SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS-12,423/12
DATE: 2013-06-05

RE: Shanan Colleen Fournier, Applicant

AND:

Kevin Douglas Wayne Steeves, Respondent

BEFORE: The Honourable Madam Justice P.C. Hennessy

COUNSEL:
Matti E. Mottonen, counsel for the Plaintiff

Jerome Gardner, counsel for the Respondent

HEARD: May 23, 2013

ENDORSEMENT

[1] The parties do not agree on the terms of a settlement.

[2] Mr. Steeves brought this motion for a Final Order based on the exchange of correspondence between counsel. Ms. Fournier brought a subsequent motion for an order requiring Mr. Steeves to designate the applicant as an irrevocable beneficiary under the terms of his group life insurance policy. Both motions were argued on this day.

[3] Counsel negotiated a settlement through correspondence from February 11, 2013 to April 15, 2013. When counsel for Ms. Fournier prepared the draft Minutes of Settlement he included a term dealing with the group life insurance policy. Mr. Steeves objected to the inclusion of this term. He takes the position that the term dealing with his group life insurance policy was not part of the negotiated settlement. The issue is whether the Minutes of Settlement, absent the term dealing with the group life insurance policy, forms the settlement reached by counsel.

[4] There was no mention, in the letters exchanged between counsel, of whether the wife would be designated as a beneficiary of the husband’s group life insurance policy. The issue of the wife’s designation as beneficiary of the group life insurance policy had been one of the claims for relief set out in the Application. It was also a term of relief sought in a motion for interim relief which was never argued or resolved.

[5] Both parties were fully represented throughout the proceedings by competent counsel. Both counsel had authority to settle on behalf of their client. The issue of authority was not raised on this motion.

[6] Counsel agreed through correspondence on the following terms:

• Claim for divorce would be withdrawn;

• Spousal support was payable to the applicant;

• Retroactive spousal support for Ms. Fournier;

• Triggering events for material change;

• Spousal Support review period;

• Mr. Steeves was not entitled to seek any retroactive variation of spousal support based on Ms. Fournier’s settlement of Accident Benefit claim;

• Coverage of the applicant under the respondent’s health and medical benefits;

• Charge on the estate to secure the spousal support;

• Matrimonial home: exclusive possession, transfer of interest, financing, obligation for payment of first mortgage, designation as principle residence;

• Proceeds of property insurance claim;

• Equalization payment to Ms. Fournier;

• Possession of assets in hands of each spouse;

• Releases.

[7] Mr. Steeves argued that the correspondence forms the agreement between the parties, as evidenced by statements in the following letters:

• Mr. Gardner March 22, 2013: I think we are virtually settled and, if so, can you please advise and send me draft Minutes of Settlement.

• Mr. Mottonen March 25, 2013: I am of the assumption that we can now settle this matter as outlined in the exchange of correspondence. Please advise as to whether your client is prepared to agree to my client’s response to Mr. Steeves’ counterproposal.

• Handwritten annotation on the above noted letter of March 25th: “I agree to the terms set out herein.” Signed Kevin Steeves.

[8] Following this correspondence, Mr. Mottonen sent out the Draft Minutes of Settlement on April 15, 2013 containing a term that required Mr. Steeves to designate the applicant as an irrevocable beneficiary under the terms of his group life insurance policy.

[9] There was nothing before me to support the proposition that most family law counsel would expect that the spouse receiving support have her interest secured by a workplace group life insurance policy as an automatic term. I would expect counsel to include a claim for such in their initial application, but once settlement discussions begin, that would be an issue to be covered and negotiated.

[10] There is no evidence that Mr. Steeves knew that the group life insurance policy was an outstanding issue when he signed off on the agreement. Mr. Steeves had a child from a previous marriage that he wished to designate as the beneficiary of his group life insurance policy.

[11] Counsel for Mr. Steeves acknowledges and advised Mr. Steeves that ‘should the estate not have sufficient funds to pay any ongoing support obligation at the time of his death, then Ms. Fournier would have a claim pursuant to the Succession Law Reform Act against the group life insurance policy.’

[12] I find that the correspondence did amount to a settlement between the parties, which was reached on March 25, 2013. The terms were clear and unequivocal. They were comprehensive. The lawyers exchanged a total of six letters before they came to their agreement. The letters specifically address each of the terms. There was give and take and the adjustment of positions. There was no suggestion that the issue of Mr. Steeves’ group life insurance policy was still on the table or the subject of negotiation. There was a term covering the statutory requirement that the spousal support obligation be secured by a charge against the estate.

[13] In Bogue v. Bogue 1999 3284 (ON CA), [1999] 46 O.R. (3d) 1 (OCA) Rosenberg J.A. confirmed that an agreement can be reached ‘when the parties agree on all of the essential provisions to be incorporated in a formal document with the intention that their agreement shall thereupon becoming binding, they will have fulfilled all the requisites for the formation of a contract.’

[14] I am of the view that counsel here, acting with authority, on behalf of clients who did not suffer any disabilities, agreed on all of the essential terms. It may have been inadvertence on the part of counsel for Ms. Fournier to leave out of the correspondence any discussion of the group life insurance policy. However, such inadvertence does not require this court to intervene. (Scherer v. Paletta 1966 286 (ON CA), [1966] 2 O.R. 524 at 527) quoted with approval by Rosenberg JA in Bogue.

[15] The motion is granted and there shall be an Order in terms of paragraph one of the motion.

[16] The motion brought by Ms. Fournier seeks an order requiring Mr. Steeves to designate Ms. Fournier as a beneficiary under the group life insurance policy. There is no authority under s. 34 of the Family Law Act for this court to add a term to a final order.

Madam Justice P.C. Hennessy

Date: June 5, 2013