ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
GREER, JENNINGS and GANS JJ.
B E T W E E N:
SUDY SHEN
Applicant
(Respondent on Appeal)
- and -
MARGARET SHEN
Respondent
(Appellant)
Judith M. Nicoll for the Respondent Sudy Shen
Cheryll A. Harris for the Appellant Margaret Shen
Eric K. Gillespie for the Respondent (Appellant) Margaret Shen
HEARD AT TORONTO: Oct. 30, 2007
INTRODUCTION
1Margaret Shen appeals the decision of J.R. MacKinnon J. released February 27, 2007, which dismissed the appellant’s motion for judgment on minutes of settlement dated May 31, 2006. Leave to appeal that decision to this court was granted by Justice Boyko on March 27, 2007. For the reasons which follow I would allow the appeal.
background
2The appellant and the respondent are husband and wife. They separated and were involved in what became a hard fought matrimonial dispute. On May 30, 2006, the respondent husband’s solicitor prepared minutes of settlement resolving all of the issues raised in the matrimonial proceedings. The minutes were signed by the husband and forwarded to the wife’s solicitor. The wife signed the minutes of settlement on May 31, 2006. Thereafter the husband had second thoughts about some of the terms of the minutes of settlement. He apparently entered into direct negotiations with his wife seeking variations. Because the minutes were not implemented the litigation returned to a case conference judge. On the case conference the husband took the position that the wife had agreed to an oral variation of the minutes of settlement. The wife denied any such agreement. In a very detailed endorsement the case conference judge provided a timetable within which the wife was to bring a motion for judgment enforcing the minutes of settlement with leave to the husband to bring a “cross-motion … re: oral variation of minutes of settlement”.
3The wife duly brought her motion to enforce the minutes of settlement, which came on for a hearing before J.R. MacKinnon J. The motions judge held in part that:
It is clear that, with the benefit of independent legal advice, both parties sign the Minutes of Settlement, thereby entering into a binding contractual agreement.
4The motions judge further found that although there were post minutes of settlement attempts at a compromise, “no such compromise was ever reflected in writing and the parties differ substantially on what was agreed to … at any time after May 31/06”.
5The motions judge held that he could not on a summary application determine credibility issues as to what was or was not agreed to post-settlement and, as a result, directed that there be a trial of those issues. He did not further frame the issues.
6He accordingly dismissed the application. The wife now appeals that decision.
standard of review
7There are no factual findings at issue in this appeal. The standard of review is therefore correctness.
analysis
8The application before the motions judge was brought under Rule 18 of the Family Law Rules and Rule 49 of the Rules of Civil Procedure for a judgment in the terms of the offer to settle accepted by the wife when she signed the minutes of settlement.
9The husband declined to accept the direction of the case conference judge that he bring a cross-motion with respect to his position that there had been a subsequent oral agreement to vary terms of the minutes of settlement. Accordingly, the issue before the motions judge was whether the minutes created a binding contract between the parties. The motions judge, in very clear language, found that a binding contract had been entered into. That finding is not under attack. Further, it became clear during argument before us that the finding was accepted by both the appellant and the respondent.
10The real issue raised on this appeal is whether having found that the minutes of settlement created a valid, binding contract between the parties it was open to the motions judge to proceed further to deal with an issue that was not placed before him by the respondent, that is, whether there had been a subsequent oral agreement to vary the written contract.
11In my opinion the motions judge went beyond what was required of him in determining the issue raised in the motion. Having found that the parties had entered into a binding contractual agreement settling their differences, the motions judge erred in declining to apply the enforcement provisions of the Family Law and civil rules under which the application was brought. He characterised the application as being a motion for summary judgment, which technically it was not, and found credibility issues arising from alleged post-agreement discussions between the parties.
12It is clearly a matter of sound public policy that litigants be encouraged to settle their differences. That must particularly be so in disputes between separated spouses which, if unresolved, inevitably lead to horrendous financial and emotional costs. Here, when the minutes of settlement were not under attack, and when the court was not asked to find that there had been a subsequent variation of the minutes, to fail to give effect to the minutes would seriously undermine the benefits provided to litigants by the rules pertaining to settlements.
conclusion
13The appeal is allowed. The order of the motions judge and his subsequent order as to costs are both set aside. Judgment will issue pursuant to the terms of the minutes of settlement dated May 31, 2006.
14The appellant is entitled to her costs of the motion, the motion for leave to appeal (which were left to this court for disposition) and of this appeal, all on a partial indemnity scale. We have heard submissions from counsel and fix those costs as follows, in each case inclusive of GST and disbursements,
i) The summary judgment motion - $6,750
ii) The motion for leave to appeal - $4,500
iii) The appeal to the Divisional Court $10,000
Total - $21,250
RELEASED:
JENNINGS J.
I agree GREER J.
GANS J:(Concurring)
15This is an appeal from the decision of Justice Robert MacKinnon dismissing a motion for summary judgment in which he, effectively, directed a trial of an issue as to whether or not the parties before us had agreed to amend Minutes of Settlement (“Settlement”) executed on May 31st, 2006 some few months after the conclusion of the Settlement.
16Leave to appeal was granted to this Court by Boyko J, because, inter alia, she was of the view that the motions Judge had proceeded on a wrong footing in entertaining the Respondent husband’s position that the Settlement had been amended absent a cross-motion seeking some form of declaratory relief. Boyko J. also observed in her transcribed oral reasons that there was reason to doubt the correctness of the decision at first instance because the motions Judge had misapplied the principles attendant to motions for summary judgment in respect of a motion to enforce an accepted offer of settlement under Rule 49.09 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
17Respectfully, I am not persuaded that the motions Judge was “clearly wrong”, as that test was described by this court, differently constituted, in M.F. v. Sutherland, [2003] O.J. No. 3026, or, indeed, erred in considering the motion before him as a motion for summary judgment or one analogous to that form of motion under either the Rules of Civil Procedure, Rule 20(4) or the Family Law Rules, O. Reg. 114/99, in particular Rules 16(6) or 18(13). In my opinion, that type of analysis mires the court in matters of form and not substance, which results in a disservice being visited upon the litigants, if not the administration of justice.
18Put otherwise, I have no difficulty with a party litigant resisting a motion for summary judgment or arguing that an offer had not been accepted or acceptance did not result in a binding settlement by “putting his best foot forward” and filing material which supports a contrary position in fact and at law. This is not a novel concept as it was carefully and fully canvassed by Molloy J. in Bayerische Landesbank Girozentrale v. R.S.W.H. Vegetable Farmers Inc., 2001 28050 (ON SC), [2001] O.J. No. 745. In addition, I do not see a material difference between the procedure prescribed by the Family Law Rules and the Rules of Civil Procedure and their applicability to the matters in issue before us. Indeed, both counsel proceeded as if the procedure under either set of rules was similar if not identical.
19That being said, it does not appear that s. 55 of the Family Law Act, R.S.O. 1990, c. F.3 was brought to the motions Judge’s attention when the matter was first argued. Nor does it appear to have been raised in either the motions or appeal courts in Bogue v. Bogue (1999), 1999 3284 (ON CA), 46 O.R. (3d) 1, a decision upon which some reliance was placed by Respondent’s counsel. S. 55(1), which is relevant to the matters before us, provides as follows:
(a) A domestic contract and an agreement to amend or rescind a domestic contract are unenforceable unless made in writing, signed by the parties and witnessed.
20In the matter before us, the Settlement was in writing, executed by the parties and appropriately witnessed. But for the allegations of what was said by the Respondent to have transpired in the months subsequent, the Settlement was valid, binding upon the parties and enforceable by either of them. Furthermore, it was not subject to condition, as perhaps it should have been in retrospect. Nor was it designed to be an agreement to agree or an agreement subject to contract. But for paragraph 14 of the Settlement, which called for the preparation of a “standard form of Separation Agreement” to be drafted by the Respondent’s solicitor, it was, in all respects an unqualified agreement.
21That having been said, if there were post-settlement discussions which resulted in an amendment to the Settlement, at its highest, it arose out of discussions between the husband and wife, which were not reduced to writing or memorialized in a memorandum of agreement. In my opinion, even if there were some issues of ‘credibility’ that warranted a consideration by a trial Judge, the absence of a writing in conformity with the above section would, in the final analysis, be fatal to the Respondent’s position and the matter should not have been permitted to go off the enforcement rails.
22I would allow the appeal accordingly and grant the relief that was fashioned by my colleagues.
GANS J.
RELEASED:
COURT FILE NO.: 1502/05
DATE: 20071105
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
GREER, JENNINGS and GANS JJ.
B E T W E E N:
SUDY SHEN
Applicant
(Respondent on Appeal)
- and -
MARGARET SHEN
Respondent
(Appellant)
REASONS FOR JUDGMENT
RELEASED: November 5, 2007