2011 NBCA 101, 2011 NBCA 101

Editor’s Note: Corrigendum released on December 12, 2011. Original judgment has been corrected with text of corrigendum appended. COURT OF APPEAL OF NEW BRUNSWICK 21-11-CA EDDY JOSEPH GLASPY APPELLANT EDDY JOSEPH GLASPY APPELANT - and - - et - LYNN HELEN GLASPY RESPONDENT LYNN HELEN GLASPY INTIMÉE Glaspy v. Glaspy, 2011 NBCA 101 Glaspy c.

Glaspy, 2011 NBCA 101 CORAM: The Honourable Justice Larlee The Honourable Justice Bell The Honourable Justice Quigg CORAM : L’honorable juge Larlee L’honorable juge Bell L’honorable juge Quigg Appeal from a decision on motion of the Court of Queen’s Bench: February 10, 2011 Appel d’une décision sur motion de la Cour du Banc de la Reine : Le 10 février 2011 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : Inédite Preliminary or incidental proceedings: Court of Appeal [2011] N.B.J.

No. 126 (QL) Procédures préliminaires ou accessoires : Cour d’appel [2011] A.N.-B. n o 126 (QL) Appeal heard: September 13, 2011 Appel entendu : Le 13 septembre 2011

Judgment rendered: November 17, 2011 Jugement rendu : Le 17 novembre 2011 Reasons for judgment: The Honourable Justice Bell Motifs de jugement : L’honorable juge Bell Concurred in by: The Honourable Justice Larlee The Honourable Justice Quigg Souscrivent aux motifs : L’honorable juge Larlee L’honorable juge Quigg Counsel at hearing: For the appellant: David Lutz, Q.C. For the respondent: W.S. Reid Chedore Avocats à l’audience : Pour l’appelant : David Lutz, c.r. Pour l’intimée : W.S. Reid Chedore THE COURT The appeal is allowed and a new hearing is ordered. The appellant will have costs of $2,500.00.

LA COUR Accueille l’appel et ordonne la tenue d’une nouvelle audience. L’appelant obtient des dépens de 2 500 $. The judgment of the Court was delivered by BELL J.A. I. Facts [ 1 ] The appellant and the respondent were married on September 28, 1985. There is one child of the marriage, K.G., born […], 1990. The parties have lived separate and apart since February 19, 1995. On September 9, 1996 the parties appeared before Mr. Justice Graser on an application brought pursuant to the Family Services Act and the Marital Property Act.

His order settled all marital property issues and ordered the appellant to pay to the respondent $350 per month spousal support and $750 per month child support. […] [ 2 ] On February 10, 2011, a judge of the Court of Queen’s Bench, Family Division was scheduled to hear a motion brought by the appellant, in which he was seeking termination of child support payments to the respondent and permission to pay the support directly to K.G..

The motion judge was also scheduled to hear a counter motion in which the respondent was seeking arrears of child and spousal support based upon increases in the appellant’s income since the 1996 court order. [ 3 ] The appellant represented himself at the motion hearing, while the respondent was represented

by experienced legal counsel. In the course of attempting to determine the issues between the parties, the following exchange occurred: THE COURT: So, what is your position today with respect to Mrs. Glaspy’s request for child support and a variation of child support retroactive? MR. GLASPY: Well, I’m – I’m not in a situation to – to entertain that but again, I’m not – you know, I’m not here, Your Honour, to take away anything that’s already in place. I just want to be able to change what’s – my daughter – that’s needed for my daughter, I guess, in this case, as far as child support.

THE COURT: Well, what is it – MS. McCURDY: I might assist the Court. THE COURT: Sure. MS. MCCURDY: I believe Mr. Glaspy’s position is that he is content to pay the same amount of child support but wishes to pay it directly to the child. THE COURT: Well that – the payment – MS. MCCURDY: I believe that to be his current position. THE COURT: I can clarify one thing. The payment to the child directly, as they say on the street, “Ain’t gonna happen.” MR. GLASPY: Okay. THE COURT: It’s going to go through Child Support Services. MR. GLASPY: Right, no, no. Okay, I understand that. I – THE COURT: All right. MR.

GLASPY: I don’t – I don’t mean to change it that way. I just – THE COURT: Now – now the amount was seven hundred – MR. GLASPY: And, fifty. Seven fifty. MS. MCCURDY: And the seven fifty, sir was under the really, really old guidelines that were taxable and it’s never been changed. [Transcript pp. 3-4.][Emphasis added.]

[ 4 ] As is apparent from the above excerpt, neither the appellant nor the respondent was afforded any opportunity to address the issue raised with respect to the method of paying child support. This was clearly something the appellant wished to address and clearly something upon which he was not heard before the motion judge made his decision. [ 5 ] Without swearing or affirming any witnesses, the motion judge continued to question the appellant and the respondent’s counsel. The flavour of that exchange is captured in the following excerpt from the transcript: THE COURT: So, tell me what – Mr.

Glaspy – tell me what you think would be fair. MR. GLASPY: Well, I’m all right with this – oh sorry – like, I’ve said to K.G. before that I’m willing to look after all these debts. I do have – THE COURT: You mean, tuition – her education debts. MR. GLASPY: Right. From her until the end of her education, I will provide and give – THE COURT: You will cover complete? MR. GLASPY: I will cover complete. Plus, I will look after her debt that she has pending right now. THE COURT: And that debt is from what year? MR.

GLASPY: Is for ’08 and ’09, which she had borrowed over and above for her tuition, which would have been like about $4,000 for each of those years. And, mind you, she didn’t probably put the money in the right spot because she was living home for the first year that she had the $4,000, which I don’t mind that. I said, “That’s all right.” THE COURT: All right, let’s stop you there. MR. GLASPY: Okay. THE COURT: What’s wrong with that, Ms. McCurdy? MS. MCCURDY: Well, there – there’s nothing wrong with that on a go forward, I guess.

One of the reasons we’re here is that those contributions weren’t being made until there were competing motions. THE COURT: But, he was paying in terms of child support, pretty well – pretty well bang on, all these years. MS. MCCURDY: No, I – no, I do appreciate that. Albeit, he’s also – he’s received a tax deduction for it as well. THE COURT: Well, I mean –

MS. MCCURDY: And – and that’s – you know, and that’s fine. The – the additional – THE COURT: Actually, he would have been paying, based on fifty some thousand back in ’95 and through the years – MS. MCCURDY: Well the taxable guidelines were always a lot higher because of the – he’s getting 43 percent tax deduction. THE COURT: Mmm hmm. MR. GLASPY: Could I say something, You’re [sic] Honour? I’m sure that was taken into consideration. K.G. – or, Lynn did have child tax credit for the child too, which is probably why the court order was made the way it was.

THE COURT: Does anyone mind me running this hearing in the fashion that I am? MS. MCCURDY: No, not at all sir. I think it’s very efficient. THE COURT: What I’m trying to explain to you, Mr. Glaspy, normally, I would just say, “Okay, you tell me your side, call your evidence. You tell me your side, call your evidence.” It seemed to me from the last time and it seems to me now that we could probably – you could probably accomplish more if I kind of run a settlement conference. MS. MCCURDY: That would be appropriate. THE COURT: You – it’s more informal. MR. GLASPY: Sure.

THE COURT: As opposed to everybody getting up and cross-examining and – MR. GLASPY: Okay. Yeah, I’m up for that. THE COURT: Well, the reason I say that is you – is that you appear willing. And to listen and to – if you want to run a settlement conference, I’ll convert this to a settlement conference as opposed to a hearing . MS. MCCURDY: That – that’s appropriate, sir. MR. GLASPY: Sure. THE COURT: That means that I won’t order it – MR. GLASPY: Right.

THE COURT: – at the end of the day. But, if you can agree – MR. GLASPY: Okay, sure. THE COURT: Right? I give you the judge’s view and then if you don’t like it, you can take your chances and go in front of another judge and see what happens. But, with the whole purpose here, I think is to try to get something for – to get this resolved, get it over with; everybody moves on. MS. MCCURDY: Yes, sir. THE COURT: So, I’m going to convert this, with consent, to a settlement conference and that way I feel more comfortable – MR. GLASPY: Okay. THE COURT : – doing what I’m doing. MS. MCCURDY: Certainly, sir.

THE COURT: Okay. All right. So – oh yes, we have to go off the record. MS. MCCURDY: Okay. THE COURT: So that way, anything you say – whatever you say to me – MR. GLASPY: Right. THE COURT: – I won’t tell – [Transcript pp. 16-21.] [Emphasis added.] [ 6 ] While the record before the Court is silent with respect to the manner in which the settlement conference was conducted, both counsel agree the motion judge simply adjourned the hearing and directed the appellant and the respondent’s counsel to another room in the Courthouse with instructions to attempt to reach a settlement.

In the meantime, the motion judge proceeded to hear other cases. Three hours and fifty minutes later, the appellant and respondent’s counsel emerged from their meeting with minutes of settlement they wished to place on the record. The terms of settlement increased the total monthly outlay by the appellant from $1,100.00 to $2,642.00.

In addition, the appellant undertook to pay all of K.G.’s tuition and book expenses associated with her pursuit of a Bachelor of Arts degree and a Bachelor of Education degree, plus all student loans incurred to that time. [ 7 ] Immediately after leaving the Courthouse the appellant questioned his judgment in agreeing to the settlement, sought legal advice and filed this appeal.

II. Issue [ 8 ] Although the appellant raises several grounds of appeal, I am of the view this matter can be resolved based upon the procedural errors evident in the above excerpts and their obvious impact upon a self-represented litigant. III. Analysis [ 9 ] Because the appellant contends, as part of his grounds of appeal, that he felt pressured to enter into the settlement, I preface all of the following remarks with the comment that feeling pressured to reach an agreement cannot, in and of itself, constitute a ground of appeal.

No doubt, many litigants who resolve matters by out-of-court settlements feel some degree of pressure to do so by their counsel, counsel opposite and, on occasion, by judges. [ 10 ] The first error which placed an unfair burden upon the appellant was the motion judge’s conclusion, without having heard from the appellant, that payments could not be made directly to the appellant’s daughter. It is a fundamental principle of our adversarial system that a party has the right to be heard before a decision adverse to his or her interest is made by a court. (See for example, F.Y. v.

The Queen , 2011 NBCA 86 ; New Brunswick Legal Aid Services Commission v. Comeau and Comeau , 2009 NBCA 78 , 351 N.B.R. (2d) 269; and in the administrative context, Moreau-Bérubé v. New Brunswick (Judicial Council) , 2002 SCC 11 , [2002] 1 S.C.R. 249, Re Therrien , 2001 SCC 35 , [2001] 2 S.C.R. 3 at para. 82 , Moyer v.

Workplace Health, Safety and Compensation Commission , 2008 NBCA 41 , 331 N.B.R. (2d) 1 2 2). [ 11 ] Although the cases are not numerous, there is authority that supports the notion that payments to an adult child attending university and not living at home may be made directly to the child (see for example, Smith v. Smith , 2010 NBQB 304, 365 N.B.R. (2d) 165 at para. 60 ; Bell v. Bell , 2011 BCSC 212 , [2011] B.C.J. No. 273 (QL) at para. 35 ). The appellant had the right to expect the motion judge to hear his submission before making a decision.

This failure on the part of the motion judge contributed to the creation of a situation in which the appellant, a self-represented litigant, might feel unduly pressured to reach an agreement. [ 12 ] The second error which tainted the terms of the consent order occurred when the motion judge advised the parties he was converting the hearing into a settlement conference when, in fact, no settlement conference was held. A judge conducting a hearing, whether it is by way of motion, application or trial may direct the parties to appear before a judge for a settlement conference: Rule 50.07.

It is clear that the judge conducting the hearing may request another judge conduct the settlement conference. In the event the hearing judge chooses to conduct the settlement conference, he must disqualify himself from hearing the matter: Rule 50.14. Rules 50.08 and 50.09 set out the purpose of a settlement conference and the role to be played by the judge under whose direction the conference is to be held. Those Rules provide as follows:

50.08 Purpose of Settlement Conference A settlement conference is intended to allow the parties, under the direction of a judge, to discuss the possibilities of settlement. 50.09 What May Be Done at a Settlement Conference At a settlement conference, a judge may do one or more of the following: (

a) conduct the settlement conference in any manner the judge deems fair; (

b) ask questions of parties, solicitors or other persons in attendance; (

c) discuss settlement of the dispute; (

d) make a payment order or other appropriate order in the terms consented to on the face of the order by the parties; (

e) adjourn the settlement conference; (

f) consider the matters referred to in Rule 50.01(1); and (

g) direct that expert witnesses meet, on a without prejudice basis, to determine those matters on which they agree and to identify those matters on which they do not agree. 50.08 But de la conférence de règlement amiable Une conférence de règlement amiable a pour but de permettre aux parties de discuter des possibilités d’un règlement amiable sous la direction d’un juge. 50.09 Objets de la conférence de règlement amiable Un juge peut faire une ou plusieurs des choses suivantes à une conférence de règlement amiable:

a) présider la conférence de règlement amiable de la manière qu’il estime équitable;

b) poser des questions aux parties, à leurs avocats ou à toute autre personne présente;

c) discuter d’un règlement amiable du litige;

d) rendre une ordonnance de paiement ou toute autre ordonnance conformément aux termes acceptés ouvertement par les parties;

e) ajourner la conférence de règlement amiable;

f) considérer les questions visées à la règle 50.01(1);et

g) ordonner que les témoins experts se rencontrent sans préjudice afin de déterminer les questions sur lesquelles ils s’entendent et d’identifier les questions sur lesquelles ils ne peuvent pas s’entendre.

[ 13 ] Settlement conferences are to be conducted under the direction of a judge in a fair manner. While that direction should not be interpreted to require the judge’s presence with the parties during all of their discussions, it certainly does not permit the judge to adjourn a hearing, task an unrepresented litigant to meet with experienced legal counsel, proceed to conduct other cases and then simply endorse that which the parties subsequently agree upon.

A settlement conference authorized by the Rules of Court contemplates that a judge will be fully apprised of the position of both parties, assist the parties in understanding the issues, ask questions to explore potential common ground, in some cases provide his or her opinion on the potential outcome if the matter proceeds to a hearing and, generally, direct the discussions in a fair and impartial manner. Obviously, settlement conference judges must be exceedingly vigilant where one party is unrepresented and the other has the benefit of legal counsel.

Unfortunately, the attributes of a settlement conference were absent in the present case. Instead of proceeding with a settlement conference, the motion judge accorded the parties a court-sanctioned opportunity to negotiate. With respect to fairness in the conduct of settlement conferences, see Gene C. Coleman, Procedural Fairness and Case Conferences , (2004), 20 Can. J. Fam. L. 379. IV.

Conclusion [ 14 ] I am of the view the motion judge’s failure to respect the audi alteram partem rule and his failure to accord the appellant the protections inherent in a judicially-directed settlement conference, resulted in an agreement to which the appellant would not have otherwise agreed. I would allow the appeal and order a new hearing. The appellant will have costs of $2,500.00. _________________________________ B. RICHARD BELL, J.A. WE CONCUR: __________________________________ M.E.L. LARLEE, J.A. __________________________________ KATHLEEN A. QUIGG, J.A.

COURT OF APPEAL OF NEW BRUNSWICK 21-11-CA EDDY JOSEPH GLASPY APPELLANT EDDY JOSEPH GLASPY APPELANT - and - - et - LYNN HELEN GLASPY RESPONDENT LYNN HELEN GLASPY INTIMÉE Glaspy v. Glaspy, 2011 NBCA 101 Glaspy c.

Glaspy, 2011 NBCA 101 CORAM: The Honourable Justice Larlee The Honourable Justice Bell The Honourable Justice Quigg CORAM : L’honorable juge Larlee L’honorable juge Bell L’honorable juge Quigg Appeal from a decision on motion of the Court of Queen’s Bench: February 10, 2011 Appel d’une décision sur motion de la Cour du Banc de la Reine : Le 10 février 2011 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : Inédite Preliminary or incidental proceedings: Court of Appeal [2011] N.B.J.

No. 126 (QL) Procédures préliminaires ou accessoires : Cour d’appel [2011] A.N.-B. n o 126 (QL) Appeal heard: September 13, 2011 Appel entendu : Le 13 septembre 2011 Judgment rendered: November 17, 2011 Jugement rendu : Le 17 novembre 2011

ERRATUM: December 12, 2011 ERRATUM : Le 12 décembre 2011 Reasons for judgment: The Honourable Justice Bell Motifs de jugement : L’honorable juge Bell Concurred in by: The Honourable Justice Larlee The Honourable Justice Quigg Souscrivent aux motifs : L’honorable juge Larlee L’honorable juge Quigg Counsel at hearing: For the appellant: David Lutz, Q.C. For the respondent: W.S. Reid Chedore Avocats à l’audience : Pour l’appelant : David Lutz, c.r. Pour l’intimée : W.S. Reid Chedore THE COURT The appeal is allowed and a new hearing is ordered. The appellant will have costs of $2,500.00.

LA COUR Accueille l’appel et ordonne la tenue d’une nouvelle audience. L’appelant obtient des dépens de 2 500 $. ERRATUM With respect to the above-mentioned judgment rendered by this Court on November 17, 2011, paragraph 1 should now read as follows: The appellant and the respondent were married on September 28, 1985. There is one child of the marriage, K.G., born […], 1990. The parties have lived separate and apart since February 19, 1995. On September 9, 1996 the parties appeared before Mr. Justice Graser on an application brought pursuant to the Family Services Act and the Marital Property Act.

His order settled all marital property issues and ordered the appellant to pay to the respondent $350 per month spousal support and $750 per month child support. […]