CITATION: Stevenson v. Stevenson, 2015 ONSC 4031
NEWMARKET COURT FILE NO.: FC-14-46398-00
DATE: 20150624
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Hailey Stevenson
Applicant
– and –
Thomas Shayne Stevenson
Respondent
Debra L. McNairn, for the Applicant
Helen M. McCullough, for the Respondent
HEARD: June 17, 2015
Ruling on motion
jarvis j.:
[1] Hailey Ann Stevenson (“the wife”) and Thomas Shayne Stevenson (“the husband”) were married on August 16, 2000, and separated on February 1, 2014.[^1] There are two children of the marriage, a daughter 13 and a half years old and a son 12 years old. Both children have primarily resided with their mother since their parents separated.
[2] The wife commenced an Application August 2014 claiming a divorce, custody, child and spousal support and equalization of the parties’ net family properties. The husband delivered an Answer claiming, essentially, reciprocal relief. A Case Conference was held on January 30, 2015. An Order was made, on consent, at the conference dealing, among other things, with disclosure, scheduling a motion for temporary support (March 11, 2015) and providing for valuations of the matrimonial home and a recreational property.
[3] After the conference, and in an effort to settle their outstanding issues, the parties and counsel met on February 12, 2015. In advance of that meeting, counsel for the wife drafted and forwarded to husband’s counsel a Settlement Meeting brief comprising:
(1) Disclosure Outline and Information;
(2) A Net Family Property Statement;
(3) A Divorcemate support calculation; and,
(4) Draft Minutes of Settlement.
[4] The Settlement Meeting proceeded as scheduled. After the meeting was concluded, wife’s counsel e-mailed to husband’s counsel confirming that the parties had reached an agreement as earlier drafted in her Minutes of Settlement, save and except for certain revisions and additions which were clearly and unambiguously set out in the e-mail. Accompanying this e-mail was a revised NFP Statement that reflected what the parties had agreed as to values and allocations at their meeting. In short, the parties had agreed on all issues with the exception of the value to be attributed to the jointly-owned matrimonial home. It was agreed that the wife would arrange to obtain a valuation by a certified realty appraiser and that value substituted for the value in the NFP Statement. The husband had contended that the residence was worth $480,000, in which event the wife would owe him as and for an equalization payment about $87,000 as it was intended that he would transfer his interest in the residence to her. The wife believed that the value was less. The February 12 e-mail from wife’s counsel also noted that the parties had agreed that the husband would make a $60,000 lump sum spousal support payment in exchange for a spousal support release. The net amount that would be paid to the husband then, based on his estimated value for the matrimonial home, would be slightly more than $27,000. This, of course, depended on the outcome of the appraisal.
[5] The e-mail from wife’s counsel also requested,
“Please confirm the terms, as set out above. Thereafter I shall revise the Minutes accordingly and forward for execution by Mr. Stevenson.”
[6] The e-mail also referenced the forthcoming support motion, earlier scheduled at the Case Conference and stated,
“OCL: Given that the parties have reached an agreement I have advised Ms. Stevenson that her intake is not necessary.”
Further Financial Disclosure, Motion, etc: “We should make efforts to have the Minutes signed as soon as possible so that we can vacate the Motion and obtain the Final Order.”
“Please confirm the above by return e-mail.”
[7] By e-mail dated the next day, February 13, husband’s counsel wrote,
“The agreement set out in your correspondence of yesterday is confirmed. We are waiting only for the appraisal to finalize equalization…”
[8] That e-mail also raised an issue relating to the children, namely that the husband would maintain the children on his medical benefits and have the wife designated as trustee for the children as beneficiaries of $250,000 insurance on his life.
[9] The wife did not proceed to file her OCL intake form.
[10] The husband paid the wife $1,300 on February 15, 2015 as apparently agreed at the settlement meeting.
[11] The wife proceeded to engage a realty appraiser.
[12] An appraisal report dated February 18, 2015, was obtained. This report estimated a range of value for the matrimonial home between $425,000 to $435,000. Wife’s counsel revised the NFP Statement to incorporate a median value of $430,000 (with an appropriate adjustment for disposition costs) and forwarded that statement to husband’s counsel on February 24 along with Minutes of Settlement revised in accordance with the e-mails exchanged between counsel on February 12 and 13, 2015. Save and except for the revised value for the matrimonial home and its related disposition costs, all other asset and debt values and their allocations between the parties, conformed to the NFP Statement sent to the husband’s counsel on February 12, 2015, and with which husband’s counsel had confirmed his agreement. The effect of the appraisal, though, reduced the estimated equalization payment to $63,500 which, after netting out the $60,000 lump sum spousal support to be paid to the wife, resulted in the husband being entitled to slightly more than $3,500, an amount significantly less than what the husband had estimated he would receive if his higher estimate for the value of the matrimonial home had been confirmed. This is not what he had anticipated but the result is the logical outcome of the agreement reached by the parties on February 12, and the procedure for valuing the matrimonial home upon which they had agreed.
[13] The husband declined to sign the revised Minutes.
[14] By e-mail dated March 17, 2015 husband’s counsel raised issues about child alienation, and sought to revise certain asset values about which she had earlier confirmed her client’s agreement. But she also stated,
“I remind you that while the agreement had been negotiated it was not finalized as it was pending receipt of the appraisal of the home…”
[15] As a consequence of the husband’s refusal to acknowledge the parties’ agreement and further exchanges between counsel, the March 11 motion date scheduled at the Case Conference was adjourned to March 25. The wife sought, at that time, an Order enforcing a previous Order for disclosure from the husband and enforcement of the parties’ agreement or, in the alternative, child and spousal support and related relief. Due to time constraints, the only issues which the court was able to address on that day were child and spousal support, in respect to which support was ordered and the wife was awarded costs of $3,000 to be paid “at the time of equalization.” The motion now before this court represents a return of the wife’s motion for those matters not heard on March 25. There is no cross-motion by the husband.
[16] On or about May 11, 2015, the husband’s employment was terminated.
Analysis
[17] It is clear law that unless a limitation on a lawyer’s authority to compromise is communicated to an opposite party then the lawyer’s client is bound by the lawyer’s actions: Scherer v. Paletta, 1966 CanLII 286 (ON CA), [1966] 2 O.R. 524 (C.A.). Equally, it is within the court’s discretion to decide whether any such compromise should be enforced: Geropoulos v. Geropoulos (1982), 1982 CanLII 2020 (ON CA), 35 O.R. (2d) 763 (C.A.).
[18] In this matter, the evidence is clear that after a Settlement Meeting in which both parties made compromises, a settlement was reached, subject only to verification by a reliable appraisal of the matrimonial home of its value – a procedure upon which both parties agreed. The revised NFP Statement prepared by wife’s counsel and sent to the husband’s counsel by e-mail on February 24, 2015 clearly, and properly, reflected the financial terms of the parties’ settlement of their property, spousal support and related pre-settlement expenses. In my view, the invitation by the wife’s counsel to her counterpart to review the revised Minutes of Settlement and, if there were no revisions, have the husband sign them, would be expected in circumstances like this case to properly document a settlement. That the parties also regarded their affairs as being settled is reflected in the actions that each took after February 12 and, in the husband’s case, the absence of any credible evidence from him that no agreement had been reached. The e-mails from husband’s counsel on February 13 and March 17, 2015 cannot be any clearer in confirming an agreement was reached.
[19] In my opinion, and as already noted, the parties’ agreement on February 12 and 13 represented a settlement of their outstanding issues.
[20] It was incumbent on husband’s counsel to review the revised Minutes of Settlement sent on February 24 to verify whether they reflected the parties’ agreement. Nowhere in the husband’s evidence or in counsel’s submissions in argument was the court directed to those parts of the Minutes or NFP Statement that the husband contended did not reflect the parties’ agreement: rather the evidence in argument seemed to focus on pre-agreement positions or compromises, or engraft upon the agreement complaints about parenting issues arising after February 12, and after-thought terms.
[21] The remaining issue is whether, given the husband’s loss of employment about three months after the parties settled, the court should decline to enforce the parties’ settlement. There is no compelling reason why the settlement should not be upheld – the loss of employment does not vitiate the settlement, although that fact may represent a material change impacting the husband’s child support obligations. In this regard, the factors identified by LaForme J. as guiding the exercise of the court’s discretion in Harris v. Harris, [1996] O.J. No. 2430 (Ont. Gen. Div.), paras 9 and 10 of his judgment, are applicable. None of those considerations enures to the husband’s benefit in this case, and counsel was unable to identify any others that would assist him.
[22] Accordingly, the motion to enforce the parties’ settlement as reflected in the wife’s Net Family Property Statement appended as Schedule “A” to the revised Minutes of Settlement sent to the husband’s counsel by e-mail on February 24, 2015, is granted.
[23] After argument wife’s counsel tendered a draft Order respecting the relief sought by the wife and which asked, principally, for a declaratory order that the agreement made was binding on the parties, and for an order to issue in accordance with the Minutes of Settlement. However, these Minutes contained Releases, which cannot form part of an order. No opinion is expressed in this ruling whether the wording of the Minutes, as revised, otherwise conforms to the settlement as found since it does not appear that the husband’s counsel has reviewed them with this disposition in mind. In order, then, to deal with the parties’ settlement, the parties are directed as follows:
(1) husband’s counsel shall review the Minutes within 10 days of the release of these reasons and advise wife’s counsel which portion, or portions, of the revised Minutes do not accurately reflect the parties’ agreement;
(2) within seven days of the receipt by wife’s counsel of the husband’s response, she shall revise the Minutes and have her client sign them and forward them to husband’s counsel for the husband’s signing within five days thereafter;
(3) if the parties cannot agree on the wording of the revised Minutes after (2) above, or if the Minutes are not signed by the parties by the times noted, then wife’s counsel shall submit a copy of the last iteration of the revised Minutes and draft Order based on those Minutes to me.
[24] It is expected that the parties and counsel will cooperate expeditiously in finalizing the Minutes: if not, the court will be obliged to deal with the Order based on the parties’ settlement, along with the issue of costs.
[25] As for the temporary support order made by Rogers J. on March 25, 2015, the following is ordered:
(1) the support order made by Rogers J. is terminated;
(2) the child support as agreed by the parties shall be payable effective February 15, 2015. A new Support Deduction Order shall issue;
(3) the husband shall be given credit for all payments made to the wife as and for child and/or spousal support from and after February 15, 2015;
(4) the $3,000 costs awarded by Rogers J. payable by the husband shall be applied against, and deducted from, the net amount showing as owed to the husband as found on page 4 of the wife’s NFP Statement already identified above as Schedule “A”;
(5) the husband is granted leave to bring a motion to vary his child support obligations (as settled) if so advised.
[26] The court will deal with the matter of the costs of these proceedings after compliance with the directions set out in paragraph 23.
Justice D.A. Jarvis
Released: June 24, 2015
[^1]: The husband disputed this date, claiming that February 26 or 28, 2014 was the date that the parties separated. That issue is not relevant to this ruling.