Court File and Parties

COURT FILE NO.: FC 237/20-01 DATE: 2023/01/25 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

RE: Monica Cecilia Izquierdo Rubio, Applicant AND: Martin Berendson Leigh, Respondent

BEFORE: TOBIN J.

COUNSEL: Debora Brubacker for the Applicant Self-represented for the Respondent Deborah L. Stewart, Children’s Lawyer’s Agent

HEARD: January 24, 2023

Endorsement

Issue

[1] Should a non-party, a consular official from the Consulate General of Peru in Toronto, be allowed to attend the settlement conference scheduled in this case? That is the issue addressed in this endorsement.

Context

[2] Some background is required to understand the issue raised.

[3] The applicant mother, and respondent father, are the parents of one child born in February 2013.

[4] Following the parties’ separation, when the child was a baby, they engaged in high conflict litigation in Peru where they all lived.

[5] In November 2019, the mother and child arrived in Canada and claimed asylum.

[6] The father brought a Hague Convention application requesting the child be returned to Peru. The father was not successful in having the child returned to Peru under the Hague Convention at trial nor at appeal: see Leigh v. Rubio, 2022 ONCA 582. The Court of Appeal held that after more than two and a half years after the abduction “… it is simply too late to return the child…”

[7] As a result of the Hague Convention decisions, the court is exercising jurisdiction to conduct this case between the parties under the Children’s Law Reform Act, R.S.O. 1990, c. C.12, for a parenting order.

[8] By order of Thomas RSJ dated August 18, 2022, I was directed to act as case management judge.

[9] A settlement conference in this case is scheduled for February 21, 2023, by videoconference.

[10] By letter dated January 6, 2023, the Consulate General of Peru in Toronto sent a letter to the court requesting permission to attend the settlement conference as an observer. This request was said to be made at the behest of the father.

[11] The letter explained that the consulate renders “aid and assistance to [Peruvian nationals] … to follow up and to make sure due process and legal deadlines are duly met.”

[12] In my endorsement of January 9, 2023, I directed counsel and parties to appear before me to make submissions addressing whether consular officials should be able to observe the settlement conference. A representative of the consulate was not invited to attend this case management conference, however, my endorsement of January 9, 2023, was sent to it to explain the process to be followed and why.

Position of The Parties

[13] The father wants the Consul General or his deputy to attend for the reasons outlined in the letter referred to earlier in this endorsement: “to follow up and to make sure due process and legal deadlines are duly met.” It is not the father’s intention that they act on his behalf, nor will they be present to help the parties settle the case. They will not be actively participating in the trial. According to the father their role is simply to observe.

[14] The mother, supported by counsel for the child, does not want Consular Officials attending the settlement conference. She takes this position on the basis that the settlement conference is to be held in private and the matters to be discussed are confidential. Also, she is concerned about them being present because she made a claim for and was granted asylum in Canada on the basis that authorities in Peru would not be able to protect her. Mother’s counsel submits that allowing the Consular Officials of Peru to attend would be a conflict of interest.

[15] Ms. Stewart, on behalf of the child, added that the focus of the settlement conference is resolution or narrowing of the issues. This is not the role the Consular Officials seek for themselves. She is concerned that if the Consular Officials are allowed to attend that the parties would “play to the audience.”

Discussion

i) Confidentiality of Settlement Conferences

[16] The Family Law Rules, O. Reg 114/99 (“FLR”), provide at r.17(15) that it is the parties, unless the court orders otherwise, and the lawyers for each party, who must attend at a settlement conference.

[17] It is the usual practice in this jurisdiction, and I suspect throughout the province, that settlement conferences are conducted in private with only the parties and counsel in attendance, with non-parties attending in limited circumstances to support the parties in resolving matters. The rationale for this is that confidential settlement matters are discussed. The participants must be confident that their discussions remain private. This environment allows for frank discussions including admissions and compromises.

[18] This expectation of privacy is supported by r.17(23) and (24). These rules provide that nothing produced or said at a settlement conference can be disclosed to any other judge except in limited circumstances which do not apply here. The judge who conducts a settlement conference is not to hear the issue.

[19] In the Superior Court of Justice’s internet site, the public is advised that “[e]ach settlement conference is private and confidential. Everything that anybody says and any opinions given cannot be used outside [the] conference.” This statement is not binding on the court however, it is instructive and is indicative of what the court wants the public to expect from a settlement conference.

ii) Open courts principle for hearings

[20] While this is the practice in the court, the open courts principles mandated by s.135(1) of the Courts of Justice Act, R.S.O 1990, c. C. 43, must be considered. This section provides that all court hearings shall be open to the public. This section is subject, in part, to rules of the court.

[21] The FLR do not address who else may or may not attend at a conference. As well, the FLR do not define what constitutes a hearing, only that a trial includes a hearing: r. 2(1). However, the rules distinguish between hearings and conferences at r. 1.2(3)(b) and (c). At r.17(24), reference is made to a judge who conducts a settlement conference and one who hears an issue.

[22] By analogy, in the Rules of Civil Procedure, r.1.03, “hearing” is defined as “the hearing of an application… or a trial” but does not include a pre-trial conference.

[23] I conclude that a settlement conference is not a hearing that is subject to the open courts principle provided for in s.135(1) of the Courts of Justice Act.

iii) The court may exercise its discretion in allowing non-parties to attend a settlement conference

[24] As I have determined that a settlement conference under the FLR is not required to be open to the public, the court has discretion to allow or not allow non-parties from attending.

[25] In this case, the Consular Officials who asked to attend have no role to play in settling the case and will not be participating in the trial. Their stated role is limited to “follow up” and making sure “due process and legal deadlines are duly met.” They are not being asked to support the father in advancing his case or helping him achieve a resolution.

[26] In light of the mother’s successful asylum application, the presence of Consular Officials at the settlement conference may make the parties and in particular the mother, less inclined to be candid in their comments regarding the assessment of the best interests of their child and willingness to discuss concerns, admissions, and possible resolutions. This will impair the court’s ability to help the parties resolve or narrow the outstanding issues.

[27] As Schnall J. observed in Children’s Aid Society of St. Thomas (City) & Elgin (County) v. G.(S.), 2009 ONCJ 186, at para 6: “… if the parties are not able to be fully candid and forthcoming, then we have restricted our ability to conduct an effective settlement conference.”

[28] Taking into account these considerations as well as those set out in r.2 (2)-(5) which require the court to deal with cases justly, I will accede to the mother’s request.

[29] Officials from the Consulate General of Peru at Toronto shall not be allowed to attend the settlement conference.

[30] A copy of this endorsement shall be sent to the Consulate General so that it will be aware of the due process being followed in this case.

“Justice B. Tobin” Justice B. Tobin Released: January 25, 2023