SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FS-12-3777296
DATE: 20140716
RE: irina halpern
Applicant
- and -
ludwig emanuel halpern
Respondent
BEFORE: Justice S. M. Stevenson
COUNSEL: Ilana Zylberman and Sheila Gibb, for the Applicant
Gary Joseph and Elissa Gamus, for the Respondent
DATE HEARD: July 8, 2014
E N D O R S E M E N T
Introduction
[1] The respondent moves for judgment pursuant to Rule 16 of the Family Law Rules, O. Reg. 114/99 (the "FLRs"). He submits that a settlement was reached between the parties and he seeks to confirm that settlement. The respondent also seeks costs.
[2] The applicant opposes the respondent's motion. She submits that no settlement was reached between the parties and asks that the respondent's motion be dismissed with costs.
Background
[3] The parties were married on January 10, 1999. They separated on October 15, 2011. The parties have one child together, Hannah Emily Halpern, ("Hannah"), born December 24, 2001. The applicant has one child from a previous marriage who is now independent while the respondent has two daughters from a previous marriage who are also both independent. The respondent also has a daughter from a previous relationship, Samantha Lindsay Robyn Zurin ("Samantha"), born August 6, 1992, who is 21 years of age. Samantha was attending Queens University but has recently experienced significant health problems. The respondent has made a claim that the applicant stands in loco parentis to Samantha.
[4] The applicant commenced an Application on March 30, 2012 seeking inter alia custody of Hannah, child support and spousal support. The applicant also seeks an order declaring that the Marriage Contract entered into between the parties and dated December 31, 1998 is terminated as a result of repudiation on the part of the respondent accepted by the applicant, or in the alternative, she seeks to set it aside based on a number of grounds. The applicant seeks an equalization of net family property. The respondent disputes these claims and make claims of his own in his Answer dated May 10, 2012 including custody, time-sharing provisions, payment of child support in accordance with a shared parenting arrangement and an order declaring that the Marriage Contract is valid. The parties also disagree on the date of separation as set out in their pleadings.
[5] The parties entered into a consent order that addressed the issues of residence, child support and spousal support. The parties also participated in a custody and access assessment with respect to Hannah. There have been attendances at a case conference and a settlement conference during the course of litigation, but most issues continue to be in dispute.
[6] There are presently other outstanding motions before the Court, all of which were returnable at the same time as this motion for judgment. These include a motion for financial disclosure and interim disbursements brought by the applicant and a motion brought by the respondent seeking bifurcation relating to the setting aside of the Marriage Contract and the date of separation. The parties agreed prior to this motion that only the motion for judgment would proceed before me.
The Respondent's Position
[7] It is agreed that the parties attended a settlement meeting on May 7, 2014. At the settlement meeting, there were three lawyers in attendance for the applicant and two lawyers in attendance for the respondent. Additionally, the respondent's expert and his associate also attended. At one point during the negotiations, there were fewer people in the room where the negotiations had been ongoing. The applicant was not in the room during this part of the meeting, but the respondent was along with his matrimonial counsel, Ms. Gamus, and his civil litigation counsel, Mr. Rapoport. Mr. Epstein, counsel for the applicant, was also in attendance. It is at this point in the meeting that the respondent deposes that Mr. Epstein presented an oral offer to the respondent and gave the respondent seven days to respond.
[8] The respondent deposes that between May 7, 2014 to May 14, 2014 there was no communication between counsel and there were no changes sought by Mr. Epstein on behalf of the applicant. The respondent further deposes that Ms. Gamus sent a letter on May 14, 2014 accepting the oral offer made by Mr. Epstein. He deposes that there was only one minor change set out in Ms. Gamus's letter which was with respect to the review date for child support prior to Hannah commencing her post-secondary education.
[9] The respondent deposes that he did not hear further from the applicant's counsel until May 20, 2014 when Mr. Epstein indicated in an e-mail that there could be no deal unless it was in writing. On May 27, 2014, the respondent deposes that Mr. Epstein sent a letter to his counsel. He further deposes that Mr. Epstein in this letter changed the entire terms of the agreement and it was apparent to the respondent that the applicant was attempting to resile from the agreement.
[10] Counsel for the respondent submits that the applicant, on a motion for summary judgment, cannot rest on mere allegations or denials as set out in Rule 16(4.1) of the Family Law Rules, O. Reg. 114/99, but must set out in affidavit or other evidence, specific facts showing that there is a genuine issue for trial. He further refers the Court to Rule 16(5) which states that if a party's evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party. While counsel acknowledges that the term “adverse inference” is not used, he submits that a court may draw conclusions unfavourable to the applicant as a result of the fact that Mr. Epstein, who he submits has personal knowledge, has not sworn an affidavit for this motion. In contrast, while acknowledging that Ms. Gamus, matrimonial counsel for the respondent who was present during the meeting, has also not sworn an affidavit, he points to the fact that the respondent, as well as his civil litigation counsel, Mr. Rapoport, both have sworn two affidavits for this motion. He also submits that the applicant was not in the room at the time that Mr. Epstein made the offer on her behalf and as such, she would not have personal knowledge of what took place during what he terms the "mini-meeting".
[11] Counsel for the respondent relies on the Ontario Court of Appeal decision of Bogue v. Bogue, 1999 CarswellOnt 3619 (C.A.), in support of his position that the court will recognize an oral settlement and that there was an agreement with respect to the essential terms. He submits that the facts in Bogue are analogous to what happened in the case before the Court. He further relies on the decisions of McRae v. Simpson, 2002 CarswellOnt 4425 (S.C.J.), Perrin v. Cara Operations Ltd., 2004 CarswellOnt 1539 (S.C.J.) and Vollmer v. Jones, 2007 7999 (ON SC), 2007 CarswellOnt 1524 (S.C.J.) in support of his position that oral agreements have been upheld by the courts and that counsel can bind their clients.
[12] Counsel for the respondent relies on Mr. Rapoport's second affidavit, sworn July 3, 2014, (which counsel for the applicant submits should not be considered by the Court as it raises issues that Mr. Rapoport could have addressed in his first affidavit filed and therefore would have been responded to by the applicant) wherein he deposes that he took notes contemporaneously with Mr. Epstein's offer and that Mr. Epstein's letter of May 27, 2014 substantially changes the financial terms set out in his oral offer of May 7, 2014. Counsel argues that Mr. Epstein had an opportunity to take issue with Mr. Rapoport's notes by swearing an affidavit but did not do so. He further submits that as deposed by Mr. Rapoport, the only issue left after the mini-meeting was access. He contends that Mr. Rapoport's affidavit is not disputed and he was not cross-examined on his affidavit. Counsel submits that as a result, the Court must accept what Mr. Rapoport says to be true and he asks the Court to draw unfavourable conclusions.
[13] Counsel for the respondent also argues that the minor variance relating to a review of child support set out in Ms. Gamus's letter, dated May 14, 2014, is not an essential term of the settlement as child support would be reviewed in any event at the age of 18 and this was only a change with respect to when the review would take place. Counsel submits that it is clear from Mr. Epstein's letter of May 27, 2014, that the applicant is attempting to renegotiate the deal that was made and to resile from the agreement. He argues that the applicant has not argued mistake and that the agreement stands.
[14] Counsel for the respondent points out that there are two sworn affidavits from the respondent, who was present at the mini-meeting, and two sworn affidavits from Mr. Rapoport, who was also present at the mini-meeting. He contends that the applicant's affidavit sworn June 27, 2014 has been carefully drafted and that the applicant did not express at the meeting, when all parties were present along with counsel, that she would never make a deal without all issues being resolved. Further, Mr. Rapoport deposes that Mr. Epstein did not state that there would only be a deal if all issues were settled. The respondent relies on the decision of Lundrigan v. Andrews, 2009 CarswellOnt 883 (C.A.), in support of his position that it is reasonable to assume that to a hypothetical onlooker, Mr. Rapoport would be viewed as an objective observer.
[15] The respondent seeks judgment consistent with the terms of Ms. Gamus's letter of May 14, 2014. He indicates that the issue of access was not on the table at the time and that the applicant continues to have all rights with respect to pursuing any claims regarding access. Counsel also invites the Court to compare the letters of May 14, 2014 and May 27, 2014. He submits that the applicant clearly accepted many of the terms as set out in their letter and asks the Court to grant partial judgment if the Court is not inclined to grant full judgment. Counsel for the respondent argues that the essential terms of the offer have been accepted and if this Court rejects the respondent's argument that there is a full settlement, the May 14, 2014 letter represents an offer and the May 27, 2014 letter represents an acceptance on these partial issues.
The Applicant's Position
[16] The applicant deposes that she was very clear in her position that there could only be a settlement if all of the issues were settled and a comprehensive settlement had been reached. She further deposes that the respondent has been unreasonable and difficult and this is the reason why every issue needs to be settled at the same time. She indicates that the respondent would take her to trial on the remaining issues if only some were settled and she cannot afford a trial. The applicant further deposes that correspondence subsequent to the settlement meeting by counsel and by the respondent shows that all parties were on the same page and no settlement had been reached. She further contends that even the respondent's purported acceptance did not mirror the terms set out by Mr. Epstein, but rather changed various provisions.
[17] The applicant deposes that the respondent has been attempting to increase her costs and intimidate her. She further deposes that the respondent wants the applicant's law firm off the record so that she will be without counsel. This is all disputed by the respondent who indicates that the applicant has been the aggressor in the litigation and that he originally spoke with Mr. Epstein at the beginning of his separation and he met with Mr. Epstein's colleague. Counsel for the respondent indicates that if the respondent wanted Epstein Cole to be removed from the record, the respondent would have done so at the beginning of the matter.
[18] Counsel for the applicant submits that it is obvious from the record that the parties never reached a settlement. In her factum and in her oral submissions, counsel submits that in determining whether a settlement has been reached the Court needs to make three distinct lines of inquiry. She submits that those lines of inquiry are set out in the two Ontario Court of Appeal decisions: Lundrigan v. Andrews 2009 CarswellOnt 883 (C.A.) at paras. 4-12; Ward v. Ward, 2011 CarswellOnt 178 (C.A.) at para. 55 and the decision of this Court by Mesbur J. in Cole v. Cole, 2011 CarswellOnt 8459 (S.C.J.) at para. 55. Those lines of inquiry, she submits, are as follows:
(1) Was there a "meeting of the minds" or consensus ad idem, that was manifest to the reasonable observer? She contends that this requires a clear intention by both parties that there is a binding agreement;
(2) Was there consensus on all of the essential terms of the agreement? If a term material to the parties is not resolved, or is left vague and imprecise without the tools to refine it, the agreement is illusory and the parties are simply asking the court to make an agreement for them; and
(3) Did the parties make the agreement conditional upon any other term, or subject to execution of a formal contract? An agreement is not final or binding if it is merely an agreement to later agree on essential provisions, or to defer the binding nature of the agreement until the parties execute the proposed subsequent formal contract.
[19] Counsel for the applicant contends that none of the three conditions were met. She argues that there was no "meeting of the minds" manifest to the reasonable observer, there were no comprehensive offers extended or accepted, and even partial offers and counter offers were not accepted in full without revision. She further contends that not all of the essential terms were agreed upon and that any agreement was conditional upon an agreement of all of the issues and the drafting of the separation agreement, which she submits was made clear by the applicant's counsel. As indicated, counsel submits that this is all apparent upon a review of the correspondence between counsel and from the respondent.
Discussion
[20] Mesbur J. in Cole v. Cole, supra, at paras. 36 to 41 provides a helpful analysis of the law relevant to this issue of determining whether or not a settlement has been reached:
¶36 The fundamental legal issue on this motion is whether the Proposal for Settlement constitutes a binding agreement. The Ontario Court of Appeal in Bawitko Investments Ltd. v. Kernels Popcorn Ltd. held that at common law, an agreement is binding if it contains all essential terms. This is so even if the parties also agree that those terms will later be recorded in a more formal document along with the usual terms ancillary to that type of agreement. However, an agreement is not final or binding if it is merely an agreement to later agree on essential provision, or to defer the binding nature of the agreement until the parties execute the proposed subsequent formal contract.
¶37 However, Bawitko goes on to say that parties
…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 … However, when the original contract is incomplete because essential provisions intended to govern the contractual relationship have not been settled or agreed upon … or the understanding or intention of the parties, even if there is no uncertainty as to the terms of their agreement, is that their legal obligations are to be deferred until a formal contract has been approved and executed, the original or preliminary agreement cannot constitute an enforceable contract.
¶38 In Bogue v. Bogue the Ontario Court of Appeal quoted Bawitko with approval, as it did in Lundrigan v. Andrews, and most recently in Ward v. Ward. All three of these cases were family law cases. In some, the court found an enforceable agreement. For example, in Bogue, the court found an enforceable settlement arising out of a four-way settlement meeting. The court held the parties had agreed to all the essential terms of their agreement and therefore enforced the settlement.
¶39 In Lundrigan, the court found that the course of conduct by both parties indicated that they viewed a formal document as essential. The court noted they had not actually agreed on the terms of that document since the husband refused to accept Minutes of Settlement as drafted because they included a term that had not been agreed upon. The court held that in the circumstances of that case, “a reasonable observer could conclude that preparation of a mutually acceptable formal document was essential to the settlement.” In Lundrigan, the parties had exchanged various iterations of Minutes of settlement. Some were signed with some changes, and others without them.
¶40 In Ward, the court upheld a handwritten ‘Memorandum of Understanding’, even though it had a preamble that said it was subject to counsel ‘working out a separation agreement [with] satisfactory language.’ In large part, the court came to this conclusion because the parties had behaved as though they had a binding agreement. The husband delivered $250,000, the wife accepted it, and used the money to buy a new house. The wife never offered to return the money, although she suggested the MOA was not a binding agreement. It is noteworthy that in Ward, the parties themselves signed the MOA, and their signatures were witnessed. Thus, their document complied with the provisions of the Family Law Act as far as the enforceability of domestic contracts is concerned.
¶41 What emerges from the cases is that each will be fact-driven, and turn on an interpretation of what the parties objective intentions were. I emphasize the notion of discerning objective intentions, because parties generally govern themselves in a self-serving fashion when the issue of enforceability arises, in order to bolster their respective positions as to whether a binding agreement has been formed or not.
[21] As stated by the Court of Appeal in Lundrigan, at para. 8, the term “intention” is not used in the subjective sense but whether “in the eyes of a hypothetical onlooker” the parties appeared to have reached an agreement. In determining this issue, the courts will look at the conduct of the parties at the time.
[22] Based on the factors set out below, I am not prepared to grant judgment to the respondent. I cannot conclude based on the evidence before me, that the parties had agreed on all the essential terms of an agreement and had a clear intention to have a final settlement. Further, I do not find that the conduct of the parties showed a clear intention to have an agreement and to be bound by the provisions of the agreement.
[23] After the proposal was made by Mr. Epstein with respect to certain financial matters, including spousal and child support, Ms. Gamus wrote to Mr. Epstein on May 14, 2014. This is the letter that the respondent relies on to support his position that there was an acceptance of the applicant's offer. The language of Ms. Gamus's correspondence suggests otherwise. In her correspondence, she writes: "Below is our understanding of the agreement reached (note we have added custody and parenting time so that this matter can be finalized in its entirety) by the parties at your offices on May 7, 2014. We have added specifics to the drafting of the agreement and the divorce, which we trust satisfactory." Ms. Gamus goes on to state "... The above as well as terms confirming joint custody and the parenting schedule shall be included in a final Separation Agreement, acceptable to both parties and their Counsel, which shall be signed on or before 31 May 2014, and which Epstein Cole shall provide the first draft to Lou's counsel no later than May 21, 2014." The language of the letter suggests that the terms of a final agreement have not been agreed to and that all of the terms must be acceptable to both the parties and counsel, including any custody and parenting issues.
[24] Additionally, there are changes included in Ms. Gamus's letter that do affect the essential terms of the agreement. The notes of Mr. Rapoport that the respondent relies upon do not include all of the terms set out by Ms. Gamus in her correspondence of May 14, 2014. While there is reference to a lump sum of $200,000 in Mr. Rapoport's notes for child support, there is no reference to this lump sum covering the period between now and when Hannah turns 18. There is reference to a review for continuing support for Hannah after high school, but no mention of age 18. Mr. Epstein's letter of May 27, 2014 states that the lump sum only covers table child support until Hannah finishes high school. He contends the lump sum payment is fixed and non-variable regardless of Hannah's residence. He further indicates that a review of ongoing table support under the Guidelines will take place at least six months before Hannah finishes grade 12. In Ms. Gamus's letter, she states that the issue of the respondent's obligation for Hannah's further support for the cost of her post secondary education is to be reviewed the earliest of Hannah or the applicant knowing some or all the costs of post secondary education or six months before the commencement of post secondary education. Counsel for the respondent concedes that the timing of the review is a variation from the proposal of Mr. Epstein on May 7, 2014.
[25] Mr. Rapoport's notes refer to a $15,000 maximum contribution by the respondent for section 7 expenses for extracurricular activities, including HST. Ms. Gamus's letter refers to the respondent paying up to a maximum of $15,000 per year while Hannah is at high school for section 7 expenses, including medical expenses, so long as the respondent receives proper third-party receipts which shall include HST. In reviewing Mr. Epstein's letter of May 27, 2014, it is apparent that the issue of extracurricular activities is a point of contention between the parties. It is also apparent that there was no agreement regarding medical expenses, or for that matter dental expenses, which appears to be confirmed by Mr. Rapoport's notes which refer only to extracurricular activities. Further, in Mr. Rapoport's Affidavit, sworn July 3, 2014, he deposes that all key issues were resolved in the offer Mr. Epstein communicated that day, i.e. custody, child support, spousal support and property and that the only issue left was access. His notes, however, make no mention of custody or access.
[26] There also appears to be a disagreement with respect to Samantha. Mr. Rapoport's notes indicate that there is no position either way with respect to Samantha. Ms. Gamus's letter of May 14, 2014 indicates that the agreement would be silent as it applies to Samantha's right to pursue child support from the applicant on the understanding that there is no present determination as to whether the applicant stands in loco parentis. In contrast, Mr. Epstein's letter of May 27, 2014 indicates that the agreement must include all releases, including a comprehensive release of any claim by the respondent for child support for Samantha as discussed. He also includes a provision that the parties agree that Samantha is not a child of the marriage and if in the future any claims are made against the applicant, the respondent will indemnify the applicant for the full amount of legal fees and disbursements in such claim and the applicant may set aside the terms of the settlement with the respondent.
[27] Counsel for the respondent submits that counsel for the applicant has to resort to parsing out every word used by Ms. Gamus in her correspondence to argue that no settlement was reached. I agree with counsel for the applicant that the wording of the correspondence between counsel and from the respondent himself is key in determining the intention of the parties as to whether they had agreed on all essential terms and whether they had a "meeting of the minds." There is much correspondence to prove that they had not reached an agreement.
[28] In her e-mail to Mr. Epstein of May 17, 2004 during the May long weekend, Ms. Gamus states: "It appears that this matter is essentially settled...". She also refers to the fact that the other outstanding motions would have to be adjourned. I agree with counsel for the applicant that if Ms. Gamus believed there was a final settlement, she would not have used the word "essentially" and these motions would not necessarily have to be adjourned. It is apparent that Ms. Gamus anticipated that more time would be required to finalize the terms of the Separation Agreement as they had not yet been agreed to by the parties and counsel.
[29] Mr. Epstein, in his correspondence of May 20, 2014, indicates that the parties do not have a settlement until they sign an agreement with all of the issues, including parenting. Despite the fact that he was not the respondent's matrimonial counsel, Mr. Rapoport responded to Mr. Epstein on May 20, 2014. He requested that Mr. Epstein get back to them as quickly as possible so that a final Separation Agreement could be finished that week. He indicated that the respondent was prepared to put funds in trust with his matrimonial lawyers if this gave the applicant confidence in the settlement. He also referred in his e-mail to the fact that the terms were being finalized. Mr. Epstein responded the same day reiterating that there was no settlement and that the respondent's latest letter was a proposal. Mr. Epstein repeated that the parenting issues were a key component of the settlement and that they were not going to bifurcate the case.
[30] Further correspondence from Ms. Gamus on May 21, 2014, includes a proposal with respect to custody and access issues. She also indicates in her e-mail that she looks forward to hearing from Mr. Epstein regarding the proposal and the overall agreement. Additionally, on May 23, 2014, Ms. Gamus sent another e-mail to Mr. Epstein indicating that she had yet to receive a letter with a "counter-offer". She states that the respondent's position was that if he had to spend any monies preparing further for court, these would be deducted from any settlement funds "if a settlement is reached". She also refers in her e-mail to the issue of the late filing of materials for motions.
[31] On May 27, 2014, Mr. Epstein wrote to Ms. Gamus outlining the applicant's proposal for settlement. I have already referred to a number of the issues raised by Mr. Epstein with respect to Mr. Epstein's original proposal at the May 7, 2014 meeting which he felt had been changed by Ms. Gamus. He also provided a response to the parenting proposal made by Ms. Gamus on May 21, 2014.
[32] Additionally, as indicated, the respondent himself provided correspondence to Mr. Epstein's office on May 16, 2014 that indicated there were still issues in contention and negotiations were ongoing. In this e-mail written to Ms. Palmer, student-at-law at Epstein Cole, the respondent indicates that the issues had been narrowed to a point where he believed "a reasonable settlement is a likely reality." He requested that "...Mr. Epstein finish what he has started without further interference from other parties." In an e-mail on June 15, 2014 to Hannah's piano teacher, while referring to the parties' divorce proceedings, he states what the budget for piano lessons is until the parties have a new agreement or there is a court order.
[33] It is also important to note that at no time after Ms. Gamus's letter dated May 14, 2014, does she or any other counsel from her office write to any of the lawyers at Epstein Cole to advise them that there is a binding agreement between the parties. This does not appear to occur until the respondent and his counsel decide to bring this motion.
[34] The correspondence between the parties as outlined above, indicates that there were still outstanding issues between the parties and that there had not been consensus on all essential terms. It is reasonable to conclude based on the evidence that the issues of child support and spousal support were important to the parties but that the parenting issues would also have to be addressed as part of a final settlement which is alluded to by Ms. Gamus in her letter of May 14, 2014 when she states "...The above as well as terms confirming joint custody and the parenting schedule shall be included in a final Separation Agreement, acceptable to both parties and their counsel, which shall be signed on or before 31 May 2014 and which Epstein Cole shall provide the first draft to Lou's counsel by no later than May 21, 2014." The correspondence demonstrates that these issues were also essential terms of any agreement and still had to be negotiated. Final terms regarding child support and spousal support also had to be finalized. It was a clear intention of the parties that a signed Separation Agreement was required to create a binding agreement and Ms. Gamus's letter confirms this as early as May 14, 2014. This intention of the parties would be apparent "in the eyes of any hypothetical onlooker."
[35] While recognizing that this is a motion for judgment, I cannot conclude that the failure of Mr. Epstein to swear an affidavit for this motion should lead the Court to draw conclusions unfavourable to the applicant. The applicant herself swore an affidavit outlining her position at the settlement meeting that there could not be a final settlement until all issues were resolved. Neither Mr. Epstein nor Ms. Gamus, both matrimonial counsel for their respective clients at the meeting, swore an affidavit. Evidence for the respondent comes from the respondent himself and from his civil litigation counsel, Mr. Rapoport. I have already indicated that Mr. Rapoport's notes do not completely accord with the letter sent by Ms. Gamus. Most importantly, the correspondence between counsel subsequent to the settlement meeting provides the Court with evidence on which to determine this issue. The absence of an affidavit from Mr. Epstein, and for that matter Ms. Gamus, does not hinder the Court from determining this issue. Mr. Epstein's position on this issue of settlement and the extent of the negotiations is set forth in his e-mails and letters to the respondent's counsel post settlement meeting, all of which are before the Court.
[36] Counsel for the respondent, as indicated, also submits that if the Court is not in agreement with the respondent's position that an order for judgment should issue, he asks that the Court render partial judgment with respect to the issues of the lump sums in particular. He asks the Court to compare the two letters sent by counsel, being the letters of Ms. Gamus dated May 14, 2014 and Mr. Epstein dated May 27, 2014, and to conclude that the essential terms of an agreement had been agreed to by the parties. He contends that the May 14, 2014 letter represents an offer from the respondent and that the May 27, 2014 letter represents an acceptance on those essential terms and that partial issues have been agreed to by the parties. For all of the same reasons as I have mentioned above, I decline to grant this relief to the respondent. I have already concluded that there were ongoing negotiations and it was the intention of the parties that all of the terms would be agreed upon and contained within a Separation Agreement satisfactory to the parties and to counsel. There was to be no partial settlement.
[37] For all of the reasons above, the respondent's motion for summary judgment is dismissed.
[38] I urge the parties to agree on costs but if they are unable to do so, the applicant shall serve and file written costs submissions, no longer than two double-spaced pages, along with a Bill of Costs and any Offers to Settle, within 14 days. The respondent shall serve and file responding written costs submissions, no longer than two double-spaced pages, 14 days thereafter. Any reply by the applicant shall be served and filed 7 days thereafter.
Stevenson J.
DATE: July 16, 2014