Court File and Parties

COURT FILE NO.: FC151/19 DATE: July 14, 2023 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

RE: Christopher James Fishbach, Applicant AND: Rachel Erin Fishbach, Respondent

BEFORE: HASSAN J.

COUNSEL: David R.S. Pentz, for the Applicant Rachel Erin Fishbach, in person

HEARD: July 5, 2023

Endorsement

Motion

[1] The Applicant served this Motion on an urgent basis, returnable on July 5, 2023, seeking:

1. Production of police reports relating to the parties and the children of their marriage, and to the Respondent's home;
2. Setting aside final Minutes of Settlement signed by the parties in May, 2023;
3. Primary residence of the children of the marriage;
4. Restricting the Respondent's parenting time with the children.

[2] The Motion was served on the Respondent on June 27, 2023, five business days before the Motion.

[3] The Respondent served a responding Affidavit on July 4, 2023 and the Applicant served a reply Affidavit on July 5, 2023. On the consent of both parties, I reviewed all Affidavits.

Relevant Facts

[4] The parties were married for six years and separated in November 2018. This proceeding commenced in 2019.

[5] Both parties acknowledged using both alcohol and drugs in excess during their relationship. The Applicant deposes that he has been "clean and sober" since December 2018. The Respondent deposes that the Applicant was the one who struggled with addictions and points to an unsuccessful attendance at a recovery program and a charge for impaired driving.

[6] By Minutes of Settlement dated May 2021, the parties resolved all property issues on a final basis.

[7] A Voice of the Child Report dated in November 2021 confirmed that the children both preferred relatively equal time with their parents.

[8] Pursuant to interim Minutes of Settlement dated June 8, 2022, the parties agreed to shared parenting time during the summer of 2022, on a week-about basis, with a mid-week visit for the other parent.

[9] The parties eventually agreed to an interim weekly shared parenting schedule which they have been following.

[10] The Respondent resides in the former Matrimonial Home and has since separation. The Applicant resides with his parents which he also has since separation.

[11] On May 2, 2023, the parties entered final Minutes of Settlement wherein they agreed to share Decision-Making Responsibility for the children of the marriage, Avery Leyten-Fishbach, born August 7, 2009, and Jack Fishbach, born July 12, 2013, and a continuation of the shared parenting schedule. Both parties were represented by counsel at the time they negotiated the settlement.

[12] On May 18, 2023 the parties' lawyers attended before Sah J. with the signed Minutes of Settlement. They sought a final divorce order with the corollary relief but did not have their Marriage Certificate to complete the order. The matter was adjourned to September 12, 2023 to allow for the order to be finalized.

[13] The parties had been following the terms of the final Minutes of Settlement until an incident on June 16, 2023, outlined below. The Applicant has withheld the children from the Respondent since the incident.

[14] The Applicant deposes that he attended the Respondent's home on June 16, 2023, to see if she was home, as she had left the children at his home when it was to be her weekend with them. The Applicant deposes that he found the Respondent apparently high on drugs, injured and screaming for someone to call 911. She was claiming to be locked out of her home. The police were called and surrounded the home, attempting to resolve the situation. The Applicant left the home and did not observe the outcome of the situation. He attached a statement from the St. Thomas Police which mentions the incident and that an unnamed male was arrested. There is agreement that the unnamed male was Mr. Sean Spehar, the Respondent's former boyfriend.

[15] The Applicant then outlines in his Affidavit, details about Mr. Spehar's criminal activities and possible or alleged criminal activity of other friends and partners of the Respondent. He attaches various media and police reports. He outlines criminal charges against the Respondent and attaches copies of a charge sheet and undertaking. All of the incidents described pre-date the Minutes of Settlement of May 2023, some as far back as 2019.

[16] The Applicant argued that the incident of June 16, 2023 was the "straw that broke the camel's back." He submitted and that the cumulative effect of the incidents described in the Affidavit and the apparent failure of the Respondent to take steps to change her life and the relationships and associations she has, should result in a finding that the children are not safe in her care and that the parenting time agreed to between the parties is no longer in their best interests.

[17] The Respondent deposes that on June 16 her then partner, Sean Spehar, had given her a pill for anxiety, which caused her to sleep deeply. When she awoke the children had been dropped off and Mr. Spehar was in a rage. She instructed the children to leave the home and go to their Father's home. They were in the home for about 10 minutes.

[18] The Respondent did not provide details of how the incident resolved but confirmed that Mr. Spehar was in jail and "will be there for the foreseeable future given the charges he is up against." She indicated in argument that she realized she was in an abusive relationship and had given Mr. Spehar "another chance" in May 2023, but that she had no intentions of reconciling or having anything to do with Mr. Spehar. She deposes that she acted protectively of her children and removed them from the situation, which was resolved hours after they had left the home. She claims that she is not responsible for someone else's abusive behavior and that she took all reasonable steps in response to the violent episode.

[19] The Respondent claims in her Affidavit that the Applicant continues to use illegal drugs. She relies on reports from others and from her observations of him on several occasions. She is critical of the Applicant's parenting, alleging that he exposes them to illicit pictures; that their son was caught stealing from a store; and that he was secretly video taping their home, making her and the child, Avery, unsettled.

[20] The Respondent addresses the other incidents and persons named in the Applicant's Affidavit. She confirms that all criminal changes against her have been withdrawn and she attached a negative criminal record check.

[21] The Respondent seeks to return to the parenting schedule agreed to between the parties and asks for make-up time for the parenting time withheld from her.

[22] Both parents in their Affidavits, express concern for the other's parenting and for the other's possible ongoing drug use. These are complaints that have been raised by both parents throughout the course of this prolonged proceeding.

Discussion

[23] The starting point in my view, in this matter, is the Minutes of Settlement. The agreement reached by the parties on May 2, 2023 is a binding contract, regardless of whether it has been incorporated into a final order or not. See: Olivieri v. Sherman, 2007 ONCA 491.

[24] In this case, the parties had sought a final Order and the order would have been made but for the absence of the Marriage Certificate. Had the final Order been granted, the Applicant's relief would lie in a Motion to Change. The question is, does that change if the final Order has not yet been issued? I find it does not.

[25] Parties seeking to set aside Minutes of Settlement may look to s. 56(4) of the Family Law Act, in applicable circumstances, which provides:

Setting aside domestic contract

(4) A court may, on application, set aside a domestic contract or a provision in it,

(a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;

(b) if a party did not understand the nature or consequences of the domestic contract; or

(c) otherwise in accordance with the law of contract.

[26] In this case the Applicant did not seek to set aside the Minutes of Settlement on any contractual basis. He does not argue that the process in any way put the validity or enforceability of the agreement in dispute. In fact, he conceded that the Minutes of Settlement were a binding contract.

[27] What the Applicant argues is that the pattern of concerning incidents, culminating in the events of June 16, have led the Applicant to conclude that the Respondent is not going to change her pattern of risky behaviors and unhealthy relationships and that had he known this he would not have entered the Minutes. The Applicant argues that in these circumstances the Minutes should be set aside and the matter should proceed to trial.

[28] I do not accept this argument. The Applicant was well aware of the Respondent's associations, her poor choice in relationships and her connections to criminal activity. He provided evidence of all of these concerns in his Affidavit, going back for years. With the full knowledge of these events and of the Respondent's shortcomings, the Applicant, with the assistance of very experienced counsel, entered into Minutes of Settlement agreeing that it was in the best interests of the children for their parents to share Decision-Making Responsibility and Parenting Time. The existing parenting time schedule has apparently been in place for a considerable period of time, even prior to the final Minutes of Settlement.

[29] I was not provided with the Minutes of Settlement or the existing interim order or agreement. However, the Applicant indicated that the Minutes incorporated an existing 2-2-3 parenting schedule.

[30] While the events of June 16, 2023, were troubling, the Respondent took the steps which would be expected of a responsible parent faced with a violent outburst; she removed the children from the home and she contacted the police. The Respondent could not control or possibly even predict Mr. Spehar's conduct, although she had some warning from previous incidents. The children were exposed briefly to the conflict and then spent the remainder of the day in their Father's care.

[31] The Applicant did not provide any evidence of harm coming to the children, from this or any other incident he set out in his Affidavit. He simply suggested that the pattern of "bad decisions" should somehow vitiate the Minutes of Settlement.

[32] It is, of course, well settled law that I have the authority to reject Minutes of Settlement, if I conclude that the terms are not in the best interests of the children who are the subject of the settlement. The Court of Appeal in Richardson v. Richardson, 2019 ONCA 983, discussed the interplay between encouraging settlement of family law disputes on one hand, and rejecting settlements in appropriate circumstances on the other hand. The Court indicated:

25 There is no dispute about the importance of settlements in family law. Settlements are to be promoted and encouraged, as our colleague Nordheimer J.A. explains.

26 Nevertheless, it is well established that judges have the authority to review settlements and to reject them if they are not in the best interests of the children: Martin v. Martin, 1981 CarswellBC 773 (C.A.), at para. 7; C.T.G. v. R.R.G., 2016 SKQB 387, 86 R.F.L. (7th) 312, at para. 11; and Harper v. Harper (1991), 78 D.L.R. (4th) 548 (Ont. Gen. Div.), at p. 553. This authority must be exercised with caution. Mere disagreement with the terms of a settlement affords no basis for courts to intervene: see e.g., F.J.V. v. W.K.S., 2019 BCCA 67, 18 R.F.L. (8th) 225, at paras. 26, 29. Further, whether a settlement is in the children's best interests should take into account more than just the settlement terms. It should also consider the general benefits to children that flow from parents resolving their disputes through compromise rather than litigation.

[33] In this case I have not been asked to approve the Minutes of Settlement or to make a final Order. As indicated, I was not even provided with a copy of the Minutes. I was asked to set them aside and to make an order presumably contrary to the terms of the Minutes, based on the events of June 16, 2023. I do not find that I have the jurisdiction nor the factual basis to do either.

[34] As discussed above, there are limited grounds upon which domestic contracts or settlements can be set aside. The Applicant did not argue for that relief. I was not presented with the Minutes of Settlement and was not asked to endorse them or to determine whether the terms were in the best interests of the children. I would not have had the factual basis to make that finding in any event.

[35] The Applicant also argued that I could make the order sought, based on my parens patriae jurisdiction. There are two occasions when this authority may be exercised:

1. When there is a gap in legislation which does not address the circumstances;
2. "to deal with uncontemplated situations where it appears necessary to do so for the protection of those who fall within its ambit." (E. (Mrs.) v. Eve, [1986] 2 S.C.R.) (Krymko v. Krymko)

[36] The Divorce Act, Family Law Act and Family Law Rules, constitute a comprehensive legislative framework for the circumstances in which the Applicant and Respondent find themselves. As well, the events which unfolded on June 16th, while unfortunate, were certainly not uncontemplated by the Applicant. He pointed to a number of similar incidents in the past, while the parties shared parenting. He referred to a "pattern" of behaviors. He argued that this final incident was the "last straw" in a line of incidents. The incident on June 16 could well have been contemplated. In addition, the Applicant offered no evidence of a present danger to the children. I do not see a need to resort to any inherent parens patriae jurisdiction to address this Motion.

[37] These parties have a binding final settlement. The Applicant can move to set aside the settlement if he believes it fails the requirements of a legally binding contract. If and when the terms of the Minutes of Settlement are incorporated into a final Divorce Order, the Applicant will be free to commence a Motion to Change, should he feel that the events of June 16, 2023, constitute a "material change in circumstances" from the time that the settlement was reached. Until that time the parties are bound by the terms of the Agreement, which they had been following until this incident. I see no reason why the parties should not return to that parenting schedule immediately.

[38] I also do not see the basis, at this time, to order the production of Police reports as was also sought in the Applicant’s Motion. These parties have reached a settlement after years of high-conflict litigation. Their children agree with the terms of the Parenting Schedule. Events will arise relating to both parents which, I would respectfully suggest, can be appropriately addressed between the parents, within their shared Decision-Making Responsibility. Continued litigation may not be in the best interests of these two children.

Order

[39] For the above reasons, Order to issue:

1. the Applicant's Motion dated June 27, 2023, is dismissed.

2. In the event that the parties are not able to resolve the issue of costs of the Motion, written submissions may be forwarded as follows: a. The Respondent shall serve and file submissions within 15 days; b. The Applicant shall serve and file submissions within 15 days thereafter; c. The Respondent shall serve and file any reply submissions within five days;

3. Submissions shall be restricted to three pages, double-spaced and 12-point font, not including Bills of Costs and any relevant Offers to Settle. Reply submissions shall be restricted to two pages.

“Justice Sharon E. Hassan” Justice Sharon E. Hassan Date: July 14, 2023