CITATION: Bunker v. Curriveau, 2007 ONCA 35

DATE: 20070123

DOCKET: C45562

COURT OF APPEAL FOR ONTARIO

RE:

COREY BUNKER (Applicant/Respondent in Appeal) – and – KATHLEEN SUSAN CURRIVEAU (Respondent/Appellant)

BEFORE:

MACPHERSON, SHARPE and JURIANSZ JJ.A.

COUNSEL:

Katrina A. Prystupa

for the appellant

Bruce Gilpin

for the respondent

HEARD:

January 18, 2007

On appeal from the judgment of Justice Bernard J. Manton of the Superior Court of Justice dated May 15, 2006.

E N D O R S E M E N T

[1] The order under appeal dated May 15, 2006 set aside a final order made on consent on the basis of a purported settlement of all issues in matrimonial litigation, including custody and access, and ordered that the parties proceed to trial.

[2] The order is a final one because it disposed of the appellant’s substantive right to a determination of all issues on the basis of the claimed settlement: Bachman Trust Co. v. Singer, [2005] O.J. No. 612 (Ont. Div. Ct.).

[3] A motion judge possesses the same residual power described in Scherer v. Paletta, 1966 CanLII 286 (ON CA), [1966] 2 O.R. 524 to refuse to give effect to a settlement agreement reached between counsel as does a judge before whom such a settlement is first placed. It is a discretion that must be exercised with great care. We are of the view that the necessary foundation for its exercise was lacking in this case. The respondent’s affidavit upon which the judge concluded he had not consented to the settlement was feeble at best, the respondent failed to provide an adequate explanation for the 5 1/2 month delay in bringing his motion, the motion was served on an emergency basis while the appellant was away on a business trip, and both parties were unrepresented.

[4] The respondent, in his supporting affidavit, deposed only that his solicitor did not consult him in regard to “the final document” submitted to the court. This was the draft order on consent which the appellant approved as to form and content that was submitted to the court for signature on November 4, 2005. Pointedly, the respondent did not swear that he had no knowledge of his solicitor’s letters offering to settle, that these letters had been sent without his approval, or that he had in any way limited his solicitor’s authority.

[5] Though the respondent learned on November 9, 2005 that the draft order had been submitted to the court and the order had been signed on November 10, 2005, the respondent did not move to set it aside until April 24, 2006. He addressed the delay only in vague and general terms. In the interim he never notified the appellant the consent order had been obtained without authority. Rather, during the interim he exercised access in accordance with the order’s terms.

[6] The appellant’s affidavit indicated that the respondent had served his motion on April 24, 2006 on short notice knowing that she was away on business from April 24-27.

[7] In these circumstances, and given the serious aspersion cast on the respondent’s solicitor, the motion judge required more definitive information as to the respondent’s solicitor’s instructions and actions to justify the exercise of his discretion. The meagre evidence before the court did not provide an adequate basis for setting aside the final order.

[8] The appeal is allowed and the order is set aside without prejudice to the respondent renewing his motion, if he so wishes, on better and more complete material. Costs are fixed in favour of the appellant in the amount of $10,000 inclusive of disbursements and GST.

“J.C. MacPerson J.A.”

“Robert J. Sharpe J.A.”

“R.G. Juriansz J.A.”