COURT FILE NO.: 30354/08
DATE: 2013-09-13
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: IVA ALENKA PASQUALINO, Applicant
AND:
ANTONIO PASQUALINO, Respondent
BEFORE: FITZPATRICK J.
COUNSEL: Karen Dosanjh, Counsel for the Applicant
Evelyn Khon Rayson, Counsel for the Respondent
HEARD: August 27, 2013
ENDORSEMENT
[1] The Applicant, Iva Alenka Pasqualino brings a motion before me to enforce a settlement she alleges the parties entered into August 22, 2013. The basis of the alleged settlement is the acceptance by the Applicant on August 22nd of the Respondent’s written Offer to Settle dated August 9, 2013 (the “August 9th Offer”).
The Mid-Trial Mediation
[2] The Application in this matter was issued March 10, 2008. More than 5 years later the trial of the still outstanding custody and access issues in this case was commenced before Murray J. on August 19, 2013.
[3] The trial before Murray J. was suspended to allow the parties to attempt to mediate the custody/access issues before Coats J. on August 22, 2013. The parties did in fact attend for mediation before Coats J. on August 22nd and were in attendance at the Milton Courthouse thereafter for the day having settlement discussions.
[4] Arising from the mediation and settlement discussions, the Respondent’s counsel drafted a consent while counsel and the parties were at the Milton courthouse on August 22nd detailing proposed terms of settlement (the “Consent”). The unsigned Consent was then provided to the Applicant and her counsel for consideration.
[5] Counsel exchanged the following text messages following the Consent being provided to the Applicant’s counsel:
a. At 2:58 p.m. Applicant’s counsel texts “I’ve read it and need to discuss with Iva sound good”;
b. At 3:24 p.m. Applicant’s counsel texts “I’ve called another therapist just want to know if the 12 month time [proposed in the Consent] is appropriate…You can appreciate that’s a very long time and was anticipated at all”;
c. At 3:24 p.m. Applicant’s counsel texts “So I’ve called mr mills just want to satisfy everyone”;
d. At 3:25 p.m. Respondent’s counsel texts “Keep us posted”.
[6] The parties and counsel attended before Justice Coats at approximately 3:45 p.m. The parties dispute what was stated. I have the benefit of access to the court recording and have reviewed it. Based on this review, I am aware that Justice Coats asked counsel to provide her with an update and was advised as follows:
a. That the parties had been discussing matters all afternoon;
b. That counsel had talked with Dr. Goldstein [Dr. Sol Goldstein being the professional proposed by the Respondent] who had made recommendations for intervention/treatment, including that the children would be transferred to the Respondent/father’s care the next day with ongoing therapy for the father, the children and the Applicant/mother separately from the father;
c. That a settlement document [i.e. the Consent] had been drafted/exchanged based on the recommendations from Dr. Goldstein;
d. The Applicant’s counsel stated her specific concern was that Dr. Goldstein had not defined the period of time the children would be away from their mother and that counsel required time to speak to another therapist, Mr. Mills respecting Dr. Goldstein not having a defined time the children would be away from their mother. Applicant’s counsel did not raise any other concern;
On the basis of the above, Coats J. adjourned the mediation to the following morning to return before her to confirm settlement or for the trial to continue before Murray J.
[7] Counsel exchanged the following text messages following their attendance before Coats J. at the end of the day:
a. At 4:47 p.m. Applicant’s counsel texts “Would the children be at the same school?”;
b. At 4:47 p.m. Respondent’s counsel texts “Haven’t thought of that. Will have to leave that to Dr. G”;
c. At 4:48 p.m. Applicant’s counsel texts “That’s kind of important don’t you think???”;
d. At 4:48 p.m. Applicant’s counsel texts “I mean does everything change for them”;
e. At 4:48 p.m. Applicant’s counsel texts “New school new family new home”;
f. At 4:49 p.m. Applicant’s counsel texts “That’s a recipe for disaster??? Don’t you think they have lots of friends and are doing really well at school”;
g. At 4:57 p.m. Applicant’s counsel texts “We are going to accept the offer to settle”; [Emphasis added]
h. At 5:14 p.m. Respondent’s counsel texts “You are talking about the offer proposed to your client today, correct? Any offer from before that is withdrawn by virtue of today’s offer. If it is being accepted I will draft things in proper form tonight.”
i. At 7:08 p.m. Applicant’s counsel texts “It’s the offer from August 9th we didn’t have an offer today it was draft unsigned consent…I made calls and goldstein. Has done more damage to families than good and 2 known therapists believe his harsh approach without even meeting the family kids and having knowledge of medical history makes little sense to them…Above all its not definitive at all no timelines and no clarification about school etc…”; and,
j. At 7:11 p.m. Respondent’s counsel texts “We disagree with your position…It will be addressed with justice coats at 930am tomorrow.”
Acceptance of the August 9th Offer
[8] The Applicant contends that at 4:47 p.m. her counsel completed a facsimile transmission of the now signed August 9, 2013 Offer to Settle to the Respondent’s counsel. The Respondent had signed this Offer August 9, 2013 and the Applicant on August 22, 2013. In support of her contention, the Applicant relies on the facsimile transmission report from her counsel’s office stating the 5 page Offer was faxed starting at 4:56 p.m. August 22nd and completed 1 minute and 5 seconds later. The Applicant submits that a binding settlement was made upon the receipt of the accepted Offer by the Respondent’s counsel at 4:57 p.m.
[9] The Applicant also submits there is corroboration to her having accepted the August 9th Offer at 4:57 p.m. given that her counsel also at 4:57 p.m. emailed the Milton Trial Coordinator stating “Please see attached a copy of the signed Offer to Settle.” I note that the email does not state that the signed Offer had by then been served upon the Respondent’s counsel.
[10] The Respondent contends that his counsel forwarded a letter dated August 22, 2013 to the Respondent’s counsel by facsimile transmission completed at 5:05 p.m. withdrawing the August 9th Offer to Settle. In support of his contention, the Respondent relies on the facsimile transmission report from his counsel’s office stating the 1 page letter was faxed starting at 5:05 p.m. August 22nd and completed 14 seconds later. I note that the Applicant did not provide her copy of the August 22nd letter from Respondent’s counsel that presumably would have provided a stamp on the top noting when it was received at the office of Applicant’s counsel and thereby provide another temporal reference point.
[11] The Respondent further contends that his counsel did not receive the facsimile from the Applicant’s counsel forwarding the signed August 9th Offer until 5:28 p.m. In support of his contention, the Respondent relies on the facsimile transmission stamp on the top of the August 9th Offer noting it was received at the office of Respondent’s counsel at 5:28 p.m. As such, the Respondent submits that he withdrew the August 9th Offer before the Applicant accepted it.
Analysis
[12] The starting point for this discussion is to note that the August 9th Offer specifically provided that it was open for acceptance after the commencement of trial “on the term that Iva [Applicant] pay Tony’s [Respondent] cost on a partial indemnity basis from the commencement of this litigation to the date of this offer and on a full indemnity basis from the day after the date of this offer until the time of acceptance.” Accordingly, the Offer was on its face available for the Applicant to accept on August 22nd after the trial had commenced subject to payment of costs.
[13] The next stage is to consider the formal requirements of any attempted acceptance of an offer. As noted by the Respondent’s counsel, Rule 18(9) of the Family Law Rules stipulates acceptance can only be validated by serving an acceptance on the party who made the offer prior to the offer being withdrawn. Rule 18(5) of the Family Law Rules provides that an offer may be withdrawn by serving a notice of withdrawal any time before it is accepted. Clearly then, the Family Law Rules mandate service to accept an offer but do not so limit the methods available to withdraw an offer (see Zheng v. Jiang [2012] O.J. No. 5621).
[14] Rule 6(2) of the Family Law Rules provides that service can be done by faxing a copy to the party’s lawyer. Rule 6(7) states service after 4 p.m. on a day when the court office is open is effective on the next day the court office is open. Also relevant, Rule 6(8) provides that service by fax may be done only before 4 p.m. on a day when the court office is open.
[15] Even accepting the Applicant’s narrative as valid, the Applicant did not serve acceptance of the August 9th Offer until 4:57 p.m. on August 22nd. By any interpretation of the Family Law Rules, that service was not effective until August 23rd. The unchallenged evidence before me was that the Respondent’s counsel faxed a letter withdrawing the August 9th Offer that was received by the Applicant’s counsel at 5:05 p.m. on August 22nd. Pursuant to the Family Law Rules, the letter of Respondent’s counsel effectively withdrew the August 9th Offer at 5:05 p.m. on August 22nd prior to effective service of the Applicant’s acceptance on August 23rd. On this basis, the Applicant’s motion to enforce settlement must fail.
[16] The Respondent argued alternatively that if I found the Family Law Rules did not preclude the Applicant accepting the August 9th Offer then the Consent implicitly withdrew that Offer. The fundamental argument advanced by the Respondent was that the Consent was a second written offer proposing a less favourable resolution to the Applicant than the August 9th Offer thereby constituting an implicit withdrawal. The Respondent provided what appears to be established caselaw (see Zheng v. Jiang [2012] O.J. No. 5621, York North Condominium Corp. No. 5 v. Van Horne Clipper Properties Ltd. (1989), 1989 4375 (ON CA), 70 O.R. (2d) 317 (C.A.)) in support of this argument.
[17] The Consent called for the children immediately transferring to the care of the Respondent/father to commence intervention therapy whereas the August 9th Offer had the children remaining in the care of the Applicant/mother. Clearly, the Consent was a substantially less favourable proposal to the Applicant/mother in the context of a custody/access dispute.
[18] However, the Consent does not qualify as a written offer given that Rule 18(4) of the Family Law Rules mandates that an offer must be signed by both the party and counsel. The Consent here was not signed by either the Respondent or his counsel. It would be unfair to demand strict compliance with the Family Law Rules by the Applicant and not insist on the same for the Respondent. Given the Consent was not a second offer in writing it could not implicitly withdraw the August 9th Offer. Had it been necessary to determine this motion, I would not have accepted the Respondent’s argument on this point.
[19] The Respondent also argued alternatively that if I found the there was an otherwise binding settlement here then I should use my discretion not to enforce that settlement.
[20] Both counsel conceded that I had the discretion not to enforce the settlement even if I had found that the Applicant had effectively accepted the August 9th Offer. Both counsel also conceded I should consider the best interests of the children when considering whether to exercise my discretion not to enforce. This is a case where that discretion is appropriate and, if had been necessary, I would have declined to enforce the settlement on this basis.
[21] The surrounding circumstances here are instructive. The parties have been engaged in contested litigation for 5 years unable to resolve their custody/access issues. The parties commenced a trial of the custody/access issues. The parties then agreed to interrupt the trial to invest a day mediating the custody/access issues with the assistance of Justice Coats. The parties enlisted the assistance of Dr. Goldstein to provide recommendations that were then used as the framework for the Consent. The parties ended the court day discussing the framework presented by Dr. Goldstein with the only issue raised being that of Applicant’s counsel that Dr. Goldstein had not defined the period of time the children would be away from their mother. Applicant’s counsel simply sought time to consult another therapist respecting Dr. Goldstein not having a defined time the children would be away from their mother. No other issues were raised respecting the proposed settlement set forth in the Consent. There was no mention of the August 9th Offer whatsoever prior to the text from Applicant’s counsel at 7:08 p.m. on August 22nd.
[22] In the above noted circumstances, it was not reasonable or realistic for the Applicant to believe that the August 9th Offer was in the Respondent’s mind as being open for acceptance. The Applicant was well aware that the only proposal being considered by the end of the court day on August 22nd was the Consent incorporating the recommendations provided by Dr. Goldstein. The August 9th Offer was not part of the discussions or otherwise in contemplation. There is no doubt that Respondent’s counsel should have withdrawn the August 9th Offer when presenting the Consent or immediately thereafter. That was a careless oversight that the Applicant attempted to take advantage of. However, it would be unjust and not in the best interests of the children to enforce a settlement on terms so departed from what the parties themselves had distilled by the close of court on August 22nd. (see Estate of Dr. Saul Fox v. Greg Stelmaszyk etal, (2003) 36922 (ONCA) and Roth-Millar v. Millar, 2001 28257 (ON SC), [2001] 23 R.F.L. (5th) 345 (ONSCJ)).
[23] Justice and the best interests of the children demand that any settlement be founded upon both parents fully appreciating and having common minds respecting the terms. How else could a settlement have any prospect for success? The children deserve a settlement concluded where both parents embrace the terms or, failing that, a decision by the court on full evidence, including the insight of any relevant experts. The parents here were not of a common mind respecting the August 9th Offer when the Applicant attempted to accept it. Custody and access issues are simply too important to enforce a settlement arising from an oversight by counsel. Had it been necessary, I would have exercised my discretion not to enforce the August 9th Offer as a settlement in this case.
Conclusion
[24] In conclusion, the Applicant’s motion to enforce settlement is dismissed.
[25] The trial of this matter will continue before Murray J. resuming Monday, September 16, 2013 at 10:00 a.m.
[26] There shall be no costs of this motion. Although the Respondent was the successful party, this motion would not have been necessary but for the failure of Respondent’s counsel to provide a timely withdrawal of the August 9th Offer.
FITZPATRICK J.
Date: September 13, 2013