Divorce settlement of damages with respect to child doesn't bar child’s later action: Ontario CA

A mother who did not add her child as a party or describe herself as her child’s litigation guardian in her divorce proceeding was in no position to advance or settle a claim on the child’s behalf, the Ontario Court of Appeal has ruled.

The mother of the respondent in Ryan v. Hebert, 2022 ONCA 750 filed a divorce application in 2009. She claimed general, punitive, and aggravated damages related to the appellant's alleged sexual molestation of his two stepdaughters when they were married. She sought damages of $250,000 for each child, for a total of $500,000.

The appellant and the mother then entered into minutes of settlement, made on consent. A master signed the minutes and incorporated them into a 2011 final order. The order’s seventh paragraph stated that, in full and final satisfaction of the mother’s damages claim with respect to the children, the appellant should pay her $5,000 in five monthly installments, in trust for the children.

In affidavits apparently supporting the final order, the mother and her counsel said that the appellant’s transfer of the matrimonial home to the mother and the resulting relinquishment of an equalization claim totalling around $55,500 formed part of the context for the quantum of damages.

The appellant filed a motion under r. 21.01(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 seeking the dismissal of the respondent’s action for damages for sexual abuse that he allegedly inflicted on her when she was a minor. The appellant contended that the final order made in the divorce proceedings between the appellant and the respondent's mother barred the respondent's action.

In February 2022, Justice Robert Maranger of the Ontario Superior Court of Justice dismissed the appellant’s motion upon finding that the final order was not a bar to the respondent's action and was not an infant settlement approved in line with r. 7.08 of the Rules of Civil Procedure.

A master had no jurisdiction to approve an infant settlement, the motion judge explained. Rule 7.08 provided that the settlement of a claim made by or against a person under disability would not bind that person unless a judge gave approval.

On appeal, the appellant made the following arguments:

• while the final order did not comply with an infant settlement order’s technical requirements, the affidavits of the respondent's mother and her counsel showed their intention to obtain such an order
• the divorce application, the final order, and the supporting affidavits demonstrated that the mother was de facto acting as the respondent’s litigation guardian though not technically acting in that capacity
• regardless of whether the master had jurisdiction, he signed the final order
• the final order was not appealed or set aside

Respondent’s action not barred

The Court of Appeal dismissed the appeal. Contrary to the appellant’s position, the 2011 final order, which settled the damages that the appellant should pay relating to his children, could not be construed as an order resolving a claim by or on behalf of the respondent, the appellate court said.

The appellate court ruled that the respondent's mother was in no position to advance or to settle a claim on the respondent’s behalf. First, in the divorce proceeding, the mother did not add the respondent as a party or describe herself as the respondent’s litigation guardian, unlike in the appellant’s cited case of Azzeh v. Legendre, 2017 ONCA 385, where the title of the proceedings named both the minor and his mother, as his litigation guardian.

Second, the Court of Appeal held that neither the divorce application nor the final order described the mother’s claim as being on behalf of her children. The question of whether the mother had an independent cause of action against the appellant for damages with respect to her children was irrelevant, the appellate court noted.

Next, the appellate court determined that the final order was not an infant settlement complying with r. 7.08 since it did not recite that rule or recognize the need for court approval and since the master who signed it had no jurisdiction to approve an infant settlement.

Lastly, the appellate court rejected the appellant’s arguments that most of the identified deficiencies were mere irregularities, that form could not triumph over substance in this case, and that the outcome would not be different if r. 7.08 was met.