When two parents reach an agreement over the future of their children mid-trial, the judge needs a very good reason to reject it.

In the recent case of Richardson v. Richardson, the Court of Appeal for Ontario tackled a trial judge’s refusal to approve a proposed settlement – without providing reasons for the rejection – before reaching his own decision at the end of the trial. 

While a majority of the three-judge appeal panel upheld the trial judge’s decision, the result also generated a rare, no-holds-barred dissent from Appeal Court Justice Ian Nordheimer, who questioned the message it sends about the sanctity of settlements and the fairness of the entire process.

Case Background

According to the appeal court ruling, the parties, who separated in 2012 after nine years of marriage, have a 14-year-old daughter and an eight-year-old son.

Following their split, the parents each entered new relationships and agreed to joint custody of their children, who divided their time between residences in the Niagara Region.

However, in mid-2017, the mother brought a motion to change the arrangement after selling her Niagara home and moving to the Ottawa area for her new job. She wished to have the children reside primarily with her in the nation’s capital, but the father objected, and the matter ended up proceeding to trial in April 2019.

The Trial

One day into the scheduled four-day trial, the parties were granted an adjournment with the possibility of a negotiated settlement on the horizon.

The talks bore fruit, and the next day the parties presented a proposed settlement that would have seen the children move to Ottawa to live with their mother, but given the father final decision-making authority concerning them.

However, the trial judge refused to approve the settlement, adding that he “can’t really say why. I just want to hear all the evidence.”

Once the remaining witnesses had been heard, the trial judge delivered a verdict expressing concern about the mother’s credibility and motivations. He denied the mother’s requested changes, finding a move to Ottawa would not be in the best interests of the children.

Still, the trial judge found a change to the access schedule was in order, and largely accepted the father’s draft proposal, with the children remaining in the Niagara region and residing primarily with him.

Appeal Court Decision

The appeal revolved around the trial judge’s rejection of the proposed settlement, which the mother argued went against the best interests of the children, violated the principles of fundamental justice, and demonstrated bias.

But Justices Paul Rouleau and Grant Huscroft in the majority denied the appeal:

“We conclude that the trial judge had the authority to reject the proposed settlement if he found that it was not in the best interests of the children,” they wrote. “Although he erred in failing to provide reasons for his decision to reject the proposed settlement, there is no basis for this court to interfere with the decision the trial judge reached following trial. The findings he made confirm that the custody and access order he made was in the best interests of the children.”

The majority decision acknowledged the difficult position the judge was placed in by the “exceptional” circumstances of this case, suggesting judges who find themselves in similar situations must provide reasons that are “carefully crafted, and could be very brief.”

“This is to avoid the appearance that the judge prejudged the case, which would preclude the judge from continuing to hear the case. Depending on the judge’s concerns, the reasons may do little more than advise the parties that, at that stage of the proceeding, and without hearing the balance of the trial, he or she is not prepared to find that the settlement is in the best interests of the children. More complete reasons could then be provided at the end of the trial,” they added.

The Dissent

According to Justice Nordheimer’s stinging dissent, the trial judge’s rejection of the settlement “so tainted the conduct of the proceeding that his disposition cannot be allowed to stand.”

“To do otherwise fundamentally undermines the need for court proceedings not only to be fairly conducted but, as importantly, be seen to have been fairly conducted,” he added.

Dismissing the proposal without reasons not only undermined “the whole settlement process and its importance to the overall functioning of the litigation process,” but it also “irretrievably compromised” his position as trial judge “as a result of his knowledge of the terms of settlement to which the parties had agreed,” wrote Nordheimer, who would have given granted the appeal and given effect to the rejected minutes of settlement.

Justice Nordheimer really came out swinging in this very strong dissent. And, with respect, I must say that I find his approach quite compelling and preferable to that of the majority.

When the two people who know their children best work out a settlement, a judge needs to have compelling reasons for rejecting it.

In cases like this, a judge who explains why the proposal doesn’t work and recuses themselves from hearing the rest of the trial allows the parties a chance to present a modified settlement addressing the concerns raised, or to recommence the trial with a new judge.