R. Gordner, for the appellant

W. Fullerton and D. Ableser, for the

respondent

HEARD at London: November 16,

2015

SACHS, J. (ORALLY)

[1] This is an appeal from the decision of Thomas J., turning an accepted offer to settle into a court order pursuant Rule 18(13) of the Family Law Rules.

[2] This is a situation where the parties disagree on the valuation date for the purposes of the equalization payment calculation. According to the appellant wife, the appropriate valuation date was in May of 2013, and according to the respondent husband, it was in October of 2008. At the commencement of the proceedings

both parties swore and filed financial statements as required by the Family Law Rules, setting out their current financial positions and the relevant figures for a net family property valuation calculation as of the date they were asserting was the appropriate valuation date. In the respondent's case, his financial statement was sworn and filed in September of2013.

[3] In March of 2014, the appellant offered to settle the litigation for an equalization payment of $35,000. The respondent did not accept that offer until August of 2014, after he had been questioned and after he had undertaken to provide a financial statement for the appellant's valuation date, being May 10, 2013. The respondent accepted the appellant's offer without providing her with the information he had undertaken to provide.

[4] The appellant refused to sign minutes of settlement based on the accepted offer to settled and changed counsel. The respondent brought a motion for an order in accordance with the offer to settle, and the appellant moved for an order requiring the respondent to make the disclosure he had undertaken to make.

[5] Thomas J. granted the respondent's motion, and dismissed the appellant's.

[6] On this appeal, the appellant submits that the motion judge made a number of errors when he exercised his discretion to enforce the settlement.

He erred by narrowing his discretion such that he failed to consider all of the relevant factors he was required to consider. In particular the motion judge failed to consider the issues of mistake, prejudice, and the fact that before the appellant made her offer to settle to the respondent, the respondent had made her two "nuisance value" offers to settle.
The motion judge erred by nmTOwly interpreting the requirements of Rule 13(15) of the Family Law Rules and, in particular, he ignored the fact that that rule obligated the respondent to correct and update his financial statement to produce figures for the appellant's valuation date of May 10, 2013.
The motion judge erred when he failed to consider that the respondent had essentially concealed his financial situation as of May of 2013, by refusing to provide a financial statement that spoke to that date, in spite of an express undettaking to do so.

[7] As the motion judge appreciated, at the core of this case is the tension between two very important principles that are at stake in family law litigation: the strong policy considerations that favour encouraging parties to settle their own affairs, if possible (enforcing accepted offers to settle reinforces that policy); and the need to ensure that family law litigants provide full and continuing financial disclosure.

[8] The motion judge adverts to these principles at pages five to six of his decision.

[9] In effect, the appellant is arguing that this is a case where the respondent was allowed to deliberately avoid his obligation to provide full and continuing disclosure by accepting the appellant's offer to settle.

[10] It is clear from the motion judge's reasons that the same submission was made before him. As put by the motion judge:

In this case applicant's counsel says the policy consideration of fair and full disclosure is paramount and that it cannot be satisfied without a full trial.

[11] The motion judge considered this argument and, in doing so, accepted that a number of the propositions put forward by the appellant's counsel were sound. In particular, at pages seven to eight of his decision, the motion judge notes:

Mr. Gordner correctly argues that courts in family law cases are quick to set aside domestic contracts and settlement where a party has failed in its obligation to disclose or actively deceived their former partner. The court steps in where there is clearly an unequal playing field often because one party was at the time without legal counsel. They do so because the cmnts are here to see that justice is done; that the settlement is fair; that it is informed. In that way the position of the administration of justice is enhanced.

[12] However, the motion judge went on to find that these principles were not compelling on the fact situation before him. He did so for a number of reasons.

[13] First, by making the offer to settle that she did, the appellant limited the downside of the litigation she was about to undertake- litigation where the issue was a very live one that could go either way.

[14] Second, at the time she made the offer to settle, the appellant had the respondent's financial statement, sworn in September of 2013 (only a few months after her valuation date in May of 20 13) That financial statement gave the particulars of the respondent's assets and liabilities as of September of 2013. As the appellant's counsel admitted, it was on the basis of this financial statement that he was able to do a calculation that would closely approximate the appellant's equalization payment entitlement, if her valuation date was accepted by the court.

[15] As put by the motion judge:

The applicant now has received a preliminary expe1i opinion that suggests her equalization payment should have been in excess of

$90,000. The estimate was done with no more information regarding

the respondent than was available on March the 17, 2014. There was

no reason that this work could not have been done before the offer was made.

[16] Finally, there were sound reasons in this case for bringing finality to the litigation.

As put by the motion judge:

The concept of offers to settle allow parties to potentially terminate litigation by often choosing to accept a less than complete victory while placing costs pressures potentially on the other side.

[17] These reasons make it clear that on the facts of this case the motion judge was satisfied that the appellant had the disclosure she needed when she made the offer to settle at issue, and to appreciate that in doing so she was compromising on an equalization payment claim that exceeded $90,000. Given this, the motion judge

did not feel that the justice of the case before him required him to refuse to enforce the accepted offer to settle.

[18] We see no error in principle in this reasoning. Nor do the reasons of the motions judge disclose that he misapprehended the evidence before him.

[19] With respect to the appellant's submission about ignoring or underemphasizing certain relevant factors, it is important to note that it is not the function of an appellate comi to overturn the discretionary decision of the court below because the appellate court might have balanced certain factors differently. (see Hickey v. Hickey, [1999] 2 S.C.R. 518, at para. 12).

[20] It is tme that the motion judge did not specifically advert to the issue of prejudice, but this was not the focus of the appellant's argument before him. It was the principle of full and continuing disclosure.

[21] On this point we disagree with the appellant that Rule 13(15) of the Family Law Rules requires the respondent to file a new financial statement based on the appellant's valuation date. The mle does not contain such a requirement. However, we do agree that when the valuation date is an issue, both parties are obliged to make the necessary disclosure with respect to both valuation dates.

[22] We disagree with the appellant that the motion judge erred in his consideration of the issue of mistake. He understood the issue and correctly distinguished the case which the appellant had put before him on this issue (Milios v. Zagas, 38 O.R. (3d) 218). He also clearly appreciated that he had a discretion not to enforce the settlement if his sense of justice would be offended by doing so.

[23] Finally, we sec no merit to the submission that the motion judge failed to consider the "nuisance value" offers made by the respondent. At the time the appellant made her offer, the appellant had counsel. The appellant's evaluation of her situation should have been and presumably was, dictated by that counsel's advice,

not by the respondent's evaluation of her situation as represented by his offers to settle.

[24] For these reasons, we are dismissing the appeal. I have endorsed the back of the appeal book as follows: For reasons given orally, this appeal is dismissed. The respondent is entitled to his costs of this appeal, which we fix in the amount of

$5000, all inclusive.

J. Henderson J.

Date of Reasons for Decision: November 16,2015

.Date of Release: _

CITATION: Beyer v. Rau, 2015 ONSC 7234 DIVISIONAL COURT FILE NO.: 15-0010

DATE: -------------------

ONTARIO

SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

SACHS, J. HENDERSON AND TAUSENDFREUND JJ.

BETWEEN:

Evelyn Beyer

Appellant

-AND-

Joseph Leo Rau

Respondent

ORAL REASONS FOR DECISION

Date of Reasons for Decision: November 16,2015

Evelyn Beyer v. Joseph Leo Rau, 2015 ONSC 7234

Case Summary

R. Gordner, for the appellant

W. Fullerton and D. Ableser, for the

2015

Judges

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues