Weese v. Cybulski, 2015 ONSC 832

SUPERIOR COURT OF JUSTICE

CITATION: Weese v. Cybulski, 2015 ONSC 832

COURT FILE NO.: 123-2013

DATE: 2015/02/05

ONTARIO

BETWEEN:

Linda Weese

Roger M. Hunt, for the applicant

Applicant

• and -

Ron Cybulski

David A. Reid, for the respondent

Respondent

HEARD: January 29, 2015 (Goderich)

Mitchell J.:

Overview

1Ms. Weese seeks an order enforcing a settlement of all issues in this action on a final basis.

Factual Background

2The parties were separated in November, 2001 after 33 years of marriage. A final order was made on November 29, 2003 by Justice Snowie requiring the respondent to pay spousal support to Ms. Weese in the amount of $4000/mo. (the “Final Order”).

3The parties have not spoken since the Final Order was made.

4On September 5, 2013 Mr. Cybulski brought these proceedings seeking to terminate his spousal support obligations.

5Ms. Weese responded seeking retroactive variation of spousal support. By her calculations, Mr. Cybulski owes her in the range of $150,000 to $200,000 for the years 2008 to 2012, inclusive.

6The parties participated in a settlement conference before Garson J. on July 31, 2014.

7Following a meeting among the parties and their respective counsel, Garson J. made the following endorsement:

All parties and counsel present. Settlement Conference held. After some discussion, parties appear close to resolution. Minutes of Settlement can be filed with me for review. Matter adjourned to a date to be fixed by the Trial Coordinator for Assignment Court, if required (emphasis added).

8On August 6, 2014, Mr. Reid, counsel for the respondent, wrote to Mr. Hunt, counsel for the applicant, stating by way of preamble, “Further to our attendance at the settlement conference this confirms that my client agrees to settle the matter as follows: …”.

9The following day, Mr. Hunt responds to Mr. Reid stating by way of preamble “We have contacted Ms. Weese regarding your [August 6, 2014] letter, and confirm that she agrees to settle the matter as follows: …”.

10By letter to Mr. Hunt of August 8, 2014 (at 9:30 a.m.), Mr. Reid’s offices confirm that Mr. Reid is on holidays until August 21^st and further confirm Mr. Hunt’s agreement to extend the August 15^th date contained in his letter of August 7, 2014 to August 29^th.

11Mr. Reid’s offices write to Mr. Hunt again on August 8, 2014 (at 10:08 a.m.) asking whether Ms. Weese will consent to signing a Notice of Withdrawal to ensure no further support is garnished by the Family Responsibility Office from Mr. Cybulski’s wages.

12On August 13, 2014, Mr. Hunt responds to the August 8, 2014 correspondence asking for, among other things, draft Minutes of Settlement and confirming a Notice of Withdrawal will be signed once Minutes of Settlement are signed and payment is received.

13Mr. Reid returns from vacation and writes to Mr. Hunt in response to his August 7, 2014 letter. On August 26, 2014 he writes:

The only provision I have difficulty with is number 4.¹ We need language to clearly indicate that it is the intention of the parties that there would be no further spousal support after this payment is made subject to him working after August 2016. If he chooses not to work we cannot have her bring a motion stating that he should keep working. In addition, the $100,000 should be reduced by whatever monies she has been paid since we were in court.²

14Later that same day, Mr. Hunt responds to Mr. Reid’s concerns as follows:

To clarify the intention of #4 of our letter dated August 7, 2014, we would suggest the following wording:

Spousal support shall continue to be payable only if the Respondent, Ron Cybulski, continues to work and earns an income after August 15, 2016.

We agree that the $100,000 should be adjusted by whatever monies have been deducted from Ron Cybulski’s income commencing August 1, 2014 and paid to Linda Weese.

15Mr. Reid writes to Mr. Hunt on August 28, 2014 advising that Mr. Cybulski believes his bone cancer is back and so he is unable to work and, therefore, unable to afford the $100,000 payment to Ms. Weese. He writes: “Given this situation his offer to settle is hereby withdrawn.”

Position of the Parties

16Ms. Weese claims the parties reached an agreement during the parties’ discussions on July 31, 2014. The August exchange of correspondence between Mr. Hunt and Mr. Reid only served to provide detail with regards to the fundamental terms already agreed by the parties at the settlement conference.

17In contrast, Mr. Cybulski takes the position there was no agreement reached by the parties on July 31, 2014. Mr. Cybulski submits that at no time were the parties ad idem on the fundamental terms of settlement because the suggested language and the adjustment to the settlement amount mechanism proposed by Mr. Hunt in his correspondence of August 26, 2014 were not acceptable to the respondent.

Analysis

18I am not persuaded that a settlement was reached by the parties on July 31, 2014; however, I find that a settlement was reached on August 26, 2014.

19Justice Garson was advised by counsel for both parties that a resolution of the issues was close but that a settlement had not been reached.

20Mr. Reid’s letter of August 6^th constituted the respondent’s offer to settle. Notwithstanding, Mr. Reid’s use of the word “agree”, it was in reference only to the respondent’s agreement and not the parties’ agreement. My Cybulski’s offer to settle comprised 7 terms (no doubt on terms along the lines of those discussed on July 31, 2014).

21Mr. Hunt’s letter of August 7^th constituted the applicant’s counteroffer (amended to extend the dates to August 29, 2014 to accommodate Mr. Reid’s vacation schedule). Ms. Weese’s counteroffer comprised 12 terms and was prefaced with similar language to that used by the respondent.³

22Mr. Reid’s letter of August 26^th confirms the respondent’s acceptance of 11 of the 12 terms of the applicant’s counteroffer. The respondent required clarification of the applicant’s intention with respect to item 4 and confirmation that amounts garnished post-July 31, 2015 would be reimbursed to Mr. Cybulski. These points of clarification were the only issues outstanding.

23By letter of August 26^th, Mr. Hunt confirmed that his client’s understanding with respect to item 4 was in accord with the respondent’s understanding and confirmed that any monies garnished post-July 31, 2014 would be adjusted in favour of Mr. Cybulski. Mr. Hunt’s emphasis of the word “adjust” suggests he takes issue only with the mechanism for reimbursement, not the entitlement of the respondent to reimbursement.

24Mr. Cybulski claims there was no agreement on these two issues but does not explain why he takes issue with the applicant’s proposed language and mechanism for adjustment. While the respondent may disagree with the proposed logistics of carrying out the terms of settlement, the parties are ad idem on all of the essential terms.

25Upon Mr. Reid’s receipt of Mr. Hunt’s fax of August 26, 2014 a binding settlement was deemed to have been reached. At that point in time, all essential terms had been agreed by the parties.

26While Mr. Hunt insisted that Minutes of Settlement be drafted and signed, I find this was not a precondition to a settlement being reached; rather, was a pre-condition to the applicant carrying out her obligations pursuant to the settlement agreement, including executing a Notice of Withdrawal. The fact that formal Minutes of Settlement to the same effect as the essential terms already agreed upon were to be prepared and signed does not alter the binding effect of the original agreement evidenced by the exchange of correspondence between Mr. Reid and Mr. Hunt between August 6 and 26, 2014: see MacRea v. Simpson, 2002 Carswell Ont. 4425 (S.C.J.) at para 23. See also Brogue v Brogue, 1999 3284 (ON CA), [1999] O.J. No. 4310 (C.A.) at para.12.

27Furthermore, it is in the interests of justice that the settlement reached by the parties be enforced. Issues relating to the payment of spousal support first arose more than 13 years ago. Closure is needed. The settlement reached by the parties will allow the parties to move forward with their lives in a positive manner free of any threat of future litigation.⁴

Conclusion

28Judgment to issue in accordance with the draft final order prepared by the applicant and filed on the motion subject to the following changes to reflect the terms of settlement:

1. Para 1: effective date of settlement is August 26, 2014.

2. Para 5: The words “Ongoing periodic” to be deleted. The date to be changed to August 29, 2016.

3. Para 6: The date to be changed to August 29, 2016. The word “periodic” to be deleted.

4. Para 8: The dated to be changed to August 29, 2016.

5. Para 12: Deleted.

29If the parties are unable to agree, I will entertain brief written submissions not to exceed 5 single-sided, double-spaced pages, excluding any Cost Outline and Bill of Costs. The applicant shall file her submissions within 15 days and the respondent shall file his responding submissions within 7 days thereafter.

Footnotes

1. 1Item 4 reads: “The spousal support shall be reviewable on or after August 15, 2016.”
2. 2The parties were in court on July 31, 2014.
3. 3“[Ms. Weese] agrees to settle the matter as follows:”
4. 4No evidence was before me to show Mr. Cybulski is not working and/or is unable to work.