Court File and Parties

COURT FILE NO.: FS-22-45153-00 DATE: 2024 02 05

SUPERIOR COURT OF JUSTICE – ONTARIO 491 Steeles Avenue East, Milton ON L9T 1Y7

RE: Aruna Rani Kumaraswamy AND: Srinivasan Ganesan

BEFORE: Coats J.

COUNSEL: Sangar Duraiappah, counsel for the Applicant Self-Represented, Respondent

HEARD: January 22, 2024

ENDORSEMENT

Issues:

[1] On January 22, 2024, I heard a motion brought by the Respondent wherein he sought the following relief:

1. Provision of Settlement Conference Transcripts: An order directing the provision of complete transcripts from the Settlement Conferences held on Jan 4, 2023, at 2:15PM and March, 2023, at 2:15 PM, as part of the ongoing family matter in family matter case Kumaraswamy vs Ganesan.
2. Access to Supplementary Conference Documents: If available, an order granting me, the respondent, access to any supplementary documents, notes, or records taken during the Settlement Conferences that may provide additional context or clarification to the discussions and agreements made.
3. Voluntary Assumption of Transcription Costs: Recognition of my voluntary commitment to bear the full costs associated with the transcription of these recordings, demonstrating my dedication to a fair and informed legal process.
4. Distribution of Transcripts for Fairness: An order permitting the distribution of the completed transcripts to all relevant parties, including the applicant and her legal counsel, to ensure transparency and equitable access to information.
5. Legal Right to Case Records: Acknowledgment of my legal right, under Canadian Family Law, to access pertinent records related to my case, including court transcripts, for the purpose of informed participation and contribution to the legal process.
6. Supporting Documentation Reference: For further context and detailed substantiation of the requests herein, please refer to the accompanying Form14B dated December 1, 2023, and the Affidavit prepared for this motion, 'Form 14A-Affidavit-Respondent-1-Jan-2024-Transcript Request for 4-Jan-2023.pdf' and 'Form 14A-Affidavit-Respondent-1-Jan-2024-TranscriptRequest for 15-Mar-2023.pdf'

[2] The January 4, 2023 attendance was before me. The March 15, 2023 attendance was before Mills J.

[3] Initially the Respondent brought two separate motions, one before me and one before Mills J. in regard to the transcripts. I set the motion before me to be argued on January 22, 2024. When the parties attended before Mills J. on January 11, 2024, they agreed that I would make the decision regarding both transcript requests. Justice Mills’ endorsement of January 11, 2024 provides as follows:

[1] Mr. Ganesan seeks to obtain the transcript from the Settlement Conference held before me on March 15, 2023. He is also seeking the release of the transcript from the Case Conference held before Justice Coats on January 4, 2023. Justice Coats will hear a motion on January 22, 2024, respecting the release of her transcript. The parties have agreed to have that decision apply equally to the release of the Settlement Conference transcript.

[2] At this time, Ms. Kumaraswamy takes no position regarding the release of the Settlement Conference transcript, but she may oppose its release as she recalls there was a discussion about the child during the Settlement Conference. She wishes to keep that information confidential. If Justice Coats grants the motion and orders the release of the transcripts, the parties may make submissions as to any restrictions and/or limitations as to the use of those transcripts.

[4] Thereafter, the Respondent did a single Notice regarding both transcripts, returnable before me on January 22, 2024, which was argued that day. My decision was reserved. This endorsement is my decision.

[5] The Applicant took no position on the motion save and except for the concerns reflected in Mills J’s endorsement of January 11, 2024, as above.

Background:

[6] All issues in this family law proceeding have been resolved on a final basis. There are 3 final orders in this proceeding:

1. The Order of Conlan J. dated November 14, 2022, based on consent, that provided that the Applicant have sole decision-making responsibility for the child and that the child primarily reside with the Applicant. A referral was also made on this date to the Office of the Children’s Lawyer.
2. The Order of Mills J. dated March 15, 2023, based on consent, that the Respondent’s parenting time with the child be based on the child’s sole discretion.
3. The Order of Kumaranayake J. dated July 31, 2023, based on Final Minutes of Settlement dated July 31, 2023, which resolved all outstanding issues of child support and s.7 expenses, spousal support, equalization and the matrimonial home.

[7] The Respondent has a motion date booked for February 29, 2024. It is not clear what this motion concerns.

[8] My endorsement of January 4, 2023 provides as follows:

Settlement conference held re: imputing income.

Mr. Misheal has just been appointed to represent the child. No discussion re: parenting time could occur.

Counsel for the Applicant has drafted Minutes dealing with the sale of the home, outstanding disclosure and the appraisal of a property in India. Counsel will send Minutes to the Respondent. He wants time to consider same.

Settlement conference adjourned to March 15, 2023 at 2:15 p.m. Updated briefs to be served and filed. Minutes re: decision making (already signed) and potential minutes above, may be filed by 14b motion.

[9] Mills J.’s endorsement of March 15, 2023 provides as follows:

The parties attended today for a Settlement Conference.

On consent, a Final Order shall issue directing the Respondent’s parenting time with the child shall be at the child’s sole discretion. By Order dated November 14, 2022, the Applicant was granted sole decision-making authority for the child. As all issues respecting the child have now been addressed, the OCL is no longer a necessary party and may be released from the litigation.

Within 45 days from today, the Respondent shall provide disclosure of any outstanding documents from the Request for Information dated October 2022. In particular, he shall disclose the documents related to his TD Employee Ownership Plan and amend his Financial Statement to include this account.

The Applicant is granted leave for a motion to determine the quantum of child support to be paid by the Respondent. The Trial Management Conference is scheduled for July 31, 2023, at 2:15 p.m. The parties are to file a jointly completed Trial Scheduling Endorsement Form.

Basis of the Respondent’s Request:

[10] The Respondent’s reasons for requesting these transcripts are summarized in “II. Issues,” at paragraphs 1 and 2 of his Factum as follows:

1. There are some contradictions in the statements and actions of the applicant and the law firm. Therefore, I wish to review the transcripts of the Settlement Conferences to ensure that my understanding of what was discussed and agreed upon, on-going discussions and actions are accurate.
2. This approach of obtaining transcripts has been particularly helpful in bridging gaps in understanding, especially as a non-native English speaker. In emotionally charged situations, my ability to fully grasp spoken English can be challenged. Access to these transcripts has been instrumental in overcoming these language barriers. Furthermore, I seek these transcripts for future reference within the context of the family matter, ensuring that I have a clear and accurate record of the proceedings to refer to as needed.

The Law, Rules and Relevant Documents:

[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 ONSC 39219. 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.

Analysis:

[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.

Conclusion:

[27] In the result, the Respondent’s motion is dismissed.

Costs:

[28] I encourage the parties to resolve the issue of costs. If they are unable to do so, each party claiming costs shall serve and file brief written submissions as to costs, limited to two pages (double spaced with regular font and margins), with a bill of costs attached, to be served and filed within 30 days of today.

[29] The responding party shall serve and file brief written responding submissions as to costs, limited to two pages (double spaced with regular font and margins), to be served and filed within 60 days of today.

[30] If both parties claim costs, each party shall be entitled to two pages of submissions, as just set out in paragraph 28 of their claim and two pages set out in paragraph 29 to respond to the other party’s claim, within the same timelines above. There shall be no right of reply.

Coats J. Released: February 5, 2024