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Family Law Settlements: When a deal is not a deal because the trial judge rejects it.

3 minute read

The value of settlements is undisputed in family law. Litigants are universally encouraged to come to a resolution and relieve themselves, their children, and the courts of the high cost of litigation. This value is enshrined in the Family Law Rules and has been emphasized countless times by the courts. In Richardson v Richardson, 2019 ONCA 983, the Ontario Court of Appeal was confronted with the dilemma of upholding this value in the context of a trial judge’s rejection of the parties’ proposed settlement without providing reasons.

In the course of the trial, the parties negotiated a settlement which would have permitted the parties’ children to re-locate to Ottawa with the Appellant mother. The trial judge refused to accept the parties’ settlement but did not provide any reasons for doing so. The parties were then required to proceed with the trial. The trial judge then ordered the children to reside with the Respondent father in the Niagara region. Subsequently, the Appellant argued that the trial judge erred in rejecting the settlement and proceeding with the trial.

The majority of the Court of Appeal held that the trial judge had the authority to reject the proposed settlement if the trial judge found that it was not in the best interests of the children. The majority further held that although the trial judge erred in failing to provide reasons, this did not constitute a basis for the court to interfere with the decision. While the trial judge’s decision to continue with the trial without providing reasons undermined the settlement process and the court’s duty to help the parties settle the case, the trial judge’s decision on the merits after a full hearing was found to provide a sound basis for rejecting the proposed settlement.

Importantly, the majority emphasized the conduct of the parties’ counsel, neither of whom had objected to the trial judge’s decision to proceed with the trial. Counsel could have sought an adjournment, asked for reasons for the rejection or otherwise interjected in the course of events, but did not. According to the majority, this was “no small matter”.

Nordheimer J.A., writing in dissent, would have allowed the appeal. In his view, the trial judge’s decision “so tainted the conduct of the proceeding that his disposition cannot be allowed to stand”. Nordheimer J.A. emphasized that encouraging and facilitating parties to settle is an integral facet of promoting the primary objectives of the Family Law Rules, which is to deal with cases justly. Parents know their children best. Where they have agreed to settle, the courts should be loathe to interfere and should give clear, cogent reasons for doing so.

This is a concerning case. There is no doubt that the trial judge’s actions deeply undercut the authority of the Family Law Rules and the principle of urging the parties to settle. If the Ontario Court of Appeal is not going to intervene when trial judges reject settlements without providing reasons, trial lawyers need to understand the heavy onus which they bear to press trial judges to accept settlements, or to provide clear reasons if they do not.

Jordan McKie

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