SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FS-08-62508-01
DATE: 20140612
RE: DIANA RAMLOCHAN – and – ORAL RAMLOCHAN
BEFORE: F. Dawson J.
COUNSEL:
Paul Buttigieg, for the Applicant
Anita T. Kain, for the Respondent
HEARD: May 15, 2014
E N D O R S E M E N T
[1] The applicant wife and the respondent husband began living together in 1987 and married in 1997. They have three children together. They separated in December 2007 and the applicant commenced family law proceedings in 2008. The litigation became protracted. However, in 2011 the parties agreed to submit all outstanding issues to binding mediation/arbitration. This led to final minutes of settlement. The terms of the settlement were further formalized in an order of Lemon J. dated August 18, 2011.
[2] There were many terms to the settlement and many paragraphs in the order. Four issues have arisen in connection with the order. First, there remains a controversy relating to the completion of an RRSP rollover from the respondent to the applicant. The minutes and the order of Lemon J. refer to an amount of $170,000. At around the time the documentation to effect the rollover was signed the financial markets were in decline and by the time the securities in question were transferred into the hands of the applicant they had lost over $30,000 in value. There is a dispute about just when the required documents were signed and about which party bears the loss due to the decline in the portfolio’s value.
[3] The second issue relates to orthodontic expenses for one of the children. While the respondent acknowledges he is responsible for s. 7 expenses after a specified date, he made a lump sum payment to cover all child support and s. 7 expenses prior to that date. He also maintains that he was to be consulted about such medical care and was not. Consequently, there is a dispute as to how much he should be paying in relation to the orthodontic expenses.
[4] The third issue relates to the designation of the applicant as the irrevocable beneficiary of a $1.5 million life insurance policy on the respondent’s life.
[5] The fourth issue, which is central to the matters that have arisen for decision on this motion, relates to a large building lot in Trinidad and Tobago. The deed to the property indicates that it was acquired by the respondent at a cost of $750,000. It is a term of the original settlement and Lemon J.’s order that the respondent is to have title to the property placed into the names of both himself and the applicant as tenants-in-common. This has not been done.
[6] The Tobago property was acquired from a man who was subsequently murdered. His wife was also murdered. The material filed indicates that the deceased vendor has since been found to have been engaged in fraudulent land sales by selling property he had no right to sell. There is now a question as to whether the respondent has good title to the property in question. The respondent also maintains that he has been afraid to travel to Tobago to effect the required transfer of title because he is known to have had a personal and business relationship with the deceased vendor. He is concerned he may be targeted by those who are upset about that man’s fraudulent dealings.
[7] These unresolved matters led the applicant to bring a contempt motion to enforce the relevant terms of the final order of Lemon J. The applicant also seeks to enforce an acceleration clause provided for in the order which is triggered by default.
[8] In response to the contempt motion the respondent has taken certain steps. He maintains that he always intended to pay what he was required to pay by way of s. 7 expenses but that the applicant has not until recently provided the relevant information he is entitled to. The insurance policy issue has been or is being taken care of. The respondent points to a previous misunderstanding between himself and the insurance company. He maintains that there is a legitimate issue to be litigated or settled between the parties about how the loss in the RRSP portfolio should be apportioned between them. He has now retained a solicitor in Trinidad and Tobago to resolve outstanding matters concerning the property there. He points to the fact that he has complied with all other aspects of the order, never missed a support payment, and submits that contempt has not been established.
[9] As the date for the argument of the contempt motion approached negotiations to resolve the outstanding issues were underway between counsel, and affidavit material was being exchanged in preparation for the motion.
[10] On March 24, 2014 the applicant’s counsel served the respondent with an offer to settle “all of her claims in her Notice of Contempt Motion returnable March 28, 2014”. That offer provided as follows:
(a) Within 30 days, the Respondent/Husband, Oral Ramlochan (“Oral”), shall pay to Diana, the sum of $5,490.20, in full and final satisfaction of Diana’s claim for a contribution from Oral for the child’s orthodontic expenses.
(b) Within 30 days, and at Oral’s election, he shall pay to Diana the sum of $28,030.00 in net dollars (16% notional tax discount), or else the sum of $33,369.07 shall be paid to Diana pursuant to a tax-free roll-over RRSP (in which case Oral shall deliver to Diana’s counsel a properly completed Form T2220 form within 7 days).
(c) Within 30 days, Oral shall deliver satisfactory proof to Diana’s lawyer that he has named her as the sole irrevocable beneficiary of his $1.5 million life insurance policy as required by Paragraph 36 of the Final Order of Justice Lemon dated August 18, 2011.
(d) All other claims in Diana’s Notice of Contempt Motion dated January 31, 2014, are hereby dismissed.
[11] Clearly, the offer makes no mention of the Tobago property. It is the respondent’s position that it is included in the “all other claims” referred to in clause (d).
[12] Counsel for both the applicant and the respondent (not counsel who argued this motion) engaged in further settlement discussions on March 25. The respondent accepted the applicant’s offer to settle on March 26 by sending a fax at 11:49 a.m.
[13] It soon became apparent that there was a dispute about just what had been settled. While there is substantial agreement between the lawyers who were handling the matter at the time about what happened prior to the acceptance of the offer, they have filed affidavits on the motion which conflict concerning what they said to each other during a conversation on March 28, 2014, two days after the offer was accepted.
[14] Counsel who was then acting for the respondent swears that after acceptance of the settlement counsel who was then acting for the applicant telephoned, said he “had a problem” and asked if the respondent would still be willing to go through with the transfer of the Tobago property. It is common ground that he was told the respondent would not do that as the matter had been settled in accordance with a clear offer and acceptance that made no reference to the completion of the transfer of the Tobago property.
[15] Counsel who was then acting for the applicant has provided an affidavit in which he acknowledges the telephone call but denies saying that he “had a problem”. He deposes that he said that he expected the transfer of the Tobago property to be completed because that had always been required by the terms of the final order of Lemon J. He swears he advised the respondent’s counsel that he would instruct the applicant to institute a further contempt proceeding on the original order if the transfer of the property was not completed.
[16] The respondent has now brought a cross-motion seeking enforcement of the settlement and dismissal of the applicant’s contempt motion. Although the respondent submits that the practical effect of the settlement is a variation of the order of Lemon J., and some argument was addressed to that question at my request when the motion was heard, I observe that the respondent has not moved to vary the order and the question of whether the settlement had that effect is not before me.
[17] I also note that the applicant approached the motion before me as a contempt motion going forward. However, virtually all of the submissions of counsel on both sides were directed to the issue raised in the cross-motion concerning whether the settlement should be enforced.
[18] At this point I will refer to certain additional evidence and make findings of fact which I conclude are of importance to the resolution of this matter. These facts provide the context to the applicant’s written offer to settle, which, as required by the Family Law Rules, was signed by the applicant personally, as well as by her counsel. The applicant has provided an affidavit dated April 7, 2014 which refers to these factual matters. These facts are also determinable from the previously filed affidavits of both parties together with the attached exhibits. I will refer to these factual matters in chronological order.
[19] Well before the written offer to settle was served the respondent swore an affidavit dated February 28, 2014. Paragraphs 46 to 55 of that affidavit address the issues surrounding the transfer of the Tobago property. In para. 52 the respondent states that he has been in touch with the Registrar General’s Department in Trinidad and Tobago to see if he can effect the transfer of the Tobago property from Canada. At para. 53 he deposed that he had retained counsel in Trinidad and Tobago to assist him with issues surrounding his ownership interests, which were now being questioned by the government of Trinidad and Tobago, and to assist with the transfer of one-half of whatever interest he had in the land into the name of the applicant.
[20] Exhibit I to the respondent’s February 28 affidavit is a letter from Ms. Singh-Zorro, Attorney-at-Law, Trinidad and Tobago, sent directly to the applicant’s counsel. In that letter Ms. Singh-Zorro confirmed her retainer and stated that she had been instructed “specifically to comply with the above mentioned Clause 51 of the captioned Final Court Order”. This is a reference to the clause of the order of Lemon J. requiring the transfer of title to the Tobago property. In this letter, which the respondent arranged to have sent not to himself but to his wife’s lawyer, Ms. Singh-Zorro said “…Mr. Ramlochan has advised he wishes to resolve this matter without further intervention by the Court”. Ms. Singh-Zorro then sets out what she requires to complete the transfer, including receipt of the applicant’s “National Identification and Passports”.
[21] Next, I would note that on the same day as the applicant’s written offer to settle was served, March 24, 2014, the applicant swore a further affidavit. That affidavit is stamped “Filed” in this court on March 25, 2014. Clearly it was served and filed prior to the written acceptance of the settlement on March 26. Paragraphs 11-14 of that affidavit address the Tobago property. All four paragraphs suggest the applicant was expecting the respondent to follow through with the transfer of the Tobago property. In para. 14 the applicant refers to the letter from Ms. Singh-Zorro and says that her birth documentation and passport will be provided by March 28, 2014. In her subsequent affidavit of April 7, 2014 the applicant deposes that her counsel forwarded that documentation to counsel for the respondent on March 31, 2014 as she could not get to her lawyer’s office on March 28.
[22] It is also common ground between counsel who were involved in this matter at the time, that when they spoke on March 25, 2014, the day after the settlement offer was sent and the day before it was accepted, the Tobago property came up in the conversation. The applicant’s counsel swears he mentioned the property in the context of it being “off the list” because it was finally being dealt with by the respondent. Counsel who was acting for the respondent at the time swears in her affidavit that the Tobago property was referred to briefly in the context of the respondent having already taken some steps to purge any contempt.
[23] Taken together, the facts I have referred to in the last few paragraphs are significant. In my view, they show that, although there was a written agreement between the parties which appears to be clear and unambiguous on its face, there is good reason to conclude that the parties were not ad idem because the applicant made the offer in the mistaken understanding that the respondent had already undertaken to promptly attend to the transfer of the Tobago property. In addition, I find the circumstances are such that a reasonable person in the position of the respondent and his counsel would have been aware of that, at least to the extent that equitable principles required them to make some inquiry before they snapped up the offer. The telephone conversation on March 25, 2014 provided the perfect opportunity for respondent’s counsel to do that. Fairness required it given all of the circumstances I have referred to.
[24] In my view the evidence establishes on a balance of probabilities that if there is a concluded contract it was the product of a unilateral mistake by the applicant which the respondent was either aware of or turned a blind eye to. Certainly, a reasonable person in the circumstances would have known the applicant probably thought the respondent was going to carry through with the plans conveyed to the applicant to transfer the Tobago property. The preconditions to the equitable remedy of rescission are satisfied in these circumstances: see the analysis of McLachlin C.J.B.C. (as she then was) in First City Capital Ltd. et al. v. British Columbia Building Corp., 1989 B.C.J. No. 130, 43 B.L.R. 29 (B.C.S.C.), at paras. 27‑31.
[25] The situation may also be viewed as one in which no agreement was reached as the parties were not ad idem: Dofasco Inc. v. National Steel Car Ltd., 2012 ONSC 6434, [2012] O.J. No. 5388. However, I prefer to rest my decision on unilateral mistake having regard to all of the evidence.
[26] On either view of the matter, I decline to enforce the settlement. Rule 18(13) of the Family Law Rules, O.Reg. 439/07, is the basis for the respondent’s cross-motion to enforce the settlement. That rule vests the court with the same discretion to enforce or decline to enforce a settlement that it has under Rule 49.09 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194: Quesnel v. Nadon-Quesnel, 2001 28259 (ON SC), [2001] O.J. No. 5476, 24 R.F.L. (5th) 89 (S.C.J.).
[27] It has been recognized that, quite apart from the equitable remedy of rescission, evidence of mistake is an important consideration in the exercise of the court’s discretion as to whether to enforce a settlement: Milos v. Zagras, 1998 7119 (ON CA), [1998] O.J. No. 812, 38 O.R. (3d) 218 (C.A.), at paras. 15‑19; Fox Estate v. Stelmaszk, 2003 36922 (ON CA), [2003] O.J. No. 2619, 65 O.R. (3d) 846 (C.A.), at para. 11.
[28] Before leaving this aspect of the matter I acknowledge that very little was said about mistake during oral submissions. That is because counsel who appeared for the applicant chose not to put that issue front and centre. However, the issue of unilateral mistake is clearly raised in the affidavit material filed by the applicant. The respondent was well aware of the issue as demonstrated by the factum and book of authorities filed on his behalf which fully address that issue.
[29] The cross-motion to enforce the settlement is dismissed. If the parties are unable to agree on costs they may exchange written submissions and file them with me within 15 days.
[30] The contempt motion, however, was not really argued as the focus was on the cross-motion to enforce the settlement.
[31] The contempt motion is adjourned to a date to be arranged with the trial co-ordinator. I am not seized of that matter.
F. Dawson J.
DATE: June 12, 2014
COURT FILE NO.: FS-08-62508-01
DATE: 20140612
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: DIANA RAMLOCHAN – and – ORAL RAMLOCHAN
BEFORE: DAWSON J.
COUNSEL: Paul Buttigieg, for the Applicant
Anita T. Kain, for the Respondent
ENDORSEMENT
F. Dawson J.
DATE: June 12, 2014