Superior Court of Justice – Ontario

Court File No.: FC-21-1263
Motion Heard: April 3, 2025 (via videoconference)

Re: Zahid Muhammad Abid, Applicant
And: Maria Mahmud, Respondent

Before: Associate Justice Kamal

Counsel:

• Jeremy Dolgin, Counsel for the Applicant
• Maria Mahmud, self-represented
• Micheal Chun, Counsel for the Office of the Children’s Lawyer, for the child Daniel

Reasons for Decision

Request for Urgent Motion

[1] The Respondent brings an urgent motion for the following relief:

a. An order to the applicant, Zahid Muhammad Abid, to abide by the court endorsement issued on February 20, 2025 (“Recommendation were made”) for the parenting time with respondent and child, Minha Abid; and

b. An order to the applicant to abide by the domestic contract for parenting time followed by each party since September 16, 2022 until December 2024.

[2] The child involved in this case is Minha Abid, born February 27, 2013.

[3] This matter is on the September 2025 Trial List.

[4] The relief sought in this motion seeks to enforce “recommendations” made at a case conference. I will address concerns relating to the relief sought and the materials filed by both parties later in this endorsement.

[5] The mother’s position is that her relationship with the child is being harmed because she is not seeing the child regularly.

[6] The father’s position is that the child has been refusing to see the mother since January of 2025. Furthermore, the father’s position is that this is not an urgent motion and is an abuse of process and is barred by res judicata.

[7] The OCL has appointed a lawyer for Minha. Mr. Chun was assigned for the OCL approximately two weeks ago. The OCL takes no position on the issue of urgency. The views and preferences of the child are not known independently.

[8] The Respondent has also sought the Applicant’s counsel’s availability for a motion to proceed in the usual course (not on an urgent basis). They have agreed to dates in July of 2025. By then, the hope is that the OCL’s position will be known by that date.

[9] The evidence before me outlines the following key events:

a. On January 28, 2025, the respondent sought leave to bring an emergency motion based on the fact that Minha has been refusing to go to the respondent's house as was agreed between the parents in an interim parenting agreement.

b. The Honourable Associate Justice Perron determined that an urgent motion was not warranted. Part of the reason why Justice Perron declined the request to schedule an urgent motion was because the parties agreed to an order appointing the OCL.

c. Associate Justice Perron ordered an urgent case conference, which took place on February 20, 2025.

d. The agreed-upon evidence is that at the case conference, the parties discussed possible ways to support Minha in repairing her relationship with the respondent.

e. Justice Audet made “recommendations”, but these were not included in her Honour’s endorsement.

f. Following the case conference, the parties tried to arrange meetings between Minha and the Respondent. The parties were able to arrange the first visit on March 15, 2025, which went quite well.

g. Following that meeting, Minha expressed feeling more comfortable with her mother and open to future meetings. However, she has not yet indicated when she wishes to see the Respondent again. The father says that he sincerely hopes that more meetings can be scheduled and is willing to facilitate that process consistent with Minha's wishes.

[10] During today’s attendance, I offered the parties an opportunity to discuss future meetings between the Respondent mother and Minha. I was advised that the parties agreed that the Respondent mother and Minha will exercise parenting time this upcoming Tuesday at the movies. This agreement was made while this matter was stood down today. The parties need time to finalize details of future parenting time, in accordance with Minha’s views and preferences.

[11] This court attendance was only to determine whether this motion should be heard on an urgent basis.

[12] Rosen v. Rosen, [2005] O.J. No. 62 is the leading case with respect to determining urgency.

[13] The first step should be an inquiry as to when case conference dates are available to deal with the matter. In this case, the parties attended at an urgent case conference, which assisted them in resolving the issues.

[14] The next step, prior to bringing a motion, should be to engage in settlement discussions to try to obtain a resolution of the pressing matters until the case conference date. The focus is on achieving a short-term agreement to get the parties through to the case conference date without a motion, rather than necessarily achieving a final resolution on all issues in the case. The parties have engaged in settlement discussions, and in my view, have made progress towards a short-term agreement.

[15] Motions are discouraged as the first step in family law litigation. The philosophy of the Family Law Rules is to encourage parties to resolve their disputes as early as possible and without the need for protracted litigation.

[16] In J.A.D. v. J.C., 2024 ONCJ 108, Justice Vickers said:

Where a parent is so entrenched in her position that she will not consider any compromise, there is not much hope for resolution at the case conference stage. If no consensus will be achieved at a case conference, the matter is further delayed. The impact of the net delay to the determination of interim parenting time, which may be months in this case, could have a lasting detrimental and irreversible impact on the relationship between the child and the parent.

The present case is not a situation where the father will not compromise or that there is no chance of resolution.

[17] In Iliuta v. Li, 2021 ONSC 7308, the Court states that “In some situations, a complete denial of access, or the imposition of very strict conditions akin to a denial of access, could certainly amount to a ‘threat of harm’.” The Court goes on to say, “Where … a parent is prepared to agree to reasonable parenting time, these arrangements should be fully explored before resorting to an urgent motion.” The present case is very different from these circumstances described in Iliuta.

[18] The Court stated in Rosen v. Rosen, [2005] O.J. No. 62:

There is a deliberate attempt to try to avoid the damage that flows from the nasty ‘affidavit war’ that accompanies the filing of a motion. This approach has been tremendously successful. The vast majority of cases are resolved at a case conference without the need for a formal motion.

[19] In Kaur v. Singh, 2023 ONSC 2116, McGee J. determined that the applicant’s motion for the parties’ child to be returned to his status quo domicile was not an urgent motion because the respondent’s breach of the agreement did not create a situation of urgency.

[20] In my view, this matter is not urgent for the following reasons:

a. The parties had a case conference, and it was productive;
b. The parties have engaged in productive resolution-focused discussions and have made progress;
c. The mother has recently had parenting time with the child on March 15, 2025;
d. Everyone agrees that visit went well, and they will arrange more visits;
e. In fact, the father agreed that Minha expressed feeling more comfortable with her mother and open to future meetings. However, she has not yet indicated when she wishes to see Maria again. The father even says that he sincerely hopes that more meetings can be scheduled, and he is willing to facilitate that process consistent with Minha's wishes;
f. The father is prepared to agree to reasonable parenting time on an ongoing basis;
g. There is another date scheduled for the Respondent mother’s parenting time with the child this upcoming Tuesday;
h. This is a case that should clearly avoid the damage that flows from the nasty ‘affidavit war’ that accompanies the filing of a motion;
i. There is a motion scheduled for July 2025;
j. The OCL’s views are not known but will hopefully be known by the motion in July 2025;
k. The parties just had a motion in this matter. Justice MacEachern issued a lengthy temporary order on December 10, 2024 addressing several aspects of this matter following motions brought by both parties. In light of the fact that the parties just had a motion in this matter and the OCL is about to become involved, I do not think it is appropriate to proceed with another motion; and
l. This is not a case of a complete denial of parenting time or even an unreasonable position with respect to parenting time.

[21] Accordingly, this motion shall not proceed as an urgent motion.

Res Judicata and Abuse of Process in the Context of Family Urgent Motions

[22] "Res judicata" is a legal doctrine that prevents parties from relitigating claims or issues that have already been previously decided. It ensures finality of judgments and conserves judicial resources. In family law, it helps parties move forward.

[23] "Abuse of process" refers to the misuse of court procedures for an improper purpose, such as to harass, delay proceedings, or gain an unfair advantage, often extending coercive and controlling behaviors into the legal process.

[24] The doctrine of abuse of process arises out of the court’s inherent jurisdiction to prevent misuse of the court’s procedure in a way that would bring the administration of justice into disrepute, see Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 35; Wright v. Urbanek, 2019 ONCA 823.

[25] The Applicant argues that the Respondent’s request for urgency is barred by the doctrine of res judicata and abuse of process.

[26] I do not agree. In this case, a request for an urgent motion was brought. The Court ordered that the matter be sent to an urgent case conference.

[27] An “urgent case conference” is not a separate entity in the Family Law Rules nor is it defined as a term. The purposes of an “urgent case conference” are the same as the purposes as outlined in the Family Law Rules for case conference. The reason the Court will often order a case or an issue to go to an urgent case conference is the hope that the parties can resolve the issues. As mentioned, motions are discouraged as the first step in family law litigation because the Family Law Rules are designed to encourage parties to resolve their disputes.

[28] However, if the parties are not successful in reaching an agreement, the party does not lose their right to have their motion heard – if it is truly urgent or if circumstances become urgent.

[29] There is no evidence before me that the Respondent mother is acting in a manner that is an abuse of process. Furthermore, the fact that the parties attended at an urgent case conference does not create a situation where the request for an urgent motion is barred by res judicata, when the circumstances are appropriate.

[30] In this case, I found the motion not to be urgent. But I did not come to this conclusion because of the doctrine of res judicata or abuse of process.

Confidentiality of Family Law Conferences

[31] The relief requested in the notice of motion is problematic. It seeks to enforce “recommendations” made at a case conference. The opinion of judges at conferences, particularly in the context of settlement discussions, are not intended to be put into an evidentiary record.

[32] As a result of the materials filed and the relief requested, there is a need to address the issue of including settlement discussions and opinions given by judges in the context of family law conferences in motion materials.

[33] The evidence before me from both parties includes statements made in settlement discussions between the parties as well as settlement discussions that occurred during the case conference. It also includes opinions and recommendations of the case conference judge.

[34] 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.

[35] Case conferences provide a safe environment where parties and counsel can openly discuss the issues. If confidentiality is respected, participants are more likely to share honest and candid information, which helps in resolving the matter effectively. Similarly, if confidentiality is compromised, it will impact the entire case moving forward.

[36] Confidential discussions at a case conference allow parties to negotiate and explore potential solutions without the fear that anything they say will be used against them later in court. This increases the likelihood of reaching a settlement or agreement that benefits all parties involved, especially children. The sanctity of the confidential nature of these discussions must be protected.

[37] Rule 17(22) stipulates that 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.

[38] Rule 17(22.1) further states that 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.

[39] Rules 17(22) and (22.1) contemplate the likelihood of settlement discussions occurring at a case conference. This is supported by Rule 17(4)(a), see: Dobraca v. Serter, 2024 ONSC 1936 at paragraph 14.

[40] Rule 17(23) speaks to the confidentiality of a settlement conference. Specifically, 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 an agreement reached at a settlement conference or an order.

[41] While no parallel rule exists for case conferences, in my view, this ought to extend to case conferences, particularly with respect to opinions given by judges at a case conference and settlement discussions. Just as no statement made at a settlement conference can be disclosed to any other judge, that principle extends to a case conference, given that the Rules provide that the purposes of a case conference is to explore the chances of settling the case and explore ways to resolve the issues that are in dispute.

[42] 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.

[43] Sah J. recently addressed a party’s request for transcript in a case conference in Dobraca v. Serter, 2024 ONSC 1936. As Sah J. mentioned, if a judge does make recommendations at a case conference, the parties are not bound by them.

[44] 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.

[45] 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.

[46] All of these cases demonstrate that there is 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.

[47] In my view, counsel and parties must be dissuaded from producing contents of conference discussions in the evidentiary record. Some Courts have referred to such behaviour as egregious: Long v. Mitchell-Hourie, 2021 ONCJ 642 at paragraph 22.

[48] I note that I would decide the same outcome of this motion whether I considered the evidence of the case conference discussions or not.

[49] It is not appropriate to grant costs for today’s attendance because the materials were problematic from both parties and the attendance was productive.

“Original signed by”

Associate Justice Kamal

Date: April 4, 2025