Court File and Parties

Court File No.: FS-22-84-0000 Date: 2023-10-13 Ontario Superior Court of Justice

Between: PENNY WIDDIFIELD, Applicant And: ORVIS HUNTER, Respondent WILLIAM FANJOY, Non-party

Counsel: William Abbott and Stephen Kirby, for the Applicant Murray Maltz, for the Respondent Susan Sack, for non-party William Fanjoy

Heard: October 10, and July 26, 2023, in-person at Brampton

Ruling on Motion

Before: Wilkinson J.

The Issue

[1] The Applicant, Penny Widdifield, brings a motion seeking summary judgment enforcing a settlement agreement that she submits was reached at a mediation between herself and her ex common law partner, the Respondent, Orvis Hunter.

[2] Mr. Hunter denies that a final settlement agreement was reached, and takes the position that there is presently no settlement agreement between the parties. In the alternative, he argues that if it is found that the parties entered into a binding settlement, it should be deemed unconscionable and set aside. He submits that Ms. Widdifield’s motion should be dismissed, and the matter should be returned to the mediator to conduct an arbitration.

[3] The parties and their counsel attended a mediation with mediator Marc Tannenbaum, on August 25, 2021. Ms. Widdifield was represented by William Abbot, and Mr. Hunter was represented by Bill Fanjoy. Leading up to the mediation and following the mediation, Mr. Hunter also relied upon a friend, Sarah Stone, to assist him with reviewing and preparing email communications. At some point within the six months following the mediation, Mr. Hunter retained his present lawyer, Murray Maltz.

[4] For the reasons that follow, I find that the parties reached a binding, appropriate settlement agreement confirmed by email at the conclusion of the August 25, 2021 mediation. Ms. Widdifield is therefore granted summary judgment in accordance with the terms of the settlement reached at mediation.

Preliminary Issue – Outstanding Cost Order

[5] Prior to the hearing of the motion before me, the parties conducted a motion before Ricchetti J. to determine what portions of the file of Mr. Fanjoy would be produced to the parties in advance of this motion. At the beginning of the motion before me, counsel for Mr. Fanjoy indicated that there had been some dispute with respect to the scope of production of Mr. Fanjoy’s file pursuant to the June 19, 2023 order from Ricchetti J. Counsel indicated that the parties had reached consensus as to what could be produced for this motion, noting that the entirety of the Fanjoy file had not been produced. She also advised that Mr. Fanjoy had not been examined as a witness in advance of this motion, and that the parties have agreed that I should make no findings of fact with respect to Mr. Fanjoy’s involvement in this matter.

[6] At the commencement of argument on the motion, Ms. Widdifield indicated that Mr. Hunter had not yet paid the $5,000 cost award owed to Ms. Widdifield pursuant to the June 19, 2023 ruling of Ricchetti J., and submitted that Mr. Hunter should not be permitted to make submissions on the motion as a result of his failure to pay the outstanding costs.

[7] Having considered the objection, I ruled that notwithstanding the failure of Mr. Hunter to pay Ms. Widdifield costs in accordance with the timeline set out by Ricchetti J., in order to make a just determination of this motion and consider all available evidence, I was prepared to hear submissions from Mr. Hunter. I further ruled that the issue of noncompliance with the order of Ricchetti J. would be dealt with after the issues in the main motion has been determined.

[8] Mr. Hunter states that Ms. Widdifield has breached the terms of the mediation agreement by putting into evidence emails exchanged between the parties during the mediation. This issue has already been considered by Ricchetti J. In his ruling dated June 19, 2023, Ricchetti J. determined that the communications leading up to and the purported settlement agreement are relevant and not subject to any privilege.

Background

[9] Prior to separation, the parties had cohabited for thirty years, with over twenty of those years spent on a farm property, municipally known as 15366 Gore Road, Caledon ("the farm"). The parties have two adult children who were already independent, and did not require support by the time that the mediation took place in 2021. The parties were never legally married.

[10] The mediation focussed primarily on Ms. Widdifield’s claims for spousal support, and a claim that she had a trust in the farm property resulting from her absence from the workforce to provide caregiving services for the two children of the union.

[11] The parties agree that financial documentation was exchanged in advance of the mediation, and that an appraisal of the farm was performed. However, Mr. Hunter takes the position that Ms. Widdifield’s pension and other assets were not considered during the mediation.

[12] On August 23, 2021, the parties and their lawyers signed a mediation agreement two days prior to the August 25, 2021 mediation.

[13] Questions to be addressed

[14] The dispute before me focusses on three questions:

a) Is this an appropriate case for summary judgment? b) Was a binding settlement reached between the parties at the conclusion of the mediation? c) If I find that a binding settlement was reached, should the agreement be enforced?

Mr. Hunter’s position: There is no binding settlement

[15] Mr. Hunter deposes that he was of the belief that the mediation was nonbinding, and would only take effect when a settlement agreement was explained to him by his lawyer, signed, and witnessed. He deposes that at no time did he believe he had to sell his farm, as his livelihood is based on the farm where his mechanic shop is located. Mr. Hunter maintains that he did not understand the full impact of the proceedings on the day of the mediation, and that he did not give his lawyer instructions to settle his case on a final basis. Mr. Hunter argues that the following factors establish that a binding settlement was not reached between the parties:

a) no formal Minutes of Settlement were signed between the parties; b) no Separation Agreement was drafted or signed by the parties; c) there was some uncertainty regarding essential terms in the agreement related to the sale of the farm; d) no arbitration agreement was signed; e) he did not fully understand the details of the settlement; f) he did not give his lawyer instructions to settle for the terms now being claimed, and had no intention to create a binding agreement; g) he was under duress at the time he agreed to the settlement resulting from a threat to report his business activities to the Canada Revenue Agency (“the CRA”); and h) the settlement is unconscionable.

[16] Mr. Hunter also indicates that he does not have the ability to understand written material and that he has difficulty understanding complex matters. In his affidavit he states “I have never read a book, newspaper or magazine and when I watch a movie I often cannot follow the storyline”. As a result, he deposes that he did not believe that any agreement would be binding unless it was signed, witnessed, and explained to him by his lawyer.

[17] Mr. Hunter submits that at the time of the mediation he was under duress, as he felt threatened that Ms. Widdifield or her lawyer was going to report him to the CRA, and that he would be subject to a CRA audit. Mr. Hunter also deposes that he was told directly by Mr. Fanjoy that his business would be audited by the CRA if he did not settle his case.

[18] Mr. Hunter states that Mr. Fanjoy, “had no true understanding of the issues” and that “he was not truly representing me in a forceful and meaningful fashion”. Mr. Hunter further states that he never agreed to the mediator making a decision on any of these issues, and that he does not understand the concept of arbitration, and states that it was never explained to him.

[19] Mr. Hunter denies that the totality of the assets of the parties were discussed during the mediation or settlement process. He states that Ms. Widdifield’s assets including her pension and savings were not considered.

[20] Mr. Hunter also argues that there was no settlement because the settlement terms relating to the specifics of the sale of the farm were not yet determined.

[21] Mr. Hunter deposes that he did not give settlement instructions to Mr. Fanjoy, but eventually agreed to pay $220,000 to Ms. Widdifield three months after the mediation had concluded, as Mr. Fanjoy told him to pay the funds to Ms. Widdifield.

[22] Mr. Hunter claims that the settlement being advanced by Ms. Widdifield is unconscionable, as there was no joint family venture between the parties. He describes their relationship as “loveless”, and that the parties did not share expenditures, and did not contribute to each others’ assets or pool resources. He deposes that the farm was where he grew up with his parents, and describes it as an asset owned solely by him. He also deposes that the parties did not name the other as beneficiaries under their wills or life insurance policies, and that they did not take vacations together.

[23] Mr. Hunter states that he purchased the first home the parties lived in located in Bolton, Ontario. He later sold that property, the proceeds of which assisted him in purchasing the farm from his father. Ms. Widdifield assisted with cleaning the farm when the parties first moved in, but after that time, Mr. Hunter primarily took care of repair and maintenance of the farm, and Ms. Widdifield cooked, cleaned, did laundry, and looked after the children. Mr. Hunter deposes that a substantial amount of repair to the farmhouse and renovations to other areas on the farm were completed by him after the farm was purchased.

[24] Mr. Hunter notes that Ms. Widdifield has produced no financial records or documentation to establish the financial contributions she claims she made to the first property where the parties lived in Bolton, or later when they lived on the farm.

[25] Mr. Hunter states that Ms. Widdifield was the one working with the bookkeeper, and that she made the decision for the parties to file their taxes together. He says he was not consulted regarding this issue, and did not get involved in this tax filing decision.

[26] Mr. Hunter deposes that Ms. Widdifield stole from him and was violent towards him during the relationship.

[27] Ms. Widdifield’s position: There is a binding settlement between the parties

[28] Ms. Widdifield’s position is that the parties reached a fair, binding settlement at the conclusion of the mediation on August 25, 2021, where both parties were represented by experienced counsel, and that the agreement should now be enforced.

[29] Ms. Widdifield deposes that there was appropriate financial disclosure between the parties prior to the mediation, including sworn financial statements.

[30] Ms. Widdifield deposes that it was well known to Mr. Hunter that he would have to sell the farm to finalize a settlement with her, and notes that this issue is referenced in her mediation brief.

[31] Ms. Widdifield further deposes that the behaviour of the parties following the mediation confirms that there was a binding agreement between the parties. In particular, Ms. Widdifield points to the following facts as confirmation of the settlement:

a) Mr. Hunter paid Ms. Widdifield $220,000 on September 24, 2021, within one month of the mediation, as was agreed to by the parties; b) A text message between Mr. Hunter and the parties’ daughter Jamie dated October 28, 2021, in which Mr. Hunter acknowledged that he had to close his business and move; c) A Facebook message dated November 21 between Ms. Widdifield and Mr. Hunter’s father’s wife, Iris, in which Iris stated “We are sad because the farm has to be sold to settle the differences between the two of you”; d) Texts between Ms. Widdifield and Mr. Hunter between August 25, 2021 and September 25, 2021, in which Mr. Hunter repeatedly states he will obtain “top $$” for the property when it is sold, and he repeatedly asks Ms. Widdifield to delay the listing of the property until the spring of 2022; d) The parties took steps to begin consulting with realtors; and e) Communication from Ms. Widdifield’s lawyer to Mr. Fanjoy on November 17, 2021, indicating that Ms. Widdifield would be prepared to delay listing the farm for sale until April 2022 provided that her 37% interest was registered on title to the property.

[32] Ms. Widdifield produces an email communication between Mr. Hunter and Mr. Fanjoy (produced pursuant to the June 19, 2023 Order of Ricchetti J.) in which Mr. Fanjoy confirmed to Mr. Hunter on September 21, 2021 that there were Minutes of Settlement issued by the mediator that are binding on the parties.

[33] Ms. Widdifield deposes that the settlement agreement contained sufficient terms regarding the manner in which the farm was to be sold to be a binding agreement. She states that terms such the timing and price of the listing for the farm were to be recommended by the real estate agent, and the ultimate selling price was to be determined by the market. She argues that the agreement does not need these terms to be clarified for the agreement to be binding.

[34] Ms. Widdifield further deposes that Mr. Hunter was to obtain an opinion from his accountant regarding the impact of capital gains from the sale of the property, with the intention that those funds be held back from the sale proceeds.

[35] Ms. Widdifield states that the mediation agreement confirms at paragraph 10 that an email communication from the mediator confirming the terms of the settlement can represent a binding settlement agreement given that the mediation took place over Zoom. She also states that the email from the mediator to the parties at 4:36 pm on August 25, 2021 confirmed that the parties had an agreement.

[36] Ms. Widdifield relies upon an email from the mediator, Marc Tannenbaum, dated October 4, 2022, in which he attached his August 25, 2021 email from 3:30 pm which was entitled “Settlement Terms”, and included the terms agreed to by the parties. Mr. Tannenbaum states:

“If the email below was intended to be an offer rather than documenting out the terms agreed to, I would have titled it “proposed settlement terms”, indicated which side was offering this or made it clear that it was my own suggested resolution.

I would not have included point #7 re a dispute resolution provision for the wording of the separation agreement if the substantive terms were still being negotiated. Finally, I note the parties even agreed on contents and on who would draft the separation agreement.”

[37] Mr. Tannenbaum’s October 4, 2022 email also confirms that he received nothing from either party following the August 25, 2021 mediation, to suggest that any of the settlement terms had been altered.

[38] Ms. Widdifield deposes that at no time prior to Mr. Maltz being retained was she or her counsel advised that Mr. Fanjoy needed to obtain or confirm Mr. Hunter’s instructions. Similarly, there was never any suggestion that Mr. Fanjoy did not have the ability to bind Mr. Hunter to an agreement, or that Mr. Hunter was incapable of understanding the settlement discussions or the resolution reached between the parties. Ms. Widdifield acknowledges that Mr. Hunter now takes the position that he did not instruct Mr. Fanjoy to make the settlement, but notes that Mr. Hunter has not produced any documents from Mr. Fanjoy’s file in support of that allegation.

[39] During his cross examination, Mr. Hunter agreed that he was sitting beside his lawyer for the entire mediation. Ms. Widdifield submits that it is not reasonable to suggest that he was unaware that a settlement had been reached, or that he did not know the specific terms of that settlement when he was in the same room as his lawyer throughout the mediation process.

[40] Ms. Widdifield deposes that no threat was made by her or her lawyer to the Canada Revenue Agency regarding Hunter’s tax liability.

[41] Ms. Widdifield further deposes that the settlement is not unconscionable, as at trial she would have presented adequate evidence to establish a claim for a constructive trust resulting from the following factors:

a) The parties lived together for nearly thirty years; b) She paid rent to Mr. Hunter at a rate of $500 per month for eight years until their first child was born, and these rental payments helped develop the equity in the parties’ first property in Bolton, which was later sold to help purchase the farm; c) She was out of the work force for fourteen years (other than some limited part time work as a waitress) to stay home to look after the parties’ children, cook, and look after the home; d) She assisted for years with bookkeeping for Mr. Hunter’s mechanic business; e) She assisted with extensive cleaning when the parties first moved into the farm; f) She contributed financially to the upkeep of the home and its décor; g) She frequently paid for the childrens’ activities when she had income available to her; h) The parties filed taxes together, allowing Mr. Hunter to income split; i) When Ms. Widdifield worked at jobs that had benefits she put Mr. Hunter on the plan as a dependent; j) When the parties lived together Mr. Hunter paid $30,000 to pay off her debts on at least one occasion; k) Even though it was kept in his name, Mr. Hunter provided her with a car to drive.

History of offers at the mediation on August 25, 2021

[42] The history of the offers exchanged is set out in the affidavit of Ms. Widdifield. Mr. Hunter is unable to confirm or dispute the history of the offers, as he deposes that he was not aware of offers being exchanged, and gave no settlement instructions to his lawyer. Copies of the emails communicating the settlement agreement are attached to Ms. Widdifield’s affidavit. I have reviewed the email correspondence between counsel and the mediator, and accept that the history of offers exchanged occurred as set out below.

[43] Mr. Hunter made the first offer to settle shortly before 2:00 pm, in which he proposed to sell the farm, and to provide Ms. Widdifield with 33% of the net sale proceeds, including an advance of $200,000 pending the sale.

[44] Ms. Widdifield made a counteroffer asking for 38% of the net proceeds of the sale of the farm.

[45] Mr. Hunter made a subsequent offer to provide Ms. Widdifield with 36% of the net sale proceeds of the farm.

[46] The parties ultimately compromised at Ms. Widdifield receiving 37% of the net sale proceeds of the farm, and Mr. Hunter providing an advance to Ms. Widdifield of $220,000, which would be applied as a credit to Ms. Widdifield’s 37% share of the net sale proceeds from the farm.

[47] The mediator circulated an email to the parties at 3:30 pm on August 25, 2021, confirming the terms set out in paragraph 44 above, and also included a clause that Ms. Widdifield was to keep specific items from the farm upon closing, such as the Singer sewing machine stand, and other items for which she was required to provide a list within thirty days. The email also discussed the form of the release that was to be used, and indicated that the Separation Agreement (“SA”) was to be drafted by counsel for Ms. Widdifield. The email also importantly contained the following sentence from the mediator: “If there is a disagreement on the wording of the SA, I will summarily arbitrate the dispute.”

[48] The mediator sent the parties an email with a revised list of settlement terms at 3:52 pm. This email from the mediator also contained this sentence:

“The email setting out these terms between the lawyers will constitute an enforceable agreement and Domestic Contract.”

[49] At 4:20 pm Mr. Hunter’s lawyer sent several comments responding to the mediator’s email using uppercase letters, to which Ms. Widdifield’s lawyer responded in yellow highlighting at 4:24 pm. In reviewing these additional changes, the only issue for which there does not appear to have been agreement is in part 10, which dealt with the manner in which the parties were going to communicate regarding arrangements for the sale of the home.

[50] The mediator emailed the parties at 4:36 pm, and advised that counsel had agreed that the ongoing communications between the parties would be conducted by the lawyers.

[51] Following the mediation, there were additional emails exchanged between the lawyers discussing extending the time to list the home to the spring of 2022.

[52] A separation agreement was never signed by the parties. It is the lack of a signed separation agreement that appears to be at the heart of this dispute.

[53] On March 3, 2022, Bill Fanjoy wrote to Ms. Widdifield’s lawyer indicating that he was no longer retained by Mr. Hunter. The farm had still not been listed for sale by that point.

[54] On March 22, 2022, Ms. Widdifield emailed the mediator expressing frustration that the settlement had not been concluded. This email prompted the mediator to email counsel for both parties asking if there was anything he could do to assist the parties.

[55] On March 28, 2022, Ms. Widdifield’s lawyer was notified that Murray Maltz was now counsel for Mr. Hunter, and that Mr. Hunter was taking the position that the issues in dispute between the parties were not settled.

Authorities

Is this an appropriate case for summary judgment?

[56] Rule 16(6) of the Family Law Rules provides that if there is no genuine issue for trial, the court shall make a final order without a trial on all or part of any claim made in a case. The Rule for summary judgment is mandatory.

[57] Rule 16 (6.1) indicates that in determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

[58] Summary judgment is available to the parties when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result. (Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 SCR 87, para. 50).

[59] The responding party on a motion for summary judgment must "lead trump or risk losing." A party opposing a motion for summary judgment must show a "real chance of success" against the party seeking summary judgment. A party must put their best foot forward when resisting an Order for summary judgment. (Virc v. Blair, 2012 ONSC 7104, para. 15).

Does the settlement agreement contain a valid dispute resolution mechanism?

[60] Mr. Hunter makes two submissions regarding the agreement to arbitrate contained in the settlement between the parties that cannot both be correct. He first argues that the term in the settlement allowing the mediator to summarily arbitrate any disputes following the settlement is invalid, as no arbitration agreement relating to the sale of the farm was ever signed by the parties.

[61] The settlement agreement deals with dispute resolution as follows:

part (a): Each party to propose up to two agents. Failing agreement on agent, the mediator, Marc Tannenbaum will summarily arbitrate. Marc Tannenbaum will also summarily arbitrate any dispute over the sale of the property. The parties will execute an arbitration agreement to empower Marc Tannenbaum to do so. Failing agreement on agent, the mediator, Marc Tannenbaum will summarily arbitrate that issue.

[62] And at part (i) of the settlement agreement:

The Applicant's lawyer will draft a separation agreement incorporating these terms. Failing agreement on any term Marc Tannenbaum will summarily arbitrate.

[63] Mr. Hunter argues that as no arbitration agreement was signed, there was no dispute resolution mechanism available to the parties to resolve disputes arising from the sale of the farm, and accordingly there is no final agreement in place between the parties.

[64] However, Mr. Hunter also submits that I should dismiss Ms. Widdifield’s motion for summary judgment, and refer the matter back to an arbitration before Mr. Tannenbaum, in accordance with the parties’ agreement to have Mr. Tannenbaum resolve disputes related to the settlement. Mr. Hunter cannot have it both ways. Mr. Hunter’s reliance upon the arbitration clause in the settlement agreement indicates that he is prepared to accept that the parties had agreed that the mediator would arbitrate any disputes arising from the settlement.

[65] I find that the parties clearly agreed in their settlement to have Mr. Tannenbaum arbitrate any disputes arising from the implementation of the settlement. The failure of the parties to have a signed arbitration agreement does not unravel their agreement to have Mr. Tannenbaum arbitrate any disputes, nor does it render the settlement agreement invalid.

[66] Although Mr. Hunter argues that the motion should be dismissed and referred back to the mediator for arbitration, he does not suggest that it is inappropriate for the case before me to be dealt with by way of a summary judgment motion.

Analysis

[67] I am satisfied that I have sufficient evidence before me to allow me to make the necessary findings of fact and apply the law to determine if there is a genuine issue for trial in the case before me. I have affidavit materials from both parties, and transcripts from the cross examination of Mr. Hunter. Mr. Hunter chose not to cross examine Ms. Widdifield. I also have evidence from the mediator involved in the case. Pursuant to guidance set out in Hryniak, summary judgment in this matter is a proportionate, more expeditious and less expensive means to achieve a just result.

Was a binding settlement reached between the parties at the conclusion of the mediation?

Can a party presume that counsel has the ability to bind the opposing party to a settlement?

[68] Mr. Hunter argues that he did not instruct his counsel to settle this case, and that accordingly, the settlement should be set aside on this basis.

[69] There is well established authority that “a solicitor of record has the ostensible authority to bind his or her clients and that opposing counsel are entitled to rely upon that authority in the absence of some indication to the contrary” (Dick v. McKinnon, 2014 ONCA 784, para. 4, citing Scherer v. Paletta, [1966] 2 OR 524 (C.A)).

[70] There is no evidence before me that before or during the mediation it was ever communicated to Ms. Widdifield or her counsel that Mr. Fanjoy did not have instructions to bind Mr. Hunter to any settlement reached by the parties. It was therefore appropriate for Ms. Widdifield and her counsel to assume throughout the mediation that any representations from Mr. Fanjoy were made with the full authority of Mr. Hunter.

What constitutes a binding settlement agreement?

[71] Mr. Hunter argues that there is no binding agreement between the parties because there are no signed Minutes of Settlement, and no Separation Agreement was drafted following the mediation as agreed to by the parties.

[72] The test to determine whether a binding agreement exists is an objective one, and is described by the Federal Court of Appeal in Apotex v. Allergan Inc., 2016 CAF 155, 399 D.L.R. (4th) 549, at para. 22 as follows:

The test is whether a reasonable bystander observing the parties would conclude that both parties, in making a settlement offer and in accepting it, intended to enter into legal relations.

[73] And further, at para. 24 of Apotex:

Indeed, many cases show that—sometimes much to the surprise of clients and lawyers alike—seemingly idle conversations can have binding, legal consequences.

[74] The concept of a binding agreement that is not necessarily in writing was also discussed by the Ontario Court of Appeal in Bogue v. Bogue (1999), 46 O.R. (3d) 1, at para. 12:

As a matter of normal business practice, parties planning to make a formal written document the expression of their agreement, necessarily discuss and negotiate the proposed terms of the agreement before they enter into it. They frequently agree upon all of the terms to be incorporated into the intended written document before it is prepared. Their agreement may be expressed orally or by way of memorandum, by exchange of correspondence, or other informal writings. The parties may "contract to make a contract", that is to say, they may bind themselves to execute at a future date a formal written agreement containing specific terms and conditions. When they agree on all of the essential provisions to be incorporated in a formal document with the intention that their agreement shall thereupon become binding, they will have fulfilled all the requisites for the formation of a contract. The fact that a formal written document to the same effect is to be thereafter prepared and signed does not alter the binding validity of the original contract.

Did the parties reach a binding settlement agreement on August 25, 2021?

[75] The mediation agreement sets out the criteria for settlement allowing email settlements under part 10 as follows:

“The parties acknowledge and agree that there shall be no settlement until they execute formal Minutes of Settlement reviewed by their legal advisors or, if not feasible because of timing and because of the mediation taking place by Zoom, an e-mail communication from the mediator that confirms the terms of settlement, the contents of which are acknowledged by both counsel to be correct.”

[76] This mediation was conducted via Zoom. The mediation agreement provided for the settlement to be confirmed by email if the mediation was conducted by Zoom. Neither party communicated any objection to confirming a settlement from the mediation by email.

[77] Mr. Hunter points to an email from the mediator sent on March 22, 2022, many months after the mediation had been conducted, that inquires if a Separation Agreement had yet been signed. Mr. Hunter states that this email strongly suggests that the mediator was of the view that a Separation Agreement was required in order for the parties to have a valid and enforceable agreement.

[78] Mr. Hunter further argues that a program such as Docusign could have been used to sign Minutes of Settlement following the mediation, and that therefore an email confirmation of the settlement is inadequate to bind the parties, particularly as there was no urgency to have the settlement documents signed immediately. I do not agree. While signed Minutes of Settlement would no doubt have been helpful to the parties when considering the terms of settlement following the mediation, they are not essential to establish a settlement if there is other evidence that the parties had reliably reached an agreement.

[79] Mr. Hunter also argues that the mediator’s notes support his position that the mediator believed the settlement contained different terms than the terms expressed in the email exchange between the parties. The mediator’s notes were not provided to me, so I am unable to address this issue raised by Mr. Hunter.

[80] The mediation agreement did not specifically identify the issues between the parties that were to be addressed at the mediation, or what would happen if any of the terms of settlement were unclear. However, the email from the mediator to the parties at 3:52 pm on August 25, 2021, that set out the terms of the settlement stipulated that counsel for Ms. Widdifield was to draft a separation agreement incorporating the settlement terms, and that “Failing agreement on any term of same, I will summarily arbitrate”.

[81] Having reviewed the August 25, 2021 email thread between the parties and the mediator in its entirety, I am satisfied that there was agreement as between the parties with respect to the essential terms of the settlement, that is, that the farm was to be sold, Ms. Widdifield was to receive 37% of the net sale proceeds of the farm, and that Ms. Widdifield was to receive an advance of $220,000 from Mr. Hunter that would be applied to her portion of the net sale proceeds.

[82] I find that the agreement of the parties to refer matters in dispute back to the mediator to summarily arbitrate relates to details pertaining to the implementation of the settlement agreement. By way of example, it is useful to consider the following exchange between the mediator and counsel for Mr. Hunter relating to part (7) of the settlement agreement sent by the mediator at 3:52 pm:

“7. Penny to receive the sofa, coffee table and chairs as well as the Singer Sewing machine table after the agreement of purchase and sale has been executed or at any time between then and closing. She will alse (sic) receive a list of momentos and Christmas decorations which will be described by Will to Bill. She will receive these upon identifying (sic) these items.”

[83] Hunter’s counsel responded to this email at 4:20 pm as follows:

“ONLY ONE CHAIR AS SHE ALREADY TOOK ONE.MOMENTOS TO BE AGREED UPON AND IF CANNOT THEN MARC TO DECIDE ISSUE”

to which Ms. Widdifield’s counsel responded at 4:24 pm “OK”.

[84] Mr. Hunter argues that the agreement reached at the mediation was not final as there were provisions in the agreement still not defined, including:

a) The date the farm would be listed for sale; b) The price at which the farm would be listed for sale; c) The agreed price at which the farm was to be sold; d) The terms of the sale listing; e) The commission to real estate agent was not determined or agreed upon; f) The manner in which his capital gains from the sale of the farm were to be calculated; g) The amount of capital gain that was to be paid upon the sale; h) The amount of money to be paid by him to Widdifield upon the sale; i) The Amount of holdback funds to address the capital gains issue following the sale; and j) The disposition costs associated with the sale of the farm was not determined.

[85] I reject Mr. Hunter’s argument that the lack of clarity in the settlement agreement regarding the specific details of the sale such as the identity of the listing agent, the listing price, etc. undermines the validity of the settlement agreement. The agreement stipulated that the mediator was to summarily arbitrate disputes arising from the settlement, and both parties and their lawyers confirmed this term by email. Accordingly, the details of the agreement that were not yet determined were to be summarily arbitrated by the mediator if the parties were unable to agree upon those details.

[86] The fundamental question to be considered is if there was a "meeting of the minds", or consensus ad idem, on the essential settlement terms. The mediator sent the following email to the parties at 4:32 pm (note that “Chic” referred to below is Mr. Hunter):

“As much as possible, Chic would like to keep the communications through their son in making arrangements for the transfer of the contents. Otherwise, Chic will deal directly with Penny or through counsel on sale issues.

If there is a disagreement between the accountants, I will arbitrate how to resolve it based on their input. It might mean holding the differential in trust if there is a difference in opinion. Needless to say, CRA has the final word on the final number.

Can you both confirm one last time we are ad-idem?”

[87] Ms. Widdifield’s lawyer responded to this email from the mediator two minutes later at 4:34 pm, and stated:

“ Regardless of the son being an adult communication should not flow through him so it looks as though Bill and I will have to continue to communicate until the sale is complete where required. I am find (sic) with the other provisions below concerning any disagreement on taxes, etc”.

[88] Two minutes after that, at 4:36 pm, the mediator emailed the parties and stated:

“Agreed.

I have spoken to Bill and he agrees as well”.

[89] Mr. Hunter argues that the 4:36 pm email above cannot be relied upon as confirming a settlement, as it is not defined as to what “Bill” is agreeing. Having reviewed the email communications, it is clear that when the mediator refers to “Will” he is referring to Ms. Widdifield’s lawyer, William Abbott, and when the mediator refers to “Bill” he is referring to Bill Fanjoy, Mr. Hunter’s lawyer. When reviewing the chain of emails coming quickly in time one after another, it is clear that the parties agreed through email that ongoing communications concerning removing contents from the home and the sale of the house were to be facilitated through counsel, as set out above. The desire of Mr. Hunter to have his son involved in these conversations does not change or alter the fundamental settlement terms that were agreed upon by the parties.

Mr. Hunter’s claim that he did not understand the settlement terms

[90] Mr. Hunter deposes that he never agreed to the mediator making a decision on any of the settlement issues, and that he does not understand the concept of arbitration, and states that it was never explained to him. Mr. Hunter also initially deposed that the mediation agreement signed by Mr. Fanjoy was never explained to him, and that he was not aware that a mediation agreement had been signed by Mr. Fanjoy on his behalf. This statement from Mr. Hunter is problematic given that his own signature appears on the mediation agreement. In a subsequently signed affidavit, Mr. Hunter no longer states that he did not sign the mediation agreement, but states that he did not read it, or have it explained to him.

[91] Mr. Hunter does not provide sufficient evidence to set aside the settlement agreement between the parties due his alleged lack of understanding of the terms of the settlement. The mediation agreement was signed by Mr. Hunter. I do not accept that Mr. Hunter was unaware that he had agreed to participate in a mediation, or that a dispute resolution process was available to him if there was any ongoing disagreement about the manner in which the settlement was to be implemented.

[92] Mr. Hunter deposes that he doesn’t own a computer, but his friend (Sarah Stone) reads emails for him and explains them to him, and that Ms. Stone is assisting him with this litigation, and reads all the legal documents and explains them to him. There is no affidavit submitted from Ms. Stone as to what she believed Mr. Hunter understood about the outcome of the mediation on August 25, 2021 that supports Mr. Hunter’s claim that he did not understand that he had agreed to sell his farm at the conclusion of the mediation. Mr. Hunter has not met his onus to establish that he did not understand the terms of the settlement at the time that the settlement between the parties was reached.

Behaviour of the parties following the mediation

[93] In Ward v. Ward, 2011 ONCA 178, 104 O.R. (3d) 401, the Ontario Court of Appeal considered a fact scenario similar to the one before me. In that case, the parties attended a mediation involving a Memorandum of Agreement written by counsel resolving the issues, that contemplated a subsequent separation agreement to be drafted. One of the terms of settlement was an equalization payment of $250,000 to be paid by the husband. Following the mediation, the husband provided the equalization payment. The wife accepted the payment, and then later contested the husband’s claim that the Memorandum of Agreement was binding. Lang J.A. stated at paragraph 69 of the decision:

Most significantly, the husband and wife acted as though they had a binding agreement. The husband delivered his $250,000 cheque to the wife's real estate lawyer on December 7, 2005. The wife accepted those funds and used them to close the purchase of her new home. She expressed no second thoughts or concerns about the terms of the executed MOA. This was not the conduct of parties who thought they had yet to negotiate other terms. Rather, it was the conduct of parties who acted and performed as though they had a deal, knowing as they did that the language of the separation agreement was being worked out by their counsel.

[94] The text messages between Mr. Hunter and Ms. Widdifield between the date of the mediation and September 25, 2021 suggest that Mr. Hunter clearly was aware that he was going to have to sell the farm to comply with the settlement terms.

[95] Mr. Hunter argues that the texts between him and Ms. Widdifield following the mediation demonstrate that the negotiations between the parties were still ongoing. I do not agree. The bulk of these texts involve Mr. Hunter pushing Ms. Widdifield to agree to list the property for sale at a later date in the spring of 2022. The texts do not alter the fundamental agreement that Mr. Hunter was going to provide Ms. Widdifield 37% of the net proceeds of the sale of the farm. I include a few examples of the texts from Mr. Hunter to Ms. Widdifield that demonstrate his understanding that the farm was to be listed for sale. The texts below are dated August 30, 2021 from Mr. Hunter to Ms. Widdifield:

“I would perfure listing farm in spring please chris and I have lots cleanup and I want place clean as I want most $$$ we can get”

“You can send me an agent in spring no problem. U know how hard I've worked here want top $”

[96] Mr. Hunter also sent Ms. Widdifield the text messages below regarding contacting a real estate agent:

“Please work with me on this pick realestate and list in may chris and I have way to much work ahead need to clear head as I am totally strested “

“In March I will talk to all no problem . We will get more then”

“Talk to all in spril sell in may Chris and I are stressed out pressure all on me I have 6 month moving and cleaning out shop barn etc”

[97] In the text messages above, Mr. Hunter repeatedly assures Ms. Widdifield that he was going to get “top $” for the farm. His text messages do not express confusion or uncertainty about the terms of the agreement.

[98] It is true that some of the texts from Mr. Hunter to Ms. Widdifield suggest that they slow the process down to allow a “clear head” to think, and Mr. Hunter indicates that he is experiencing stress having to prepare the farm for listing. But nowhere in these text messages does Mr. Hunter express surprise or confusion about the fact that the farm was to be listed for sale.

[99] Mr. Hunter sent the advance payment of $220,000 to Ms. Widdifield on September 24, 2021 as per the settlement agreement. Mr. Hunter deposes that he sent this payment because Mr. Fanjoy told him to do so, and that it was not paid for over three months. This is clearly a false statement, as Ms. Widdifield provides confirmation that the payment was received by her lawyer on September 24.

[100] The October 28, 2021 text messages between Mr. Hunter and the parties’ daughter Jamie also demonstrates that Mr. Hunter was aware that he was going to be selling the farm, as he stated he was “closing the family business”, “losing livelihood”, and “moving away selling everything I own” (spelling corrected).

[101] The November 21, 2021 Facebook message exchange between Ms. Widdifield and Mr. Hunter’s father’s wife, Iris, also demonstrates that Mr. Hunter’s family was aware that the settlement required him to sell the farm. Iris stated to Ms. Widdifield: “Well we are sad because the farm has to be sold to settle the differences between the two of you.” Clearly Mr. Hunter’s father’s wife understood that the farm would have to be sold following the mediation to resolve the issues between Mr. Hunter and Ms. Widdifield. Although not specified in the affidavit materials, as Mr. Hunter’s father and his wife were not involved in the litigation, I infer that Iris learned that the farm was to be sold through communications with Mr. Hunter.

Post mediation email from the mediator:

[102] The October 4, 2022 email from mediator Marc Tannenbaum also indicates that he was of the belief that a settlement had been reached between the parties, as his email to the parties was entitled “Settlement Terms” rather than a reference to an “Offer to Settle”. As well, Mr. Tannenbaum’s email also confirms that he received nothing from either party following the August 25, 2021 mediation to suggest that any of the settlement terms had been altered. Mr. Hunter did not choose to question the mediator prior to the motion being argued.

Mr. Hunter’s claim that he did not give Mr. Fanjoy instructions to agree to sell the farm

[103] Mr. Hunter is very clear in his affidavit that he did not give Mr. Fanjoy instructions to agree to sell the farm, and that he did not understand that any agreement reached on the day of the mediation was binding.

[104] Relevant in this regard is an email exchange between Sarah Stone and Bill Fanjoy from September 21, 2021. I will reproduce the most relevant portions of this email. Ms. Stone stated:

“Hi Bill

I have just spoken to Chic at length about the current status of everything.

Penny has now dropped by Chics property twice in the last couple of days with today being the most recent visit and she has verbally told chic she is prepared to wait until spring (April) to list the property to provide time for Chic to get the property in a saleable condition.

Now perhaps I missed an email or two but it sounds like it is being requested that Chic pay Penny the $220k by Friday of this week. To my knowledge there is no documentation signed between the parties setting out all what has been agreed to at the mediation at this time. No monies should exchange hands until of the settlement are finalized, documented and signed off by both parties.

Chics understanding is that the $220k to be paid will be deducted from the sale of the property when the time comes as well. This should form part of the document.

Please work on Pennys lawyer on a draft agreement setting out the terms for all parties review.

Thank you in advance.

Sarah on behalf of Chic”

[105] It appears as though this email from Sarah Stone was sent to counsel for Ms. Widdifield as well as to Bill Fanjoy. Mr. Fanjoy responded to Sarah Stone’s email the same day, on September 21, 2021, with the following comment:

“This should not have been sent to Mr. Abbott. Please get me the names of the 2 agents and the commission structure. I have been asking for this for some weeks. I have not agreed to have Chic pay any more than what he agreed to. Mr. Tannenbaum issued Minutes the day of the mediation which are binding. If Chic doesn’t pay on time then this could make it difficult getting an extension to delay the listing to next spring.”

[106] Ms. Stone responded the same day to the email from Mr. Fanjoy:

“Bill

We will get you the realtors and commission structure later today.

Can you forward a copy of the minutes. As a side note, these will have to be amended to reflect the change in sale date and no penalty payments etc.”

Mr. Fanjoy responded to this last email from Sarah Stone with the following comment:

“It can only be amended with her consent”.

[107] This email exchange between Sarah Stone on behalf of Mr. Hunter, and Mr. Fanjoy confirms that Mr. Fanjoy believed that the mediator had sent out binding minutes of settlement on the day of the mediation, and that there was an agreement between the parties that could only be amended with the consent of Ms. Widdifield.

[108] Whatever instructions Mr. Hunter gave or did not give to Mr. Fanjoy involves the solicitor/ client relationship between those two individuals. If there was a breakdown in communication within that relationship, that circumstance is not sufficient as a stand-alone factor to set aside any agreement reached between the parties.

[109] Considering the totality of the evidence before me, including the email communications on the day of the mediation, and various texts, emails and other communications following the mediation as set out above, I find that following the mediation, Mr. Hunter was aware that a deal had been made that required him to sell his farm, and that a binding settlement agreement was reached between the parties on the day of the mediation. It would appear that upon reflection, Mr. Hunter was no longer agreeable to this deal, and incorrectly believed (or let on that he believed) that the lack of a settlement agreement signed by the parties created a reason to unravel the deal.

Should the settlement reached at mediation be enforced?

Was Mr. Hunter under duress at the time that he entered into the settlement agreement on the day of the mediation?

[110] Mr. Hunter claims that he was under duress at the time that the settlement agreement was made, and that it should be set aside on this basis. This claim by Mr. Hunter has not been established.

[111] Mr. Hunter deposes that he believed that he had been threatened by Ms. Widdifield and/or her counsel that his business would be reported to the CRA for an audit if a deal was not reached, at least in part as a result of a comment that he claims was made to him by the parties’ daughter. No affidavit evidence has been provided by the daughter to confirm what may have been said to Mr. Hunter by her regarding the CRA.

[112] Mr. Hunter also deposes that his lawyer, Mr. Fanjoy, warned him that Ms. Widdifield and/or her lawyer would notify the CRA that he worked for cash if he did not settle his claim. Mr. Hunter argues that the existence of his perceived threat that CRA would audit his business is reflected in the somewhat unusual settlement term which stated: “Non-disclosure/confidentiality agreement to be contained in a Separation Agreement, including disclosure to CRA or either parties finances, present or past.”

[113] Ms. Widdifield denies that she or her lawyer made any threats to Mr. Hunter about the CRA. Further, her counsel argues that if Mr. Hunter had concerns about tax audits or CRA involvement, that is not the fault of Ms. Widdifield, and that those concerns resulted from his own decisions about how he ran his business.

[114] Mr. Hunter chose not to question Ms. Widdifield in advance of this motion regarding her denial that she threatened Mr. Hunter with CRA involvement when it was open to him to do so pursuant to the Order of Ricchetti J. The same Order did not allow Ms. Widdifield to question Mr. Fanjoy.

[115] The case law establishes that the threshold to prove that an agreement was made under duress is high. In Ludmer v. Ludmer, 2013 ONSC 784, 33 R.F.L. (7th) 331, Penny J. states at para. 53:

Duress involves a coercion of the will or a situation in which one party has no realistic alternative but to submit to pressure. There can be no duress without evidence of an attempt by one party to dominate the will of the other at the time of the execution of the contract. To prove duress, the applicant must show that she was compelled to enter into the marriage contract out of fear of actual or threatened harm of some kind. There must be something more than stress associated with a potential breakdown in familial relations. There must be credible evidence demonstrating that the complaining party was subject to intimidation or illegitimate pressure to sign the agreement.

[116] I cannot make a finding as to whether Mr. Hunter was threatened with CRA involvement on the basis of the written record before me. Ms. Widdifield denies that any such CRA threat was made, and there was no affidavit from the parties’ daughter confirming the statement Mr. Hunter claims that she made to him regarding threatened CRA involvement.

[117] But even if Mr. Hunter was able to establish that the threats made to him regarding CRA involvement occurred (and I make no finding in this regard), I am not satisfied that a threat of CRA involvement by itself is sufficient to establish that Mr. Hunter was acting out of fear, or “threatened with harm” and therefore was under duress at the time that he entered into the settlement with Ms. Widdifield at the mediation. Any potential harm arising from CRA involvement would only occur if Mr. Hunter has not properly declared his income in the past.

[118] Mr. Hunter deposes that the mediator told him from the beginning of the mediation that he had to sell the farm. This statement from the mediator, even if true (and I make no finding in that regard), also does not create “threatened harm” to Mr. Hunter sufficient to set aside the agreement due to Mr. Hunter’s claimed duress.

[119] Mr. Hunter had counsel present with him throughout the mediation. He had adequate time alone with his lawyer to express his concerns and to discuss his options. If despite the protection of having counsel he is now saying he signed the agreement under duress, that is a matter that can be addressed between him and his lawyer. But it is not an appropriate circumstance to set aside the settlement.

Should the settlement agreement be set aside as being unconscionable?

[120] Mr. Hunter relies on section 56(4) of the Family Law Act, to set aside the settlement agreement between himself and Ms. Widdifield as being unconscionable. Mr. Hunter has failed to establish that the settlement in question was unconscionable.

[121] A domestic contract will be set aside when a party was unable to protect his or herself. McGee J. considered this issue in Harnett v. Harnett, 2014 ONSC 359, 43 R.F.L. (7th) 464, and confirmed that the end result of a negotiation is not what determines unconscionability at para. 93:

The test for unconscionability is not weighing the end result, but rather the taking advantage of any party due to the unequal positions of the parties. See Mundinger v. Mundinger, [1969] 1 O.R. 606 (Ont. C.A.); [Additional citations removed].

[122] I further note guidance received from the Court of Appeal that the Court’s discretion not to enforce a settlement should only be exercised in rare and exceptional circumstances: Srebot v. Srebot Farms Ltd., 2013 ONCA 84, at para. 6, if on consideration of all the relevant factors disclosed by the evidence, the enforcement of the settlement would lead to clear injustice: Srebot, para. 10.

[123] It is not before me to determine if a constructive trust claim made by Ms. Widdifield would necessarily have succeeded, or what constitutes a reasonable percentage of the value of the farm to be awarded to Ms. Widdifield. My role is to determine if the agreed upon settlement creates an injustice to either one of the parties. Mr. Hunter chose not to cross examine Ms. Widdifield on her affidavit evidence. Having reviewed Ms. Widdifield’s affidavits, I am satisfied that she produced enough evidence to create a realistic risk for Mr. Hunter that she could be successful in some measure in her constructive trust and resulting trust claims. Accordingly, I do not find that the settlement creates an injustice for Mr. Hunter.

[124] I understand that Mr. Hunter’s business is on the farm, and that he is emotionally attached to the farm as he was raised there as a child. These factors do not negate Ms. Widdifield’s right to a constructive trust claim as against Mr. Hunter. The evidence suggests that the main asset for which Mr. Hunter can provide payment to Ms. Widdifield to acknowledge this constructive trust is to sell the land, which is the reality that likely led to the settlement being reached between the parties on August 25, 2021.

[125] Although Mr. Hunter indicates in his motion materials that Ms. Widdifield’s pension and assets were not thoroughly canvassed during the mediation process, his argument that the settlement was unconscionable focusses primarily on the sale of the farm. Ms. Widdifield deposes that she does not receive a pension from her previous position at Rogers Communications, but she did receive a severance package when she left that employment, which was shared with the family.

[126] Mr. Hunter chose not to cross examine Ms. Widdifield regarding the value of her pension and her assets in advance of this motion. I was not provided with details regarding the value Ms. Widdifield’s current pension, or the value of assets that she currently possesses beyond the information disclosed in her Financial Statement. There is no evidence before me to suggest that the settlement between the parties was unconscionable as a result of pension benefits or assets owned by Ms. Widdifield.

[127] Mr. Hunter deposes that Ms. Widdifield stole from him and was violent towards him during the relationship. Ms. Widdifield denies these allegations. I was not advised of any police involvement. There is insufficient information regarding these allegations for me to rely on them in arriving at a decision on the issue before me.

Should the binding settlement between the parties be enforced?

[128] I acknowledge guidance from the Ontario Court of Appeal in Zavarella v. Zavarella, 2013 ONCA 720, 117 O.R. (3d) 641, para. 49, that parties are to be encouraged "to settle their affairs with the confidence that their settlement will not be interfered with lightly". As such, settlement "[A]greements should not be interfered with, except in very narrowly circumscribed circumstances."

Factors to be considered in determining whether to enforce an agreement:

[129] There are numerous factors to be considered when determining if an agreement should be enforced. In Gorman v. Gorman, 2021 ONSC 2577, at para. 70 Dennison J. summarized some of the factors that the Court will have to consider in determining whether or enforce an agreement. I will review each factor in the context of the facts of this case.

a) Were either of the parties represented by legal counsel or the beneficiary of legal advice? Both parties were represented by experienced counsel.

b) Was either party otherwise disadvantaged at any time during the course of the negotiations? Mr. Hunter deposes that he has an inability to understand complex matters and was disadvantaged during the negotiations as a result of that issue. There is no medical information before me to suggest that Mr. Hunter is incompetent, or incapable of understanding the type of issues that were addressed at the mediation on August 25, 2021. Ultimately it is a matter between him and his counsel as to how well he understood the settlement terms, and what they meant practically to him prior to an agreement being reached.

c) Can the written material the parties prepared, or the oral representations, that are being relied upon support a prima facie conclusion that there was a settlement agreement? I have found that the email exchanges between counsel and the mediator were sufficient to establish that a settlement agreement was reached between the parties.

d) Does the evidence demonstrate that the parties intended that the written or oral representations or negotiations are to be binding on them? The email communications between counsel on the date of the mediation and the subsequent email from the mediator confirming his view that a settlement had been reached are sufficient to demonstrate that counsel had an expectation that the settlement between the parties was binding. Any lack of understanding on the part of Mr. Hunter regarding the binding nature of the agreement reached at mediation is a matter to be addressed between Mr. Hunter and his former counsel.

e) Was there an intention that some final act or determination be made before the settlement was to be final and binding? The settlement agreement reached through the email exchanges indicates that Ms. Widdifield’s lawyer was to draft a Separation Agreement to be signed by the parties. I have not been given any information as to why there was a delay in the drafting of the Separation Agreement However, I do not find that the delay in drafting the Separation Agreement undermines the essential terms of the settlement that was reached on the day of the mediation.

f) Does the enforcement or non-enforcement of the negotiated resolution result in an injustice to either of the parties? Mr. Hunter argues that the settlement is unconscionable, and ought to be set aside. He argues that Ms. Widdifield does not provide sufficient evidence to establish her entitlement to the 37% of the farm property that was negotiated to represent her claim to a constructive trust. Mr. Hunter further argues that despite having two children together, the parties essentially lived separate lives, and did not engage in a joint family venture.

Ms. Widdifield deposes that she was removed from the work force for the better part of fourteen years to stay home to look after the parties’ two children, clean, the home and cook for the family. She argues that her career would have advanced even further if she had not left her job to care for the children. The parties agree that Ms. Widdifield assisted Mr. Hunter with bookkeeping for his business.

There is sufficient evidence before me to establish that it was not unreasonable for Ms. Widdifield to advance a claim for a constructive trust based on her contributions to the home, the children, and Mr. Hunter’s business during the course of marriage. Mr. Hunter has failed to establish that the settlement agreement results in an unconscionable outcome based on the facts before me.

g) Does enforcement encourage negotiated settlement and discourage litigation, and does it support the overall purpose and intent of the principles of the Family Law Act? The totality of the evidence indicates that the parties reached an agreement at mediation that was intended to be binding between the parties. The agreement was a compromise based upon Ms. Widdifield’s constructive trust claim, that was fair and appropriate given Ms. Widdifield’s contributions to the children, the family home and to Mr. Hunter’s business during the course of the parties’ relationship.

Conclusion

[130] I find that the agreement reached between the parties on August 25, 2021 was not unreasonable, or unconscionable. Accordingly, it supports the overall purpose and intent of the principles of the Family Law Act to enforce the settlement.

[131] I conclude that the settlement between the parties be enforced pursuant to the following terms reached at the August 25, 2021 mediation (recognizing that the timeline in part (b) for the listing of the property has already passed):

a) Pt Lt 17 CON 3 ALBION AS IN VS51245, EXCEPT PT 1, 43R3080, PT 1 43R4864, PT 1, 43R4898; Caledon and known municipally as 15366 The Gore Road, Caledon, ON L7C 3E3 shall be listed for sale at a time and price recommended by a jointly chosen agent. Each party shall propose up to two agents. Failing agreement on agent, the mediator, Marc Tannenbaum will summarily arbitrate that issue. Marc Tannenbaum will also summarily arbitrate any dispute over the sale of the property. The parties shall execute an arbitration agreement to empower Marc Tannenbaum to do so. Marc Tannenbaum will have the discretion to award costs of such arbitration. The Applicant shall be permitted to register a mortgage on title at her expense with the term of no interest and no payments on the same.

b) The Respondent shall cover all carrying costs of the property pending closing and the closing shall not take place earlier than August 31st, 2022, unless the parties otherwise agree on an earlier date;

c) The Applicant shall receive 37% of the net sale proceeds after all disposition costs including capital gains tax and the Respondent is to retain the balance; the Respondent shall obtain an opinion from his accountant as to the capital gains taxes to be paid and those monies will be held back from the sale proceeds and be available to be utilized by the Respondent when his taxes come due. If the taxes held back are lower or higher then the parties will share in or contribute to their proportionate share. The Applicant also reserves the right to have her accountant complete a calculation of the Capital Gains and the Respondent will be able to carry all of the improvements to the property and taxes forward to reduce the taxes.

d) There shall be no spousal support and the parties shall execute a release of spousal support claims in Miglin form. The Respondent shall cover all carrying costs of the property pending closing.

e) The Respondent shall pay an advance to the Applicant of $220,000, payable within 30 days of the mediation and deducted from the Applicant's 37% interest in the property.

f) There shall be no other claims to property by either party with the exception as set out above.

g) The Applicant shall receive the sofa, coffee table and one chair as well as the Singer Sewing machine table after the agreement of purchase and sale has been executed or at any time between then and closing. The Applicant shall also receive a list of mementos and Christmas decorations which will be described by the lawyers. The Applicant shall receive these upon identifying these items failing which Marc Tannenbaum shall arbitrate the issue.

h) The Applicant and Respondent shall execute a non-disclosure / confidentiality agreement to be contained in a Separation Agreement, including disclosure to CRA of either party's finances, present or past.

i) If the taxes held back are lower or higher then the monies held back, the parties will share in or contribute to their proportionate share.

Costs:

[132] If the parties are unable to agree upon costs, Ms. Widdifield is to prepare submissions no longer than three pages double spaced by October 30, 2023, not including any Bills of Costs or Offers to Settle. Mr. Hunter’s response is also to be limited to three pages double spaced, and is due 15 days after receipt of Ms. Widdifield’s cost submissions. No reply submissions shall be filed unless requested by me. Costs submissions shall be sent to my judicial assistant Melanie Powers at melanie.powers@ontario.ca. If I have not received any submissions within the time frames set out above, I make no order as to costs.

Wilkinson J. Released: October 13, 2023