BACKGROUND:
This case involved an appeal from a trial judge’s decision varying a previous custody and access order for two children. The parents separated in 2012 and divorced in 2015. In 2016, they entered into a consent order which recommended that the children remain in the Niagara region and that the parents share joint custody.
The mother later moved to Ottawa for a job opportunity. She brought a motion to change the order, arguing that the children should live primarily with her in Ottawa. The father opposed this and sought changes to the parenting schedule.
During the trial, the parties negotiated Minutes of Settlement. The proposed settlement provided that the children would move to Ottawa to live primarily with the mother, while the father would retain final decision-making authority. However, the trial judge refused to approve it, stating that he was “not prepared to sign off on it” and that he “just [had] to hear all the evidence.” He gave no reasons.
The trial continued. After hearing the evidence, the trial judge ordered that the children remain primarily with the father in Niagara and gave him final decision-making responsibility. The mother appealed.
ISSUES:
The primary issue in this case was should a judge be permitted to reject a parenting settlement? If so, must reasons be provided?
ANALYSIS:
The Court of Appeal confirmed that judges have authority to review and reject parenting settlements where they are not satisfied that the settlement is in the best interests of the children. In family law, the children’s best interests remain central, even where both parents agree.
However, this authority must be exercised carefully. Settlements are strongly encouraged because they reduce conflict, cost and delay. This is especially important in parenting cases, where ongoing conflict can directly affect children.
The majority held that the trial judge erred by failing to provide reasons for rejecting the settlement. Without reasons, the parties had no way of knowing the judge’s concerns or whether they could have been addressed through clarification or revised terms. The court stated that if a judge rejects a settlement, reasons should generally be provided. If the judge decides not to take further steps to facilitate settlement, that should also be explained.
Despite this error, the majority found that the final parenting decision should not be set aside. The settlement was rejected in the middle of a short trial, where reasons may need to be brief so the judge does not appear to have prejudged the case. More importantly, the trial judge’s later findings supported the conclusion that remaining in Niagara was in the children’s best interests.
The court rejected the mother’s argument that there was a reasonable apprehension of bias. Although the refusal to accept the settlement without reasons was flawed, it did not show that the trial judge had prejudged the matter or could not decide fairly. The court noted that neither party objected, asked for reasons, requested an adjournment or asked the judge to recuse himself. On the merits, the majority found no basis to interfere.
The trial judge accepted the father’s evidence in important respects and found that the children were settled in Niagara and that uprooting them would not be in their best interests. These findings were entitled to deference.
HOLDING:
The Court of Appeal varied the costs order. The trial judge had awarded the father $40,000 in costs on an elevated scale. The Court of Appeal found no basis to punish the mother for seeking a variation of the parenting order. Her conduct was not worthy of sanction, so the costs award was reduced to $30,000.
Justice Nordheimer dissented. In his view, rejecting the settlement without reasons undermined the fairness of the proceeding. He would have allowed the appeal and approved the Minutes of Settlement.
CONCLUSION:
The appeal was dismissed, except with respect to costs. While the trial judge erred by rejecting the proposed parenting settlement without reasons, that error did not justify overturning the final parenting decision. The children’s primary residence remained with the father in Niagara, and the father retained final decision-making responsibility.
This case confirms that courts are not required to automatically approve parenting settlements, even where both parents agree. The best interests of the children remain the court’s primary concern. However, where a judge refuses to approve a settlement, reasons should be given so the parties understand the court’s concerns.
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Categories: Divorce, children’s best interests, custody and access, settlement agreements, relocation