begin with seeing the both of you for 15 minutes and then we will leave the 30 minutes remaining to organize some goas for the follow up meeting before 2018.

[Emphasis added.]

[74] No meetings were scheduled for 2018. Ms. Cook was asked at trial about Ken’s claim to have attempted to telephone her in February or April of 2018, to try to set up another round of meetings for 2018. He stated that he received no response. Ms. Cook responded that she had no recollection of this, one way or another.

[75] In August 2019, Ken asked Ms. Cook for dates for meetings with Lisa. I will have more to say about the antecedents to that request below. Ms. Cook agreed because her own name was on the Woollcombe order and she did not want to disobey it.

[76] On August 12, 2019, Ms. Cook wrote an email to Lisa in which she indicated that Ken had requested some meeting dates for the three of them to meet. She had offered him some dates and was wondering whether Ken had reached out to Lisa. She stated that she had their names “pencilled in” but was looking for confirmation. Lisa’s response was the desire to speak to Ms. Cook by telephone. They arranged to speak on August 15, 2019. I have not been provided with any evidence of their conversation.

[77] The first meeting date offered by Ms. Cook was August 14, 2019. On the day of the proposed meeting, Ken sent an email to Ms. Cook in which he appears to be coaching her in how to respond to Lisa about meeting that day. He wrote, in what appears to be a proposed script for Ms. Cook:

Ken made the appointments with me because it was his understanding that you (Lisa) wanted the meetings to discuss parenting updates and options.

There were two dates in 2017 but you (Lisa) did not make any appointments in since so Ken made these appointments.

As to why did he make the appointments? Like I said before (above) and I believe he has a few things to share.

If she goes on about other things just ignore her and say; he made three appointments for you to chose two that work for you. Are you coming tonight for 5 pm.

You may want to remind her that she (Lisa) found and picked you for your expertise. And that you have met with me (Ken), the adult children and many times with [A] Which makes you uniquely qualified to facilitate discussion.

Then again is she coming tonight, if she says no ask about the other two dates and again if she says no or doesn't commit then say it is my understanding that Ken is coming to two of the meetings regardless.

If she gets into other issues you can just leave it at, it is your understanding that Ken believes that you (Lisa) wanted the meetings and he booked them, are you attending or not.

Then if yes, see you at 5pm and if no or non committal just leave it at ok I will let Ken know.

Thanks. Hope this helps.

[78] Ms. Cook did not follow Ken’s script in dealing with Lisa.

[79] Lisa did not attend any meetings in August 2019 and did not offer any alternative dates to meet any other time in 2019. Nonetheless, Ken and Ms. Cook met on August 22 and 29, 2019, both times in Lisa’s absence. Ms. Cook testified that she participated in the meetings because her name was on the Woollcombe order and she felt that the order obliged her to participate in the meetings.

[80] During the meetings, Ken offered some updates about A and asked Ms. Cook some parenting questions. He offered no parenting options for the absent Lisa.

Events Preceding the Commencement of this Motion to Change

[81] On Sunday, July 15, 2019, Ken received an emailed letter from Lisa’s present counsel. The letter proclaimed that Ken had “committed a fundamental breach” of the Woollcombe order. Counsel explained that assertion, stating that Ken had “refused to meet with Dr. Shelley Cook twice a year in 2018 and 2019 to discuss parenting updates and options.” Counsel asserted that Lisa only agreed “to have her spousal support terminated by August 31, 2019 on the basis that you would encourage reconciliation with Ms. Forbes and the children.” Counsel threatened to return to court to continue the spousal support (which had not yet been terminated under the terms of the Woollcombe order).

[82] While Lisa had waited until almost two years after the July 24, 2017 settlement conference to make this claim, her counsel only gave Ken two days to reply.

[83] Ken responded on July 17, 2019. He stated that he had not yet had time to obtain legal advice, given the narrow window of response demanded by Lisa’s counsel. But he asserted that he had obeyed the Woollcombe order and that it was Lisa who breached it by refusing to meet with Ms. Cook.

[84] Counsel replied with a lengthy letter, setting out a series of complaints against Ken with regard to both support and Lisa’s desire to reconcile with the children. He added claims that Ken had been “uncooperative, aggressive and combative” to Lisa during the 2017 meetings. He told Ken that “since the last meeting in 2017, you unilaterally terminated the sessions without our client’s knowledge or consent.” In light of the May 2018 email exchange between Lisa and Ms. Cook set out above, and as set out in greater detail below, Lisa’s claim that Ken had unilaterally and secretly cancelled the meetings with Ms. Cook was false.

[85] On August 6, 2019, Ken advised Lisa’s counsel that he had contacted Ms. Cook who “confirmed that Ms. Forbes had not inquired and had not booked any meetings to discuss parenting updates and options in 2018 and 2019.” He stated that Ms. Cook had offered him three dates for three-way meetings at her office: August 14, 2019 at 5 p.m., August 22, 2019 at 6 p.m., and August 27, 2019 at 5 p.m. He stated that he had adjusted his schedule for any of those dates. He further denied the allegations about his conduct in the 2017 meetings and responded to Mr. Ludmer’s other statements.

[86] Ken testified that he attempted to arrange meetings with Lisa and Ms. Cook in August 2019, in response to counsel’s letters. He stated that he sent the proposed “script” to Ms. Cook for her conversation with Lisa because he was trying to do what he could to ensure Lisa’s attendance at the court-ordered meetings, in light of her lawyer’s threats to return to court.

[87] Lisa’s counsel did not respond to Ken’s August 6, 2019 letter for ten days. On August 16, 2019, he wrote that Ken’s “assertions” that Lisa “did not book any meetings with Dr. Cook to discuss parenting updates and options in 2018 and 2019 are not correct. Our client has met with Dr. Cook and has been in contact with her via email at least a dozen times since January 19, 2018.” That letter ignored two key facts. First, the meetings that counsel described did not include Ken. Second, Lisa had rejected Ms. Cook’s attempt to schedule meetings in 2018 and made clear to Ms. Cook that she did not wish any further meetings to occur.

[88] Regarding Ken’s proposed dates to meet Ms. Cook, her counsel’s August 16, 2019 letter effectively declared them a dead letter. He wrote that the three potential dates within “such a short period of time is contrary to the spirit and intent of the order.” He offered no alternative dates or potential steps to move forward. He complained that A’s enrollment in Bible College in Texas (where each of her siblings had previously attended) “compromised” any reconciliation between Lisa and the child. He concluded that Ken’s “actions, or lack thereof make it near impossible for any reconciliation between Ms. Forbes and her daughter.”

[89] Lisa’s counsel went on to assert that Ken’s “intentions were never to proceed in good faith and assist with the fostering of a relationship with [Lisa] and the child(ren).” He then lectured Ken about the value of Lisa having a relationship with their children, Ken’s failure to follow the teachings of his faith about what is best for the children, and his animosity towards Lisa. The letter offered no indication that Lisa was willing to return to the terms of the Woollcombe order or do anything but commence legal proceedings.

[90] On August 16, 2019, Ken wrote back stating that he had attended Ms. Cook’s office on the first date offered for a meeting. Lisa had failed to attend. Ken raised the issue of Lisa’s $2,000 contribution to A’s post-secondary expenses. He again pointed out that Lisa had not inquired about, or booked, any joint meetings with Ms. Cook in 2018 or 2019. He closed by stating that he would attend the other two dates booked with Ms. Cook. In a further letter on August 20, 2019, Ken ended by stating that “[i]n summary, I have booked 3 meetings with Dr. Cook. Ms. Forbes can attend the next 2 or has 4 months within which to schedule meetings.”

[91] In response, Lisa’s counsel wrote on August 22, 2019:

It was not until after receiving our letter that you felt forced to comply with the Order and are now attempting to schedule meetings with Dr. Cook; all to occur within a 2-week span, which unfortunately does not allow for the reconciliation process to work. Clearly, you had no intention to proceed in good faith.

[92] Again, while Ken had previously stated that Lisa had a choice of attending on the two other dates that he offered, or that she had “4 months within which to schedule meetings”, Lisa’s counsel offered no alternative dates, meetings, or options. Instead he concluded, “We are proceeding to commence our client’s legal proceeding against you.”

[93] Ken did attend two further sessions with Ms. Cook in August 2019, on dates he had offered to Lisa. He testified that he hoped that she would attend, but she refused to do so. How, he asks, could he have breached the Woollcombe order regarding the 2018 and 2019 meetings, when it was Lisa who refused to attend those sessions?

Issues:

[94] This case raises the two following issues:

1. What were the terms of the parties’ agreement and the Woollcombe order regarding the Shelley Cook meetings?

2. Did Ken breach the letter or spirit of the Woollcombe order?

[95] If the answer to question 2 were in the affirmative, I would consider the appropriate remedy in a separate hearing.

Issue No. 1: What were the terms of the parties’ agreement and the Woollcombe order regarding the Shelley Cook meetings?

The Issue of Ken’s Representations to Lisa

[96] The wording of the Woollcombe order regarding the six Shelley Cook meetings is, at face value, rather straightforward. The Woollcombe order only requires meetings, not results. It requires discussions about parental updates and options, nothing else. But Lisa argues that she entered into the minutes with Ken based on his representations that he alone could resolve her relationship with the parties’ four children and that he would be willing to do so if they settled upon his terms. She says that those representations were implicitly incorporated into the Woollcombe order. That is what her lawyer described as the spirit of the minutes and the Woollcombe order. Lisa’s lawyer argues that the spirit of the Woollcombe order, as Lisa describes it, is binding on Ken.

[97] Ken strongly disagrees. He states he would never say that he alone could or would be able to reconcile Lisa to the children. After more than six years of conflict, the children had their own views regarding their mother. Three of them were adults at the time of the settlement conference, while the fourth was approaching her sixteenth birthday. Two of those adult children were living on their own. One was married. Ken maintains that he could not force them to do anything regarding their mother just because he wanted them to do it.

Interpretation of the Terms of the Woolcombe Order

[98] When interpreting orders, courts must be careful to avoid overly literal and decontextualized interpretations which avoid the point of the order. In Royal Bank of Canada v. 1542563 Ontario Inc., [2006] O.J. No 3811, 2006 32629 (Ont. S.C.), Mossip J. drew on the existing caselaw to summarize the principles that apply to the resolution of disputes over the interpretation of an order. She wrote at para. 4:

where there is a dispute, a Judge can make an order to ensure the original order is carried out in a manner that makes sense. I refer to the following principles from some of the jurisprudence in this area. These cases make it clear that courts should interpret the language in order to give:

• "a broad and liberal interpretation to achieve the objective of the court in making the order". See, C & K Mortgage Services Inc. v. Fasken Campbell Godfrey, [2000] O.J. No. 2266, 2000 CarswellOnt 2119 at paragraph 2.

• "In accordance with the general rules of interpretation, the language used in a judgment or order must be construed according to its ordinary meaning and not in some unnatural or obscure sense." See, Brosseau v. Berthiaume, [1993] O.J. No. 532, 1993 CarswellOnt 3118, at paragraph 9.

• "Even when lawyers take the greatest amount of care in drafting Consent Agreements geared towards resolving problems, every eventuality cannot be covered. Developments beyond the contemplation of the parties often appear. Life is fluid. It is not static. A certain flexibility must be given to the interpretation of Court Orders. See, Tatarenko v. Tatarenko, [2005] A.J. No. 498, 2005 CarswellAlta 588 at para. 14.

• "Instead, Courts should, on the one hand, examine the context in which the order was issued, and evaluate it according to the specific and particular circumstances of the case and, on the other hand, ask themselves whether or not the defendant could have reasonably been aware that his acts or omissions fall under the order.

In other words, a defendant cannot hide behind a restrictive and literal interpretation to circumvent the order and make a mockery of it and of the administration of justice." See, Bhang v. Chau (2003), 2003 75292 (QC CA), 229 D.L.R. (4th) 298 (Que. C.A.) at paragraphs 31 and 32.

[99] Mossip J.’s analysis was approved in the family law context in numerous cases: Power v. Jackman, 2008 NSSC 389, 278 N.S.R. (2d) 31, at para. 17; Young v. Young, 2014 NSSC 261, 348 N.S.R. (2d) 1, at paras. 49-50; MacNeil Estate v. Woodman, 2011 NSSC 288, at para. 24; S.B.G. v ADI., [2013] B.C.J. No. 1849 (B.C.S.C.) at para. 11; Randell v Randell, 2012 SKQB 350 at para. 10; and Greenwood v Greenwood, 2021 SKQB 33, 2021 SKQB, at para. 33.

[100] Here, the court must determine whether, as Lisa asserts, the binding spirit of the Woollcombe order included an obligation for Ken to do more than discuss parenting updates and options with Lisa. In other words, whether he was required to reconcile her with their children.

[101] In order to engage in that analysis, it is necessary to first consider whether Ken misrepresented his willingness and ability to engage in that reconciliation process. If Ken is found to have made the representation that Lisa asserts, the court must next look to whether it formed an implicit part of the Woollcombe order.

[102] For the reasons set out below, I find that Ken made no such representations. There was neither an implicit term, nor a spirit of the Woollcombe order which imposed on Ken the task of reconciling Lisa to their children. Rather, the Woollcombe order only required that Ken attend and participate in the meetings in good faith, offering Lisa parenting updates and options as he understood them. Further, Lisa shared the same obligation.

Credibility

[103] Only Lisa and Ken were present in the courtroom on July 24, 2017 after Woollcombe J. took her leave. Thus, this court must consider which party’s account of the terms of their agreement, if any, is credible. Lisa’s counsel submitted that her account of Ken’s representations and the spirit of their agreement must be believed because she is the more credible party. Among her counsel’s arguments in favour of her credibility, compared to that of Ken, were the following:

1. Lisa gave her evidence in a “forthright and honest” manner, not shaken in cross-examination by the self-represented Ken.

2. In comparison, on a number of occasions when confronted with “probing” questions by Lisa’s counsel, Ken’s answer was that he did not recall. Lisa says that Ken’s claims of memory failure are not believable. For example, he could recall with great clarity what occurred at the July 24, 2017 settlement conference with Woollcombe J. But he claimed to be unable to recall whether he saw A during a 2019 business trip to Texas, where A was studying at Bible College. Ken also stated that he could not recall whether Lisa expressed dissatisfaction with what occurred during the 2017 meetings with Ms. Cook. Ms. Cook’s notes spoke of that dissatisfaction. Counsel points to other instances where Ken stated that his memory failed him.

3. Lisa’s evidence was supported by that of her husband, Keith Grafton, her pastor, Rev. Lawrence Blair Clark, as well as her two close friends, Sarah Jensen, and Shelly Marie White. Lisa’s counsel described their evidence as “straight forward, direct, and responsive”. Mr. Grafton spoke of how apprehensive Lisa was prior to the settlement conference. She had primarily participated in the proceeding because of her frustration with her attempt to end support for R. Nonetheless, in Mr. Grafton’s telling, Lisa was ebullient and optimistic following the settlement conference. Rev. Clark spoke of Lisa’s excitement with the outcome of the settlement. Sarah Jensen spoke of an incident that she witnessed at A’s 2019 high school graduation, which points to Ken’s non-acceptance of Lisa and Mr. Grafton. Shelly Marie White testified about her observations of Lisa’s relationship with A and the events of A’s graduation. Lisa says that none of these witnesses was shaken in cross-examination.

4. Ken told Woollcombe J. that his income would be $130,000 in 2017. But he claimed an income of $142,000 in his 2017 income tax return. When he signed a pre-nuptial agreement with his present wife in August 2018, he stated that his income was approximately $150,000 per year.

5. While Ken claims to have unsuccessfully attempted to contact Ms. Cook to arrange meetings with Lisa in 2018, Ms. Cook does not corroborate that claim (she did not recall whether that occurred);

6. Ken provided updates about the children at this trial that he had not previously offered to Lisa, citing the children’s confidentiality. His willingness to offer those updates at this trial proves that his rationale for withholding information was false.

7. Ken stated in chief that he booked sessions with Ms. Cook in August 2019 “in regard to parenting updates and options.” Yet Lisa says that he offered no such updates and options during the August 2019 meetings with Ms. Cook, which she refused to attend.

8. Ken stated that he wanted to return to court in 2016 because Lisa was not providing him with her tax returns. Yet in his response to her motion to change, he sought to dismiss Lisa’s requests for added parenting time with A and the child’s attendance at a reunification program. This represented what Lisa described in her written argument as an “inconsistency”.

9. When asked about A’s attendance at counselling sessions with Ms. Cook, Ken’s answers were inconsistent. He first questioned Ms. Cook’s records because of a flood in her office, but then later relied on them in preparing his own brief.

10. Ken claimed that the consideration for the end of spousal support was the end of child support. But considering that spousal support was owing for an indefinite period and the child support would be time-limited, Lisa says that Ken’s answer is not credible.

11. Ken said that the reason for the sessions with Ms. Cook were to be “helpful”. But, in Lisa’s view that answer “is not in accordance with either Lisa’s nor Ms. Cook’s evidence, and Kenneth is not credible on the point.”

12. Ken said that Lisa presented no parenting options to him during the 2017 meetings with Ms. Cook. Yet she sent him an email on August 27, 2017 (about six weeks before the first of the two 2017 meetings) requesting to consult with him about paying for A’s driving education as a gift for her sixteenth birthday. Presumably Lisa is arguing that this evidence contradicts Ken’s evidence.

13. Ken claimed that Lisa had breached the Coats support order by not providing her tax returns by May 1^st of 2018 and 2019 (Lisa claimed to have placed them in his mailbox). Yet he conceded that they were served with her motion to change materials, issued on August 26, 2019. Presumably Lisa’s argument is that by serving the financial statements with her pleadings, she did not violate the annual May 1^st deadline and that Ken was not speaking the truth.

14. In his August 14, 2019 email to Ms. Cook, Ken attempted to secretly coach her to convince Lisa to attend two meetings that year. In doing so, he attempted to control Ms. Cook and use her to falsely place himself in the highest light. Lisa also contends that Ken asked Ms. Cook to make false statements on his behalf. These facts diminish his credibility.

[104] All of that being said, as Ken pointed out, there are also reasons to doubt the credibility of much of Lisa’s evidence as well. Perhaps most importantly, the transcript of the settlement conference contradicts much of what Lisa said about the parties’ discussions that day. In particular:

1. Lisa says that Ken induced her to enter into the minutes with a representation that he alone could fix her relationship with the children and would do so if they settled. Yet the transcript shows that Ken said nothing of the sort during the conference, whether before or after the minutes were drawn up.

2. Lisa asserts that the terms of the settlement were dictated by Ken, a claim he denies. But again, she said nothing of the sort during the conference. Even after the minutes were drawn up and she was expressing her ambivalence about signing them to Woollcombe J., she said nothing about Ken dictating the minutes.

3. Ken’s comments during the conference undermine Lisa’s assertion that he claimed to be able to solve her issues with their children. Ken was consistent in stating that the problems between Lisa and the children were long-standing and continuing. In fact, he pointed to some recent behaviours by Lisa, which he contended that S and A found to be interfering and off-putting. Ken never said during the conference that he had any ability to “fix” the relationship problems between Lisa and the parties’ children.

4. What Ken did say in open court during the conference, after the minutes were drawn up but before they were signed, was that A would continue to see Ms. Cook, whom the child liked. He candidly added that he had no desire to attend the meetings with Lisa and Ms. Cook, but would do so. Those are not the words of a man attempting to oversell a potential agreement.

5. In fact, the only discussion during the conference about any improvement in Lisa’s parenting relationships with any of her children dealt with A. Of the seventeen references to R in the transcript, sixteen concerned child support. The only reference in the transcript to S was apropos the reason he did not invite Lisa to his wedding; her alleged interference with his future in-laws. There were no references to N.

6. If there were more to the parties’ agreement than meets the eye, it was not manifest to Woollcombe J., who treated the term about the meetings with Ms. Cook at face value.

7. If there were more to it than that, it was open to Lisa to offer her alternative understanding to Woollcombe J. But Lisa never spoke up to repeat Ken’s alleged representations about his ability and willingness to resolve Lisa’s estrangement with the children. There is no reference to any such representations in the transcript.

8. Lisa claimed in her evidence that her negotiations with Ken took only about fifteen minutes. But after she returned to court, Woollcombe J. stated that the parties had taken an hour and a half to talk. Neither of the parties disagreed with that assessment of the passage of time.

9. The transcript shows that Lisa stated that she came to the conference believing that there was little she could do about parenting issues. But she wanted to deal with the support issues. Mr. Grafton confirmed Lisa’s motivation to deal with the support issues at the conference. Further, most of the discussions during the conference dealt with the parties’ incomes and support obligations, not parenting.

[105] Other than the transcript of the settlement conference, there are other reasons to question Lisa’s credibility. Lisa claimed in her trial affidavit that one example of Ken’s “bad faith” and other misconduct was that he “wilfully breached the [Woollcombe] Order when he refused to attend any further sessions with Dr. Cook beyond December 2017.” That statement is untrue on two levels. First, as set out above, Lisa had already told Ms. Cook that she wanted no more meetings with Ken. She refused Ms. Cook’s request to supply dates for such meetings. She instructed Ms. Cook not to arrange any further meetings unless Ken initiated them. Second, Ken was clearly willing to attend those sessions. The proof came in the pudding when Lisa’s lawyer wrote to Ken in July 2019. Ken quickly scheduled three such sessions. It was Lisa who refused to attend.

[106] I add that some elements of counsel’s correspondence with Ken, setting out Lisa’s allegations against him, contain untruths and half-truths about the meetings with Ms. Cook. Counsel claimed, on behalf of Lisa, that Ken had unilaterally and secretly cancelled the meetings with Ms. Cook. That was false. Further compounding that falsity was the fact that it was Lisa who directed Ms. Cook not to schedule any meetings unless Ken initiated them, because she had no desire to attend them. The credibility issue is not with counsel, who can be assumed to have followed the instructions of his client. It is with the client who provided those instructions.

[107] Considering the arguments set out above, there are clearly credibility problems on both sides. Some of Lisa’s arguments against Ken’s credibility are appropriate and diminish his credibility. For example, there were a number of times that Ken claimed to be unable to recall events or details when confronted by Lisa’s counsel in cross-examination. A number of those purported memory lapses strain credibility. In addition, Ken’s representations about his anticipated $130,000 income for 2017 turned out to be inaccurate. That being said, he did agree to continue to pay support based on the original $150,0000 income figure and his income did eventually fall, as he predicted.

[108] Furthermore, some of Lisa’s arguments against Ken’s credibility and in favour of her own were strained, immaterial, or unaligned with the evidence. The evidence of her husband, pastor, and two close friends was of little assistance. That is both because of their close relationship to Lisa and because most of what they offered was not material to the issues in this trial. I add that many of Lisa’s claims about the most material issues in this proceeding were not supported by the transcript of the settlement conference or the evidence of Ms. Cook.

[109] I do agree with Lisa that Ken’s attempts to direct Ms. Cook’s responses to Lisa on August 14, 2019 detract from his credibility. He attempted to secretly direct Ms. Cook’s correspondence with Lisa when threatened with further proceedings. But his conduct in that regard finds some parallels in Lisa’s May 6, 2018 correspondence with Ms. Cook. Both parties attempted to secretly direct Ms. Cook regarding the meetings; Lisa to cancel them and Ken to reinstate them. Thus, there is only so much that I can take from Ken’s August 14, 2019 email to Ms. Cook to detract from his credibility relative to that of Lisa.

[110] Because of the problems with the credibility of both parties, I cannot say that, where the evidence of one party contradicts the other, I prefer one over the other. Rather, I must look to the most credible and reliable evidence available. That is mainly the transcript of the settlement conference and the evidence of Ms. Cook (including her correspondence and notes).

[111] Based on the evidence of the transcript and the positions taken by the parties before Woollcombe J., I do not find that Ken represented to Lisa that he could resolve her relationship problems with their children. He said nothing of the sort in the transcript, whether before or after the parties met alone and arrived at their minutes.

[112] Going a step further, I do not find that an implicit term of the agreement or the spirit of the Woollcombe order called for Ken to take on the role of reconciling Lisa to the children. Ken and Lisa ended their marriage with a fractured relationship, one echoed in Lisa’s fractured relationship with the children. I am not in a position to allocate blame for that state of affairs.

[113] But rather than promise Lisa a rose garden of reconciliation, I find that Ken agreed to participate in a more tentative and realistic process; one that carried the potential for thorns among the blooms. He agreed to six meetings with Lisa and a counsellor to discuss updates and options regarding the children. That was six more meetings than Lisa would otherwise have received, even had she gone to trial in 2017. As Lisa admitted at the settlement conference, this court was unlikely to offer her any further parenting relief because of the ages of all four children.

The Problems with Lisa’s Quid Pro Quo Argument

[114] Lisa’s counsel argues that this analysis of the parties’ agreement is far too superficial. It misses what he describes as the “quid pro quo”. Lisa gave up her right to indefinite term spousal support in the minutes. She must have received something of equal value in return. Thus, the minutes and the Woollcombe order must be interpreted as including what Lisa now sees as equal value: Ken’s obligation to reconcile her with their children.

[115] That argument misses four points.

[116] First, for an agreement to be binding, the consideration need not meet some objective standard of sufficiency. In Re Canadian Pacific Ltd. (1996), 1996 8029 (ON SC), 30 O.R. (3d) 110, [1996] O.J. No. 2412 (Gen. Div.), Blair J., as he then was, considered the issue of sufficiency of consideration within the context of an old law school chestnut, the value of a peppercorn as consideration for a bargain. He wrote at p. 18 (QL):

Comparing a premium paid to one class of shareholders for conversion with that paid to another class of shareholders is like trying to answer the classic law school question relating to the appropriateness of the price of a bargain -- "Is a peppercorn adequate consideration?" It cannot be answered because no one can say with confidence what factors played on the mind of the person accepting the peppercorn or weigh those factors in that person's stead -- and different factors have different meaning for different persons.

[117] In sum, the law will generally not enter into an investigation of the adequacy of the consideration, as long as it exists. As Estey J. wrote for the Supreme Court of Canada in Calumsky v. Karaloff, 1946 24 (SCC), [1947] S.C.R. 110, “[M]ere inadequacy of consideration is not a ground for disturbing the contract”: see also Loranger v. Haines (1921), 1921 520 (ON CA), 50 O.L.R. 268, 64 D.L.R. 364, [1921] O.J. No. 203 (Ont. S.C. – App. Div.).

[118] That point even applies to formal domestic agreements within the family law context. While such agreements are not necessarily binding on courts, particularly in the determination of support, they are to be afforded great deference and treated as contracts. As Bastarache and Arbour JJ. wrote for the majority of the Supreme Court of Canada in Miglin v. Miglin, 2003 SCC 24, at para. 90:

91 Although we recognize the unique nature of separation agreements and their differences from commercial contracts, they are contracts nonetheless. Parties must take responsibility for the contract they execute as well as for their own lives.

[119] Recall as well that Ken was candid in telling Woollcombe J. that he had no desire to meet with Lisa and Ms. Cook. As stated above, those are not the words of someone making the grand promises that Lisa claims he made. But Lisa saw a value in such meetings, whether or not they later met her expectations. It is not the role of this court to second guess her interpretation of that value.

[120] Second, while not necessarily of equal monetary value, Ken offered some financial consideration for the agreement and order. He agreed to reduce the term of Lisa’s child support obligations for A to just over two years, at a time when that child was less than sixteen years of age. He agreed to base the support payments on an annual income slightly below Lisa’s actual income. And he limited her responsibility for A’s university expenses to $2,000 per year when it would otherwise have been far greater than that amount.

[121] Third, as the authors of the Spousal Support Advisory Guidelines[^4] (the “SSAG”) point out in the title to SSAG s. 13.8, “Indefinite Support is not Permanent Support”. In other words, the Coats support order did not offer Lisa spousal support without end. As the SSAG further states in s. 13.8:

Entitlement may then be revisited for any number of reasons — the recipient finding employment, the recipient’s remarriage or re-partnering, the payor’s retirement or loss of employment, etc. — and support may be terminated if entitlement has ceased.

[122] The SSAG is clear at s. 14.7 that re-partnering or remarriage may result in a significant change or even termination of indefinite term spousal support.

Where the recipient remarries or re-partners with someone who has a similar or higher income than the previous spouse, eventually — faster or slower, depending upon the formula adopted — spousal support would be extinguished. We have been unable to construct a formula with sufficient consensus or flexibility to adjust to these situations, despite considerable feedback that a formula would be desirable. In this final version, we still have to leave the issues surrounding the recipient’s remarriage or re-partnering to individual case-by-case negotiation and decision making.

[Emphasis added.]

[123] The applicability of the SSAG provisions set out above, were recently reiterated by Tulloch J.A., writing for the Court of Appeal for Ontario in Politis v Politis, 2021 ONCA 541. Tulloch J.A. found that the SSAG, when viewed as a whole and not just through the lens of its “short-hand formulas”, offers the court “principled” and “overall” guidance on the determination of spousal support entitlement and amounts: para. 29, 35, 38, 48.

[124] Tulloch J.A. also looked to the 2016 SSAG Revised User’s Guide to support the proposition that re-partnering can lead to the termination or reduction of spousal support payments. He wrote:

32 Section 16 the Spousal Support Advisory Guidelines: The Revised User’s Guide (Ottawa: Department of Justice, 2016), echoes the sentiment in instructing that re-partnering “does not mean the automatic termination of spousal support, but support is often reduced and sometimes even terminated.” This depends on “whether support is compensatory or non-compensatory, as well as the length of the first marriage, the age of the recipient, the duration and stability of the new relationship and the standard of living in the recipient’s new household.”

[125] Fourth, Lisa’s potential marriage to Keith Grafton, a man with a six-figure income, was anticipated by the Coats support order. That marriage would have triggered Ken’s right to review his spousal support obligations without proof of any further material change in circumstances. Recall that Lisa and Mr. Grafton married before A’s eighteenth birthday. In light of those facts and the SSAG guidance set out above, it is conceivable that Ken’s spousal support obligations would have been reduced or even terminated by the time set out in the Woolcombe order: following A’s eighteenth birthday.

Conclusion Regarding the Terms of the Parties’ Agreement and the Woollcombe Order Regarding the Shelley Cook meetings

[126] For all the reasons set out above, I find that Ken made no representations to Lisa that he could, or would, reconcile Lisa with their children. More to the point, the letter and spirit of the Woollcombe order required both Ken and Lisa, together, to attend the six meetings with Ms. Cook. At those meetings, they were to discuss parenting updates and options in good faith. There was no other quid pro quo in their agreement or the Woollcombe order.

Issue No 2: Did Ken breach the letter or spirit of the Woollcombe order?

[127] In Chirico v. Szalas, 2016 ONCA 586, 132 O.R. (3d) 738, at para. 54, Epstein J.A., writing for the Court of Appeal for Ontario, wrote of the obligation of the parties bound by an order to obey both its letter and spirit:

[54] This court has rejected a formalistic interpretation of the relevant order. It is clear that a party subject to an order must comply with both the letter and the spirit of the order: Ceridian Canada Ltd. v. Azeezodeen, 2014 ONCA 656, at para. 8. That party cannot be permitted to "hide behind a restrictive and literal interpretation to circumvent the order and make a mockery of it and the administration of justice": Boily, at para. 59; Sweda Farms Ltd. v. Ontario Egg Producers, 2011 ONSC 3650 (S.C.J.), at para. 21.

[128] Lisa is adamant that Ken breached both the letter and spirit of the Woollcombe order. She says that he did so by:

1. Failing to offer her the requisite “parenting updates and options” during the two 2017 meetings;

2. Verbally abusing her during the two 2017 meetings;

3. Failing to attend the meetings in 2018 and 2019.

[129] Ken responds that he attended and participated in the meetings in 2017. He says that he tried to arrange them for 2018, while Lisa instructed Ms. Cook to the contrary. He actually arranged them in 2019, but Lisa refused to attend. He adds that he complied with his obligations to offer parenting updates and options during the two 2017 meetings, whether or not they were to Lisa’s satisfaction. He denies speaking wrongly to Lisa during the 2017 meetings. If she wanted to make changes to the meetings, she failed to inform him of that desire or offer an alternative process for the meetings.

[130] As set out above, I do not accept the word of either party over the other when they disagree. When attempting to determine what occurred during the 2017 meetings and who was responsible for the failure to meet together in 2018 and 2019, I look to the most credible and reliable evidence available. That evidence is Ms. Cook’s testimony, notes, and correspondence with Lisa. I set out my findings, guided by that evidence, below.

Ken’s Offering of Parental Updates and Options During the 2017 Meetings

[131] It is clear, particularly from Ms. Cook’s notes and testimony, that Ken did offer what he understood to be parenting updates and options during the 2017 meetings. But it is also true that Lisa did not find them to be either satisfactory or sufficient. That is why each became frustrated with the other. After many years of conflict, that should not be particularly surprising.

[132] Despite the parties’ differing perceptions, I do not find that the evidence taken as a whole, and in particular that of Ms. Cook, shows bad faith by Ken at the meetings. He did give updates at each meeting. He offered what Ms. Cook said should be considered options. It should also be recalled that the 2017 meetings were likely the first two meetings of their kind between the parties since their very acrimonious separation. The fact that the parties were not entirely synchronous with each other at those meetings is unsurprising. They could have used the experience of the meetings to build on and improve further meetings. But they were not able to do so, a failing that likely falls at both of their feet.

Allocation of Responsibility for the Futility of the Meetings

[133] I add the three following points about the responsibility for the futility of the two 2017 meetings. First, while Lisa and Ms. Cook may have agreed that the meetings were “futile”, they differed on the assignment of responsibility for that state of affairs. Lisa saw the fault as entirely falling at the feet of Ken. That understanding aligns with the position that Ms. Cook ascribed to Lisa in her May 6, 2018 email. Lisa’s one-sided assignment of fault is likely why she gave up on the meetings, feeling that they could never improve. Lisa took Ms. Cook’s comments as confirmation of that view.

[134] But that was not the opinion which Ms. Cook actually offered to Lisa on May 6, 2018. Ms. Cook’s opinion was far more balanced and nuanced than that. In Ms. Cook’s May 6, 2018 analysis, the meetings were futile because all of the parties involved were stuck in their positions; Ken, Lisa, and the children.

[135] Second, there is no evidence that Lisa asked Ms. Cook to speak to Ken to see whether some changes to the structure of the meetings could improve them. She did not even ask for Ms. Cook’s advice on what changes could improve the meetings.

[136] Third, Lisa took no steps herself to change or improve the meetings. If Lisa felt that the meetings were futile unless there was some change in their structure, she could have taken steps to reduce that futility. She could have asked Ken, the third interlocutor in the meetings, to join the discussion. After all, any changes to the meetings would have required his acquiescence. But he was not invited to participate in that discussion between Lisa and Ms. Cook. It went on behind his back, just as Ken’s attempt to coach Ms. Cook’s discussions with Lisa on August 14, 2019, went on behind Lisa’s back.

[137] Whether the meetings would have improved had the parties and Ms. Cook discussed a different approach to them will never be known. But there was no chance of having better meetings unless Ken was offered the opportunity to participate in improving them. Lisa did not offer that opportunity and did not bother to tell Ken of her change of position. She just decided that the meetings had no further utility for her. But that alone does not put Ken in breach of the Woollcombe order.

[138] The exclusion of Ken from the May 6, 2018 correspondence was a conscious choice by Lisa. She was clear that she “would prefer that the meetings not take place.” Having said that, it did not lie in her mouth to blame Ken exclusively for the breakdown in the meetings, much less for their end after 2017. Yet that is just what her lawyer asserted in his 2019 correspondence with Ken, and what she wants this court to accept.

[139] In sum, when allocating responsibility for the breakdown in the parties’ meetings with Ms. Cook, I do not see the counselor’s evidence as assisting Lisa any more than it assists Ken. In fact, far from blaming Ken for the breakdown in the 2017 meetings, Ms. Cook’s evidence as a whole, and in particular her email exchange with Lisa of May 6, 2018, shows that the problems with the meetings were – to borrow a term – structural. That is, the parties’ problems during the meetings were embedded in the structure of their relationship at the time. Neither party had moved from their view that the other was solely responsible for Lisa’s estrangement from the children. The meetings, as structured, were not going to change that.

Ken did not Act in Bad Faith or in Breach of the Woollcombe Order During the 2017 Meetings

[140] Clearly, Lisa felt that Ken could, and should, have delivered more than he did at the meetings. During the trial, her counsel referred to Ken’s obligation to deliver to Lisa the “secret sauce” for reconciliation. He spoke as if Ken could deliver the one ingredient that makes double-decker hamburgers and long-estranged families whole and successful. But I have already found that Ken made no agreement to offer such a recipe. In fact, based on the limited information available to the court, it is doubtful that such a recipe exists or that if Ken attempted to apply it, the parties’ children would find it palatable. Their minds appear to have been long made up. From her May 6, 2018 email, that appears to be Ms. Cook’s view as well.

[141] It may well be that Ken could have been kinder to Lisa at the meetings. There may well have been more that he could have offered her. But Ms. Cook did state that he offered updates. Those updates took half of the first 2017 meeting. The options that he offered to Lisa about avoiding interfering with the children through family, friends, or social media, and to provide monetary gifts, may have seemed paltry and even demeaning to Lisa. But they were real options that could have represented a start during the first set of meetings.

[142] Perhaps a different approach by a counsellor specializing in reconciliation therapy may have helped. But both parties chose Ms. Cook. I do not wish to place any blame on her for the lack of success of the meetings.

[143] On the evidence, particularly that of Ms. Cook, I have no reason to believe that Ken acted in bad faith in the 2017 meetings or in breach of either the letter or spirit of the Woollcombe order.

Ken did not Breach the Woollcombe Order Regarding the 2018 Meetings

[144] It is difficult to see how Ken breached the Woollcombe order regarding the 2018 meetings. Lisa displayed no interest in continuing the meetings after 2017. From her May 6, 2018 email to Ms. Cook, it is clear she wanted nothing more to do with them.

[145] Further, it was Lisa, not Ken, who refused to provide Ms. Cook with dates for such meetings in 2018. Recall that Lisa was the one who made the arrangements for the meetings in 2017. It would have been reasonable for Ken to believe that she would do so for 2018 as well. Whether or not he called Ms. Cook to arrange meetings in 2018, he could be no more liable than Lisa for the failure of the parties to meet together with Ms. Cook in 2018, as ordered by Woollcombe J.

[146] I cannot find that Ken breached the Woollcombe order regarding the 2018 meetings.

Ken did not Breach the Woollcombe Order regarding the 2019 Meetings

[147] Further, even when Lisa’s counsel wrote to Ken in July 2019, remonstrating about his alleged breaches of the Woollcombe order, Lisa had no interest in having the meetings under that order restored. Ken offered Lisa a choice of three different meeting dates. He even stated that she had four more months in 2019 to attend the meetings. It was Lisa who refused to attend.

[148] Lisa claimed at trial that it was too late to comply with the Woollcombe order, that it expired on A’s birthday on August 29, 2019. That excuse is contrary to the clear wording of the order, which only required two meetings in 2019, but set no deadline for them to occur. Lisa was represented by experienced family law counsel at the time she decided not to attend meetings with Ken and Ms. Cook in August 2019. She could not have misunderstood that portion of the order.

[149] While Lisa argues that Ken breached the Woollcombe order regarding 2019 meetings, I do not agree. Ken was willing to attend the meetings in 2019. In fact, he attended twice at Ms. Cook’s office for such meetings, only for Lisa to refuse to either attend or offer alternate dates in 2019.

Conclusion that Ken did not Breach Either the Letter or Spirit of the Woollcombe Order

[150] For all the reasons set out above, I conclude that Ken did not breach either the letter or spirit of the Woollcombe order. Accordingly, I find no material change in circumstances since the time of the Woollcombe order.

The Application of Rule 1(8)

[151] Based on my findings above, it is not necessary to respond to the Lisa’s arguments regarding the application of r. 1(8) to the facts of this case. However, Lisa insisted on amending her pleadings at trial to add a claim under that subrule. For that reason, I find it necessary to add the following points about the timing of her twelfth-hour claim for relief under r. 1(8).

[152] If Lisa felt that Ken had breached the letter or spirit of the Woollcombe order, she could have moved to require compliance under r. 1(8) at the time of the alleged breach(es). For example, she could have moved early in 2018, following the second, unsatisfactory to her, meeting. Or she could have moved later in 2018 when neither of them had arranged for any meetings that year. But that would have avoided one inconvenient fact: Lisa had decided that she no longer wanted any such meetings.

[153] While Lisa may have been the one who originally sought the meetings, the Woollcombe order made clear that the obligation to attend them together fell on both of them. So, by withdrawing from the meetings in 2018 and failing to attend in 2019, Lisa was at least as much in breach of the Woollcombe order as Ken. She was not in a position to point her finger at Ken. Yet she did just that.

[154] With her pleadings amendment following the commencement of this trial, Lisa invited the application of r. 1(8) over four years after the first meeting, and thus the first alleged breach of the Woollcombe order. Her amendment even came more than two years after her counsel first wrote to Ken, alleging breaches of the Woollcombe order.

[155] I remind myself that r. 1(8) is remedial in nature: Bouchard v. Sgovio, 2021 ONCA 709, at para 49. It is used to elicit compliance with a court order: ibid at para. 51. While there is some debate about the breadth of substantive orders that can be made under r. 1(8), an order made under that subrule should facilitate compliance with the underlying order: ibid at para. 54.

[156] Yet, despite her insistence on amending her pleadings after the start of trial, Lisa does not seek to rely on r. 1(8) to require compliance with the Woollcombe order. She no more wishes Ken to comply with that order at this time than she wishes to do so herself. As set out above, the time for all that is long past.

[157] After many days of trial, I must say that there is something wrong with this picture.

[158] Had Lisa thought that Ken had breached the Woollcombe order, the time to employ r. 1(8), was in 2017 or 2018. Even 2019. Lisa’s decision to wait so long to bring a proceeding against Ken under r. 1(8) undermines the very raison d’etre of r. 1(8): compliance.

[159] There may have been time, years past, to fix the meetings. Ken appears to be a rigid man. I do not know whether he could or would have agreed to change the meetings in a manner that would have satisfied Lisa. We will never know. But in solely blaming Ken and failing to take responsibility for any steps that could have been taken to make the Shelley Cook meetings more successful, Lisa shows herself to be as rigid in her views as Ken.

Conclusion

[160] In sum, I find that Ken did not violate the letter or spirit of the Woollcombe order or the parties’ underlying agreement. Accordingly, I dismiss this proceeding.

Costs

[161] The parties should attempt to resolve the issue of costs on their own. If they are unable to do so, Ken may submit his costs submissions of up to five pages, double-spaced, one-inch margins, plus a bill of costs/costs outline and offers to settle. He shall do so within 14 days of release of this endorsement. He need not include copies of the authorities upon which he relies, so long as they are found in the commonly referenced reporting services (i.e. LexisNexis Quicklaw, or WestlawNext) and the relevant paragraph references are included. Lisa may respond in kind within a further 14 days. No reply submission will be accepted unless I request it. If I have not received any submissions within the time frames set out above, I will assume that the parties have resolved the issue and make no costs order.

“Marvin Kurz J.”

Electronic signature of Justice Marvin Kurz

Date: January 24, 2022

[^1]: preview online: Google Books https://www.google.ca/books/edition/_/unCOAgAAQBAJ?hl=en&gbpv=1 [^2]: See for example: “Epstein’s This Week in Family Law”, Westlaw Canada FamilySource (24 February 2016) [^3]: The therapist, Shelley Cook has been incorrectly described as “Dr. Cook” by the parties throughout this litigation. That designation was incorporated in the two Coats J. orders cited in this endorsement. I do not wish to cast any aspersions on Shelley Cook’s skills and bona fides as a therapist. However, my review of the CV tendered on her behalf at the beginning of her evidence showed that her doctorate came from an unaccredited university. She agreed that it would be appropriate to call her “Ms. Cook”. That distinction does not affect my weighing of her evidence. [^4]: Professors Rollie Thompson and Carol Rogerson