Court File and Parties

COURT FILE NO.: FC239/23 DATE: April 4, 2024 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

RE: Kasim Dobraca, Applicant AND: Arifa Serter, Respondent

BEFORE: SAH J.

COUNSEL: Applicant, in person Lisa M. Walters, for the Respondent

HEARD: In Chambers

Endorsement

Overview

[1] This motion was first returnable in February before Hebner J.

[2] The applicant moves for an order granting permission to obtain a transcript of the case conference held before me on September 11, 2023.

[3] Hebner J. referred the matter to me, to be reviewed in chambers, and permitted time for the respondent to file an affidavit on the issue.

Position of the Parties

[4] The applicant requests the transcript to obtain clarity on my directions to the respondent, a lawyer, about her professional corporation.

[5] The applicant claims that I made specific oral instructions to the respondent at the case conference and there is a dispute with regard to what was said. He claims that the transcript will serve as a reference.

[6] The respondent asserts that she complied with the disclosure order made at the case conference. She claims to have no information as to the alleged oral instructions made which the applicant alleges she has not complied with.

[7] Though she states she has no issue with the transcript being released if the court finds it appropriate to do so, she has concerns that the applicant will rely on discussions had at the conference as evidence in this case.

Case Conference Endorsement

[8] My endorsement of September 11, 2023 provides as follows:

Case conference held.

On consent, under the FLR, OTG:

1. On or before October 11, 2023 the respondent shall produce to the applicant her; a) fully completed and sworn Form 13.1 Financial Statement, attaching her 2022 ITR and NOA and b) Arifa Serter Professional Corporation financial statement for 2022.

2. On or before October 31, 2023 the applicant shall produce to the respondent, through counsel, his: a) sworn Form 13.1 Financial Statement; b) ITRs for 2022, 2021, 2020; c) NOAs for 2021a nd [sic] 2020; d) Proof of current income; e) Any records of employment issues [sic] to the applicant within the last year; and f) Copies of any applications made to EI and OW for benefits.

3. The applicant shall produce to the respondent, through counsel, his 2022 NOA within seven days of receipt of same.

4. Matter adjourned to December 19, 2023, 9:30AM, TBST.

Legal Principles, Other Considerations & Discussion

[9] Several cases have considered this issue in the context of request for a settlement conference transcript. Some of those cases are referred to below.

[10] I have reviewed the relevant Rules as it relates to case conference, below.

[11] Rule 17(4) of the Family Law Rules, O Reg 114/99, sets out the purposes of a case conference, which include,

(a) exploring the chances of settling the case; (b) identifying the issues that are in dispute and those that are not in dispute; (c) exploring ways to resolve the issues that are in dispute; (d) ensuring disclosure of the relevant evidence, including the disclosure of financial information required to resolve any support or property issue; (d.1) identifying any issues relating to any expert evidence or reports on which the parties intend to rely at trial; (e) noting admissions that may simplify the case; (f) setting the date for the next step in the case; (g) setting a specific timetable for the steps to be taken in the case before it comes to trial; (h) organizing a settlement conference, or holding one if appropriate; (i) giving directions with respect to any intended motion, including the preparation of a specific timetable for the exchange of material for the motion and ordering the filing of summaries of argument, if appropriate; and (j) in the case of a motion to change a final order or agreement under rule 15, determining the most appropriate process for reaching a quick and just conclusion of the motion.

[12] Case conference briefs do not form part of the continuing record unless the court orders otherwise and shall be returned at the end of the conference to the parties who filed them or be destroyed by court staff immediately after the conference. See Rule 17(22).

[13] If the court orders that a case conference brief form part of the continuing record, that portion of the brief that deals with settlement of the case shall be deleted. See Rule 17(22.1).

[14] Rule 17(22) and (22.1), in my view, contemplate the likelihood of settlement discussions occurring at a case conference. This is supported by Rule 17(4)(a).

[15] If case conference briefs are not to form part of the court record, so too, by extension, should there be a consideration on the release of transcripts from the case conference, as discussions likely flow from the briefs filed.

[16] Rule 17(23) speaks to the confidentiality of a settlement conference. No similar rule exists in relation to a case conference.

[17] If no statement made at a settlement conference can be disclosed to any other judge, I take the view that same should extend to a case conference, given that the Rules provide that one of the purposes of a case conference is to explore the chances of settling the case.

[18] Coats J. recently considered a party’s request for the release of a transcript from a settlement conference in Kumaraswamy v. Ganesan, 2024 ONSC 738. In this case, the party sought an order directing the provision of complete transcripts from two settlement conferences for the purpose of ensuring their understanding of what was discussed and agreed upon, and to determine if ongoing discussions and actions were accurate.

[19] The requesting party also noted that the transcripts would be helpful in bridging gaps in understanding, given that English was not their first language and there were challenges in their ability to fully grasp spoken English. It was claimed that access to transcripts were instrumental in overcoming language barriers and were needed to ensure their clear and accurate record of the proceedings.

[20] After reviewing considerable caselaw and various other corroborating documents, Coats J. dismissed the requesting party’s motion.

[21] Coats J. considered several cases which I summarize below:

• Cammarata v. Murphy, 2022 ONSC 2358, wherein, after thorough analysis, J.W. Scott J. dismissed a party’s request for the production of a transcript of a settlement conference, having not been satisfied that the interest of justice required the statements made at the settlement conference be released. In this decision, Scott J. held that there was no automatic right to the release of transcripts from a settlement conference, while acknowledging that transcripts may be released in certain “extraordinary” circumstances which include situations where a child is at risk, or if a threat is made during the conference that could impact a person’s health and safety.
• In Benet v. Benet, Daley J. concluded that, while Rule 17 does not expressly prohibit the use of transcripts of a conference, Rule 17(23), in spirit, ensures that conferences are conducted in a frank and open atmosphere for the purpose of achieving settlement of all or some of the issues in dispute. The court continued to state that full and frank settlement discussions cannot be had if the parties have concerns that the transcript of their discussions may be available for use at trial or on a motion.
• In the Children’s Aid Society of the Niagara Region v. N.(R.), 2004 Carswell Ont. 1638, J.W. Quinn J. held that a party to a family law case was entitled to make a motion for an order for the production of transcripts upon proof of: (a) a legitimate need for the transcripts; and (b) the probative value of the transcript outweighing its possible harm. The court went on to state that a request for the production of transcripts was a matter of the court’s inherent jurisdiction as long as discretion was exercised in a manner consistent with the due administration of justice, as required by s. 146 of the Courts of Justice Act.
• In Strutzenberger v. Strutzenberger, 2023 ONSC 1649, Newton J. ordered a party who had obtained transcripts from a case conference to immediately destroy/delete any and all copies of the transcript in their possession. Newton J. referenced excerpts from the Court Transcripts Standards and Procedures Manual.

[22] In Kumaraswamy v. Ganesan, 2024 ONSC 783, Coats J. referenced relevant portions of the Consolidated Provincial Practice Direction for Family Proceedings at the Superior Court of Justice as it relates to accessing court transcripts and the release of digital court recordings. The Consolidated Practice Direction presumptively makes the release of transcripts unavailable for all conferences, citing that a judge of the Superior Court of Justice may order otherwise. Coats J. also referred to the instructions page on the Superior Court of Justice website as it relates to settlement conferences.

[23] As this case deals with a request for a case conference transcript, I referred to the case conference instructions page, which states:

Each conference is private and confidential. Everything said during the conference and any opinions that are given cannot be used outside the conference. Only a written agreement or orders that are made by the judge can be referred to later in your court case.

[24] The instructions page also states that a judge’s recommendations at a case conference are not binding, meaning that the parties do not have to agree with a judge’s recommendations for settlement.

[25] Given the orders made on consent for the production of her professional corporation’s 2022 financial statement, it is clear that discussions were had with respect to the respondent’s professional corporation.

[26] If I did make recommendations, as the applicant suggests, the respondent is not bound by them.

[27] The applicant has not provided any context to assist in determining how producing the transcript of the case conference would be in the interest of justice. It is not uncommon for parties to have different recollections of events and discussions that occurred at a conference. This alone is not a sufficient reason to order the production of a transcript.

[28] I agree with Scott J. and Coats J. in that transcripts should only be produced and released in extraordinary circumstances. The applicant’s attempt to obtain clarity on my directions to the respondent about her professional corporation does not fall within the extraordinary circumstances referred to by my colleagues, and which I adopt.

[29] There is no evidence that speaks to a threat to health or safety, and the orders made do not directly involve the child.

[30] There is also the risk that the applicant may rely on discussions had at the case conference as evidence in this case. To do so would be inappropriate and inconsistent with the spirit of s. 17 of the Family Law Rules.

[31] Section 146 of the Courts of Justice Act requires the court to exercise discretion in a manner consistent with the due administration of justice. There is, in my view, a presumption of confidentiality associated with conferences, and though extraordinary circumstances may cause a breach of that confidentiality, those circumstances should be limited, to promote the frank and open discussions expected to be had at conferences.

[32] I find that the applicant has not provided proof of any legitimate need for the transcript and no evidence has been presented of any probative value to the production of same.

Disposition

[33] For the reasons set out above, the applicant’s notice of motion dated February 1, 2024 shall be dismissed.

[34] In Hebner J.’s endorsement dated February 7, 2024, she ordered that costs of the motion were left for the trial judge, with the amount being $750.

[35] I take the view that costs of the motion have been dealt with and, accordingly, there shall be no further order as to costs.

“Justice Kiran Sah” The Honourable Justice Kiran Sah Date: April 4, 2024