SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

COURT FILE NO.: F1440/12

DATE: December 11, 2015

CORRECTED decision: the text of the original Ruling on Motion was corrected
on December 17, 2015 and the description of the correction is appended.

RE: Solomon Roy Rivers, Applicant

AND:

Krystal Lynn Burt, Respondent

BEFORE: JARVIS J.

COUNSEL:
Solomon Roy Rivers in person
Sharon Hassan for the Respondent

HEARD: December 9, 2015

ruling on motion

[1] The Applicant father (“the father”) and Respondent mother (“the mother) married on December 16, 2007. There is one child of their relationship, namely Hilary, born February 14, 2008. While there is no evidence of acrimony in the few years after the child was born, the record indicates that between 2012 and 2014 the parties’ relationship was dysfunctional, resulting in two handwritten agreements between the parties that dealt with the child’s custody. Those agreements are referenced in this Ruling as part of the background narrative; neither party made reference to these agreements in the argument before this court.

[2] In August 2015, the parties (after having had an on and off again relationship between 2012 to December of 2015) finally separated after the mother took the child to her family home in Niagara Falls (where the mother was raised) and indicated that she would be keeping the child with her. This prompted the father to commence an urgent Motion for the return of the child to her residence with him, and where the parties had earlier resided.

[3] On August 28, 2015, McSorley J. ordered that the child be returned to London by her mother and subsequently on September 9, 2015, Vogelsang J. ordered that the child remain with her father on a without prejudice basis and awarded the mother access. It is clear from a review of the Affidavits filed by both parents that there was, and remains, a high degree of conflict between them, which conflict has affected their daughter.

[4] Both parties retained counsel.

[5] In response to the father’s Motion for custody of the child, the mother brought a Motion for sole custody of the child. Both Motions were supported by extensive Affidavits and were adjourned by Vogelsang J. on September 19 to September 30, 2015 for a long Motion.

[6] After the order made by Vogelsang J., the parties continued to communicate with each other, notwithstanding that they had counsel, in an effort to resolve the outstanding issues relating to their daughter’s residency and schooling. Both were concerned about the effect that their conflict was having upon her. Although the parties disagree as to which of them was more intent than the other in settling the issues relating to their daughter’s custody and residency, on September 20, 2015 the father handwrote what he titled “Custody Proposal” and which indicated that the parents had reached a custody agreement regarding their child. A basic outline of the parties’ agreement was noted and the document was dated September 20, 2015, signed by the father and emailed to the mother. This document was followed soon afterwards by a document typed by the father entitled “Draft Custody Agreement”, the relevant particulars of which are as follows:

(a) the document stated that it was a “custody agreement reached September 20, 2015 after much communication” between the parties;

(b) the document indicated that both parties were agreeing “to withdraw our motions our daughter is feeling this whole situation and we both recognize that as our current situation progresses through court there is no win [the child] ultimately suffers”;

(c) the document indicated that the child would remain in the joint custody of both parents, that she would complete the first half of her school year ending after school in December 2015 in London, thereafter attending school in the Niagara Falls area and residing with her mother. The agreement also dealt with access, Christmas and family events;

(d) the document also indicated that it was “a draft agreement that we have agreed to via text messaging. This will be drafted by a lawyer and submitted to become a court order. We both are making sacrifices for the betterment of the situation and for [the child’s] best interest.” (bolding added)

[7] Both parties then communicated to their lawyers what they had agreed.

[8] By letter dated September 22, 2015, the father’s lawyer wrote to the mother’s lawyer as follows:

We have been advised by Mr. Rivers that the parties have come to an agreement in this matter whereby they will have joint custody of the child. The parties have further agreed that Hilary will remain in school in London until the Christmas break.

In accordance with the agreement of the parties, I understand your office will be drafting the minutes of settlement. Please confirm that you will be providing draft minutes to our office prior to the return date of September 30, 2015.

[9] Minutes of Settlement were subsequently drafted by a lawyer in the law firm acting for the wife. Those Minutes were approved by the wife and then forwarded to the husband’s lawyer on September 29, 2015, the day before the scheduled return date of the parties’ respective Motions for custody of their child. In a subsequent telephone discussion between the lawyers on the morning of the scheduled court date, the father’s lawyer indicated that she had reviewed the Minutes and believed that they reflected what the parties had agreed, but that she had not heard back from her client with respect to them.

[10] When, later that morning, the matter came before the court, the father who had by then read the Minutes, indicated that he was not prepared to sign them because, among other things, those Minutes did not reflect a condition that he contended the mother and he had discussed that their agreement was contingent upon him securing employment in the Niagara Falls area. Although there seems to have been some discussion between the parties relating to the father’s employment before September 30, the mother said that no such condition or understanding was ever had between the parties. As a result, the proceedings on September 30 were adjourned and the mother brought the Motion now before the court.

Analysis

[11] Both parties filed facta and casebooks of authorities in support of their position. This Motion was originally returnable on December 9 but, shortly before that day, the husband discharged counsel and on December 9 requested an adjournment to retain new counsel, which was granted but on terms peremptory to the father. On the return date of December 16, the husband appeared with new counsel but subsequently dispensed with her services and argued this matter himself.

[12] Neither party disagreed about the principles applicable to determining whether an agreement made between parties is legally binding. In Ward v. Ward (2011), 104 O.R. (3d) 401, 2011 ONCA 178, the court observed that,

53 At common law, an agreement is binding if the parties consider that it contains all essential terms, even if the parties also agree that those terms will subsequently be recorded in a more formal document together 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 provisions, or to defer the binding nature of the agreement until the execution of the proposed subsequent formal contract. The proper approach was discussed in Bogue v. Bogue (1990), 1999 3284 (ON CA), 46 O.R. (3d) 1 (C.A.) …

[13] The court also observed,

54 As well, to be binding, it is not necessary that the original contract include all the ancillary terms that are already implicit in its content. …

[14] In Bogue v. Bogue (1999), 1999 3284 (ON CA), 46 O.R. (3d) 1, [1999] O.J. No 4310 (Ont. C.A.), the husband challenged whether a settlement had been reached which did not include a provision that neither he nor his counsel had raised in lengthy discussions that appeared to have settled all of the parties’ outstanding issues. The husband sought to add a release clause that was, as the court described it, “unusual” but did not otherwise represent an essential term of the parties’ agreement dealing with support and property claims. No fundamental mistake was alleged (nor is it in this case) and it was clear that the parties agreed to be bound by their agreement and all that remained was for the lawyers “to reduce the terms to a formal document” (see Bogue, para. 13). It is difficult to view the father’s reference in the typewritten document that he sent to the mother on September 20 that their agreement would be “drafted by a lawyer and submitted to become a court order” as any different than the circumstances described above in Bogue.

[15] In referring to the draft proposal, the father stated that he made his proposal because he believed it “to be in Hilary’s best interest that her parents [got] along”. Later, in his Affidavit sworn November 5, 2015, the father indicated that he “agreed to settle on the terms set out in my proposal because I believed the proposal to be in Hilary’s best interest at the time”.

[16] In my opinion, there was an agreement between the parties on the essential terms that resolved the issues relating to the child’s primary residence with her mother, and which included time with her father and a vacation schedule.

[17] The “Draft Custody Agreement” was an expansion of the handwritten outline earlier prepared by the father. There is nothing in that outline or in the document later prepared by the father that referenced that the agreement was in any way conditional on his obtaining employment in the Niagara Falls area. In a subsequent text exchange between the parties before September 30, the father said that he wished to have some reference made in the Minutes about his obtaining employment but he stated that he had “said nothing about voiding” the agreement. It is difficult to interpret these words as anything other than that the husband did not view his employment as an essential term of the parties’ agreement.

[18] The subsequent Minutes of Settlement that were drafted by the wife’s lawyer included more expansive provisions that did not materially detract from the essential terms of the agreement which the parties had reached. Rather, and given the history of misunderstanding and conflict between the parties, many of the provisions contained in those Minutes reflected an effort to more comprehensively anticipate problems between the parties. For example, there were many provisions that dealt with non-harassment, each party encouraging a healthy relationship between the child and each parent, references to an exchange of academic and medical information, and encouraging the child to contact the other parent at the child’s discretion. None of these can in any way be considered objectionable but, even so, none of them was discussed by the parties on September 20 or afterwards before September 30, nor could they be viewed as “essential terms”, the absence or disagreement over which would vitiate any finding that an agreement had been reached.

[19] One of the terms of the parties’ agreement obligates the father to deliver the child to the child’s school on Monday morning following her weekend residency with him. Given that the father resides in London and the mother in Niagara Falls, this is not reasonable and so the child shall be returned to the care of her mother by 7:30 p.m. on Sunday evenings.

[20] Accordingly, an Order shall issue in terms of the typewritten agreement prepared by the father but revised to provide that the child shall be returned after weekend time as set out in the preceding paragraph.

[21] Essential terms of the parties’ agreement involve the parents having joint custody of Hilary, residency with her mother and access with her father. Nothing precludes the parties from refining and considering various provisions of the Minutes of Settlement that were prepared by the mother’s lawyer for the September 30, 2015 court proceedings. Many of those provisions were, as already noted, sensible and child-focussed.

[22] If costs are requested, the mother shall submit her submissions no later than December 30, 2015, limited to 3 double-spaced typed pages, her Bill of Costs and authorities (if any) upon which she may rely, along with any Offer to Settle.

“Justice David A. Jarvis”

Justice David A. Jarvis

Date: December 11, 2015

December 17, 2015: The due date for costs submissions contained in paragraph [22] has been amended.