Court File and Parties
Court File No.: FC-14-FS49421-0001 Date: 2024/07/16 Superior Court of Justice-Ontario
Re: ROBERT LYLE ROWE, Applicant -and- TAMMY BELINDA PAULETTE ROWE, Respondent
Before: Gibson J.
Counsel: Brian R. Kelly, Counsel for the Applicant Matt Milczarczyk, Counsel for the Respondent
Heard: April 29, 2024
Endorsement
Overview
[1] The Applicant Robert Lyle Rowe and the Respondent Tammy Belinda Paulette Rowe were married in 1989 and separated in 2013. The initial divorce proceeding was concluded during a mid-trial settlement conference held before Broad J. on 16 November 2017. This conference resulted in the Final Order of Broad J. made that same day. The conference was held shortly after the four-day trial of the matter commenced before Braid J.
[2] The Respondent issued a Motion to Change the Final Order of Broad J. on 27 September 2021. In this Motion to Change, the Respondent seeks to vary provisions of the Final Order that dealt with child support and spousal support.
[3] The present motion arises from the Applicant’s Notice of Motion dated 8 December 2023. This motion primarily concerns the release of the transcript of the Settlement Conference held before Broad J. on 16 November 2017. The Applicant seeks to use it at the forthcoming trial of the Motion to Change to impeach the Respondent’s credibility on the central issue of her waiver of spousal support. Spousal support is the focus of the Respondent’s Motion to Change. Pursuant to the Order of Breithaupt Smith J. made in her Endorsement dated 12 March 2024, the sole issue to be determined on this motion is whether the transcript of the settlement conference should be released (although it seems that the Applicant has already somehow procured a copy of the transcript), and, if so, what use may be made of it at trial. There is no evidence before me that the Applicant obtained permission of the Court before obtaining the transcript.
Positions of the Parties
[4] The Applicant’s position, as summarized at paragraph 35 in his factum, is that the transcript should be released for use in the Motion to Change as the transcript evidences the Respondent and her previous counsel’s relevant conduct with respect to how the Final Minutes of Settlement were entered into, which grounds she now seeks to rely upon to set aside certain provisions of these Minutes. The Applicant submits that there is both a legitimate need for the release of the transcript and the probative value of it outweighs any harm with respect to Rule 17(23) of the Family Law Rules, as the transcript is from a completed proceeding, not an ongoing proceeding.
[5] The Respondent resists, pointing to codified statutory provisions and consistent jurisprudential authority which protects the confidentiality of settlement conferences. The Respondent also disputes the Applicant’s characterization of the grounds for her Motion to Change.
Law and Analysis
[6] Rule 17(23) of the Family Law Rules provides:
17(23) No brief or evidence prepared for a settlement conference and no statement made at a settlement conference shall be disclosed to any other judge, except in,
(a) An agreement reached at a settlement conference; or
(b) An order.
[7] In Kumaraswamy v. Ganesan, 2024 ONSC 783, at paras. 11-27, Coats J. has recently incisively canvassed this issue:
[11] As set out by Scott J. in Cammarata v. Murphy, 2022 ONSC 2358, there is no automatic right to the release of a transcript from a settlement conference. A settlement conference is “not equivalent to an examination for discovery or questioning,” and the involved justice is generally required to “act as a gatekeeper to ensure that information is not released,” barring extraordinary circumstances: Cammarata, at para. 13.
[12] In Cammarata, Scott J. looked to rule 17(23) of the Family Law Rules as follows:
Confidentiality of settlement conference
17(23) No brief or evidence prepared for a settlement conference and no statement made at a settlement conference shall be disclosed to any other judge, except in,
(a) an agreement reached at a settlement conference; or
(b) an order. O. Reg. 114/99, r. 17 (23).
[13] Justice Scott determined that this rule does not stand for the proposition that statements made at a settlement conference do not need to be protected. At para. 20, Scott J. explains:
[20] While some may argue those statements do not need to be protected through the confidentiality referred to in rule 17 (23), it is my view that unless we are consistent in maintaining the principle of confidentiality, the conferences that have been established as part of our family justice system will become less open and less likely to promote resolution. The specifics sought in this current motion do not warrant release of the transcript.
[14] Scott J. also offered examples of what “extraordinary circumstances” might include, that would warrant the release of a conference transcript. Notably, all of these circumstances involve safety concerns:
[14] By way of example of what those circumstances might include, if a judge learns at a conference that a child is at risk, it may be that information should be released to either a Children’s Aid Society or the police. Another example would be if, at a settlement conference, a threat is directed at someone that could impact that person’s health or safety, it may be that a judge would direct the information to be released. There are other examples that could be made. All of them simply reflect that in the interests of justice and especially when the safety of a person may be impacted, there will be times that the wall of silence needs to be collapsed.
[15] Scott J.’s analysis also accords with earlier judicial treatment of the confidentiality of settlement conferences, and interpretation of rule 17(23).
[16] For example, Daley J. addressed this issue in the earlier case of Benet v. Benet. He helpfully laid out previous judicial consideration of rule 17(23) and confidentiality at paras. 7-8:
[7] In Children’s Aid Society of Niagara Region v. N. (R.), [2004] O.J. No. 1526, J.W. Quinn J. while noting that there was nothing within Rule 17 that made the case conference immune to a request for the provision of a transcript of the proceeding, 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 transcript and (b) the probative value of the transcript outweighed its possible harm.
[8] The scope of Rule 17 (23) was further considered by J.W. Scott J. in Bordynuik v. Bordynuik (2008) 39219 (ON S.C.). The court noted that it is common for the parties and the presiding judge to enter into settlement discussions at a case conference, during which judicial opinions or suggestions may be offered. It was noted that to open up what has been discussed at a later time would inhibit and negatively impact on the settlement discussions.
[17] Ultimately, Daley J. concluded that:
[9] While Rule 17 does not expressly prohibit the use of the transcript of a conference, in my view, the spirit of Rule 17 (23) is to ensure that the conferences are conducted in a frank and open atmosphere for the purpose of achieving settlement of all or some of the issues in dispute. 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. Ready disclosure of such transcripts would have a chilling effect on the settlement discussions. [Emphasis added]
[18] Other current documents corroborate this understanding of the importance of keeping recordings or transcripts of settlement conferences confidential.
[19] For example, the Consolidated Provincial Practice Direction for Family Proceedings at the Superior Court of Justice, current to February 1, 2024, makes the release of transcripts presumptively unavailable for conferences:
E. Accessing Court Transcripts
A request for an official transcript of a court proceeding may be made by accessing the information and following the procedure set forth on the Ministry of Attorney General website for Court Transcripts:
https://www.attorneygeneral.jus.gov.on.ca/english/courts/court_transcripts.php
If the authorized court transcriptionist is unable to access the recording to make a transcript, you may make a motion to the judge to ask that access be granted.
Unless a judge of the Superior Court of Justice orders otherwise, no transcripts are available to anyone – including the parties – for case, settlement, and trial management conferences.
When the public is excluded from a court proceeding (known as in camera proceedings), the public may not have access to records relating to that portion of the proceedings. This includes the portion of the transcript where the public was excluded, the Information or any order that may have resulted.
Under Section 87(4) of the Child, Youth and Family Services Act, 2017 (CYFSA), child protection hearings and appeals of child protection decisions are closed to the public unless ordered by the court. Access to transcripts of CYFSA proceedings may only be given to a party to the hearing or a party’s lawyer. [Emphasis added]
[20] Further, the same Consolidated Practice Direction makes the release of digital court recordings presumptively unavailable:
F. Release of Digital Court Recordings
This section outlines the policy on the release of digital court recordings. Members of the public, counsel, litigants, or the media may obtain copies of digital family court recordings (hereinafter referred to as “digital recordings”) made from Digital Recording Devices (DRDs) of matters heard in open court, in accordance with the requirements of this section. The copies of digital court recordings will include annotations.
All digital recordings are subject to the prohibition set out in s. 136 of the Courts of Justice Act, which prohibits the broadcast, reproduction and dissemination of audio recordings. Any person who contravenes s. 136 is guilty of an offence and subject to a penalty, in accordance with s. 136(4) of the Courts of Justice Act.
1. Definitions
For the purposes of this section, “judge” means all judges and associate judges of the Superior Court of Justice.
2. Restrictions on Access to Digital Recordings from DRDs
All copies or access to digital recordings are subject to any express order the presiding judge may make. The presiding judge may expand or restrict access to the digital recordings in any particular proceeding before him or her.
Unless a judge of the Superior Court of Justice orders otherwise, no digital recordings are available to anyone in the following proceedings:
a. in camera proceedings or any portion of a proceeding that is heard in camera, (meaning where the media and the public are excluded);
b. private hearings (e.g. s. 87 of the Child, Youth and Family Services Act);
c. proceedings subject to a statutory, common law or court ordered restriction on the provision of transcripts or digital recordings of the proceeding; and,
d. case, settlement, and trial management conferences; and,
e. motions. [Emphasis added]
[21] Similarly, the Court Transcript Standards and Procedures Manual, current to January 30, 2024, includes the following instructions on Rule 17:
Rule 17 of the Family Law Rules provides for three types of conferences: case conferences, settlement conferences and trial management conferences. These conferences may be recorded at the request of the presiding judicial official. These recordings are for the judge’s use only. Transcripts of these recordings cannot be provided to any party without a court order or the consent of the presiding judicial official.
[22] This was considered in Strutzenberger v. Strutzenberger, 2023 ONSC 1649, where a party to the proceeding had obtained the transcripts from the case conference. In ordering the party to “immediately destroy/delete any and all copies of the transcript in his possession,” Newton J. provided the above excerpt from the Court Transcript Standards and Procedures Manual.
[9] No court order was given for the release of the transcripts, and I did not consent to the release of these transcripts. Again, no such order or consent would have been granted in the circumstances of this conference.
[23] The expectation of privacy is further reinforced in the Settlement Conference Instructions page of the Superior Court of Justice. It reads as follows:
Each settlement conference is private and confidential. Everything that anybody says and any opinions given cannot be used outside this conference. Only a written agreement or orders that are made at your conference can be referred to later in your court case.
The judge may record the conference for their use. You can get a copy of this recording only with a judge’s consent or a court order. This is only given in rare situations.
[24] I agree with Scott J. that only in “extraordinary circumstances” should transcripts/recordings from settlement conference be released. Participants must be assured of privacy and confidentiality in order for meaningful settlement discussions to occur.
[25] The Respondent has not raised any “extraordinary circumstances.” In this case, the language barriers the Respondent raised do not amount to extraordinary circumstances. The proceeding is over. All matters have been finally resolved. The subject of the Respondent’s motion scheduled for February 29, 2024 is unknown and therefore there is no basis upon which when I can conclude that the transcripts are somehow necessary for this motion or will be of assistance on this motion. I do not know the particulars of any “gaps in understanding” the Respondent is hoping to bridge by having the transcripts. There is no context provided as to how future reference to these transcripts would be required in the interest of justice. The Respondent has the endorsements from these Conferences and the order arising from the attendance before Mills J. There is no threat to health or safety. Given all of the above, and the desire to create an atmosphere of frank and open discussions, the interests of justice do not require the transcripts to be released in this case.
[26] There are important interests to protect in not permitting the release of transcripts from Settlement Conferences: promoting settlement discussions at settlement conferences in family cases, and upholding the privacy and confidentiality expected in these Conferences.
[27] In the result, the Respondent’s motion is dismissed.
[8] I agree with and adopt the reasoning and analysis of Coats J. in Kumaraswamy.
[9] I agree with the position advanced by the Respondent on this motion. The jurisprudential authorities on this issue uniformly protect the codified confidentiality of the settlement process and its without prejudice nature, affirming that extraordinary circumstances are the only avenue where the confidentiality of the settlement conference could be pierced. Such extraordinary circumstances could comprise a child at risk, or a threat being directed at someone which could impact the health or safety of a person. No such extraordinary circumstances engaging safety concerns have been demonstrated by the Applicant here.
[10] The release and admission in evidence at trial of a transcript from the settlement conference would be injurious to the principled basis for Rule 17(23), and could have a chilling effect on the utility of such conferences in advancing their vital primary function of promoting settlement of family law disputes. The interests of maintaining and protecting the privacy, confidentiality and without prejudice nature of settlement conferences outweighs any potential probative value that would arise from its use at trial in this matter.
[11] I consider that the interests of justice in this case require that the Applicant’s motion be dismissed.
Order
[12] The Court Orders that:
- The Applicant’s motion is dismissed.
- The transcript of the settlement conference held before Broad J. on 16 November 2017 is not admissible and shall not be used at the trial of the Respondent’s Motion to Change in this matter.
- The Applicant, and counsel for the Applicant, shall immediately destroy and/or delete any copies of the transcript of the Settlement Conference held on 16 November 2017 in their possession.
Costs
[13] The parties are encouraged to agree upon appropriate costs. If the parties are not able to agree on costs, they may make brief written submissions to me (maximum three pages double-spaced, plus a bill of costs) by email to my judicial assistant at Mona.Goodwin@ontario.ca, as well as to Kitchener.SCJJA@ontario.ca. The Respondent may have 14 days from the release of this decision to provide her submissions, with a copy to the Applicant; the Applicant a further 14 days to respond; and the Respondent a further 7 days for a reply, if any. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves. If I have not received a response or reply submissions within the specified timeframes after the Respondent’s initial submissions, I will consider that the parties do not wish to make any further submissions, and will decide on the basis of the material that I have received.
M. Gibson, J. Date: July 16, 2024