It is rare for a judge to reject a family law settlement reached between parties represented by counsel. Counsel take it as almost a given, that a judge will accept negotiated settlements where both parties are represented.
But the Court of Appeal in Richardson v. Richardson, [2019] O.J. No. 6313 reiterated that judges have the authority to reject settlements:
26 Nevertheless, it is well established that judges have the authority to review settlements and to reject them if they are not in the best interests of the children: Martin v. Martin, 1981 CarswellBC 773 (C.A.), at para. 7; C.T.G. v. R.R.G., 2016 SKQB 387, 86 R.F.L. (7th) 312, at para. 11; and Harper v. Harper (1991), 78 D.L.R. (4th) 548 (Ont. Gen. Div.), at p. 553. This authority must be exercised with caution. Mere disagreement with the terms of a settlement affords no basis for courts to intervene: see e.g., F.J.V. v. W.K.S., 2019 BCCA 67, 18 R.F.L. (8th) 225, at paras. 26, 29. Further, whether a settlement is in the children’s best interests should take into account more than just the settlement terms. It should also consider the general benefits to children that flow from parents resolving their disputes through compromise rather than litigation.
Richardson v. Richardson is noteworthy because the trail judge (conducting a Gordon v. Goertz relocation trial) rejected the settlement (arrived at by counsel the night before) in the middle of a trial and without giving reasons (either at the time or in his judgment after the trial).
The failure to give reasons is seldom successful on appeal if there are grounds to support the decision as there was inherently, in this case. (para 31)
The facts were:
Dad and Mom divorced in Niagara with 2 children. Mom met and married a new partner in Ottawa. She applied to court to move the children to Ottawa with her. An assessor appointed under the children’s law reform act s. 30, determined that the children should stay in Niagara with Dad who should have custody.
Mom was having none of that, so she went to trial. on the eve of trial, the parties were negotiating. The judge said the trial is going ahead. The parties then arrived the next morning with a ‘settlement’. Mom would take children to Ottawa but Dad would have final decision making authority (an absurd plan given the geographical distance).
The judge rejected it. Carried on the trial. Determined that Mom was unreasonable and lacked credibility (para 52). The daughter only agreed to move to Ottawa because she thought it would stop Mom from causing conflict. (para 19)
The Court of Appeal agreed.
Take-away: custody-settlements are always subject to judicial consideration of best-interests
