Bancheri v. Mirian, 2016 ONSC 1527
CITATION: Bancheri v. Mirian, 2016 ONSC 1527
NEWMARKET COURT FILE NO.: FC-14-46370-00
DATE: 20160302
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Melchiorre Giuseppe Bancheri, also known as Michael Bancheri
Applicant
– and –
Shideh Mirian
Respondent
Lorraine A. Bortolussi, for the Applicant
Jaret Moldaver, for the Respondent
HEARD: February 3, 2016
RULING ON A MOTION
ROGERS j.:
Relief Requested in the Motion
[1] The court heard a motion found at volume 2, tab 1, on February 3, 2016. Michael Bancheri (the “husband”) asks the court to grant summary judgment to render an order that a final agreement was reached at a four way meeting on July 14, 2015 as set out in the Minutes of Settlement found at volume 2, tab 2, exhibit I. Shideh Mirian (the “wife”) resists this motion and asks the court to dismiss the summary judgment motion because there was no agreement reached or, as a default position, the issue cannot be decided under Rule 16 (6.1) of the Family Law Rules, O. Reg. 114/99, as amended, and must be heard by oral evidence, perhaps under Rule 16 (6.2) or by a full trial. The wife submits that the meeting on July 14, 2015 created a platform for the parties to move ahead with negotiations but there was not a final agreement.
Steps in the Motion
[2] The deployment of Rule 16 has two applications in this motion. First of all, the court was asked by the husband to determine that there was a final agreement reached and, therefore, the court would find that a final order should be made in the form of the alleged final agreement. In doing so the court might call upon Rule 16 (6.1). If the court was unable to ascertain if there was final agreement, or not, using Rule 16 (6.1), then the court might use Rule 16 (6.2) to structure a mini hearing to adjudicate whether there was a final agreement and hence a final order.
[3] Secondly, if the court found there was no agreement, could a mini hearing be set up to try the outstanding issues? This point was not clearly addressed in the submissions, but the court should turn its mind to this consideration.
Facts in the Material
[4] The parties attended a three hour meeting with both of their lawyers. The husband’s lawyer in the motion, Ms. Bortolussi, was his lawyer then. The wife’s counsel, Mr. Moldaver, was not counsel for the wife at the time of the meeting. At the end of the meeting, no written memorandum or minutes of settlement were drawn up.
[5] The day after the meeting, the lawyer for the husband sent an e-mail setting out what she believed were the terms of agreement. She indicated in her e-mail that the terms could be “fleshed out in the Minutes of Settlement and Separation Agreement” that the lawyer for the wife was to prepare. The terms counsel for the husband set out, were labelled as “final”. This e-mail is found at volume 2, tab 2, exhibit A and is referred to herein as exhibit A.
[6] On August 17, 2015 counsel for the wife sent a document called “Minutes of Settlement” to the other party’s counsel. The terms in this document were not all the same as in the e-mail, exhibit A, from the husband’s lawyer. This document from counsel for the wife is found at volume 2 tab 2, exhibit G and is referred to herein as exhibit G.
[7] On September 9, 2015 the lawyer for the husband sent an e-mail to the other side. Enclosed was a document entitled “Minutes of Settlement”. This document differed from the e-mail, exhibit A, of July 15, 2015 from Ms. Bortolussi and from the Minutes of Settlement, exhibit G, from the lawyer for the wife. These Minutes of Settlement from the lawyer for the husband are found at volume 2, tab 2, exhibit I (2) and are referred to herein as exhibit I (2).
[8] Therefore there are three documents for the court to consider. They are:
(a) Exhibit A sent by the lawyer for the husband on July 15, 2015. This is in the form of an e-mail and set out terms of what was said to be a final agreement and said to be “fleshed out in the Minutes of Settlement and Separation Agreement” which the lawyer for the wife was to prepare.
(b) Exhibit G is sent August 17, 2015 enclosed with an e-mail from the lawyer for the wife. This document is in the form of Minutes of Settlement drafted by the lawyer for the wife.
(c) Exhibit I (2) is enclosed with an e-mail from the lawyer for the husband dated September 9, 2015. This is the Minutes of Settlement that the husband requests in the Notice of Motion, be made into an order.
[9] Aside from the three noted documents, the material contains other factors counsel asked the court to consider.
[10] It was ascertained during the motion that the husband had not disclosed his Notice of Assessment for 2014 and evidence of his 2015 income to the date of the meeting July 14, 2015. He had sworn a financial statement setting out his income and had disclosed his income tax return for 2014.
[11] The husband paid for four months of child support based on the alleged agreement just the week before the motion.
[12] The material shows there is about $30,000 being held in trust by the lawyer for the husband.
[13] The material does not contain a hand-corrected Net Family Property Statement (hereinafter referred to as the “NFP”) that was considered at the meeting.
Law
[14] In relief number one of the Notice of Motion it requests:
- An Order for Summary Judgment confirming the terms of the settlement reached between the parties on July 14, 2015 as set out in the affidavit of Michael Bancheri, sworn January 22, 2016, Exhibit “I”, tab 2;
[15] In considering if there are genuine issues for trial, the court must look at a number of issues. Has the mover discharged his or her onus on the balance of probabilities? Has the mover put forth only “trial worthy” evidence rather than evidence that might be inappropriate such as hearsay or self-serving evidence? Has the responder to the motion put forth more than mere assertions or denials and put his or her best foot forward?
[16] The court can only consider the evidence within the four corners of the motion material.
[17] Since the amendment to Rule 16, the court can now move to examine credibility under Rule 16 (6.1 and 6.2) should this be necessary.
[18] In considering the existence of a final agreement the intentions of the parties are relevant. Intention is to be measured as that of a reasonably objective person; not as that subjective view of the parties. Further, the essential provisions that would make up the agreement must be agreed upon and there must be clarity in those terms. The court should also ask the question as to whether the parties or a party behaved as though an agreement had been reached. Did one or both parties perform the obligations they allegedly committed to in the agreement?
Analysis: Was there a Final Agreement?
[19] The onus of proof is on the mover of the motion, Mr. Bancheri.
[20] The court is satisfied that the husband has provided the court with more than mere assertions or denials. The evidence is “trial worthy” in that it is not hearsay.
[21] The task of ascertaining the intentions of the parties is made difficult in that the parties did not commit anything to writing at the end of the meeting. The usual memorandum of understanding was not created. The only indication of the alleged agreed-upon terms came from the husband’s counsel the next day. This e-mail from counsel took the position that a final agreement was reached but there is no document that has the signature of both counsel and/or parties concerning terms, final or otherwise.
[22] The court is not prepared to take as conclusive evidence that a “deal” was reached in that handshakes were made at the conclusion of the meeting. Handshakes can also be interpreted as common politeness.
[23] The court is concerned that the wife did not have proper disclosure of the husband’s income at the July 2015 meeting. This speaks to the likelihood of a tentative agreement awaiting proper disclosure.
[24] The court finds the most significant concern to be in the three documents as set out in paragraph 8 above. The Notice of Motion asks the court to turn exhibit I (2) into the final order. The content of the document exhibit I (2) sent on September 9, 2015 by the lawyer for the husband differs from the same counsel’s earlier e-mail (exhibit A) sent the day after the meeting of the parties and counsel. In short, the husband was changing some of the terms and adding some terms from what he said was a final agreement in exhibit A. The differences are not insignificant. Differences noted are as follows:
(a) Exhibit A does not speak to the Hague Convention issue, but exhibit I (2) does.
(b) Exhibit A does not refer to the abandonment of a child support discount for shared parenting whereas exhibit I (2) does. It would be significant to lay this issue to rest for any future change in the agreement/order as the wife’s view was and is that the husband’s time with the children did not amount to 40% of the time.
(c) The proposal regarding section seven expenses shifts between the two documents of the husband. In exhibit A it states that activities for the children would be limited to two per season and those beyond that would have to be agreed upon, but in exhibit I (2) all section seven expenses have to be agreed upon. This is quite a different approach to section seven activities from what the husband allegedly agreed to as a final agreement. In exhibit I (2) post-secondary expenses are introduced with a cut-off date for each child but exhibit A says nothing about this. This is a very important issue that only arises in the exhibit I (2) and cannot be seen as “fleshing out”.
(d) Life insurance does not appear in exhibit A but does in exhibit I (2). This should be an essential ingredient of an agreement and, in this case was of greater interest to the husband as the wife is alleged to be the higher income owner. Clearly, the husband rethought the insurance issue after July 14, 2015.
[25] If the husband’s first document, exhibit A, differs from his second document, exhibit I (2), then he is not asking the court to make the terms allegedly agreed upon on July 14, 2015 into an order. He is asking the court to make a different document into a final order. Clearly this document was never agreed upon; in fact, the husband himself changed major essentials from one document to another. If he contended in the e-mail from his counsel on July15, 2015 that exhibit A represents the agreement, then exhibit I (2) could not.
[26] As well, the difference between the two documents of the husband as well as the differences between the three documents, exhibit A, exhibit G and exhibit I (2) show the parties were still negotiating as late as September 9, 2015. Otherwise, why would essential terms keep changing?
[27] In addition to the discrepancies between the documents, especially the two documents of the husband’s, the husband could not have accepted that the parties reached a final agreement given his performance on the critical issue of support as set out in the alleged contract. He did not pay the $800 a month as set out in both exhibit I (2). He only paid for September through to December the week before the motion. This is a fundamental failure to perform a critical clause of the alleged contract. Counsel for the husband says the wife could have accessed monies to cover support from funds being held in trust that were, by the alleged agreement, to go the husband. That is not accurate on the evidence before the court. The wife could have accessed said funds if she signed the agreement in the form the husband proposed. As of the hearing of this motion, if relying on exhibit I (2) as a final agreement, the husband was in arrears for August, January and February of 2015.
[28] In an e-mail dated July 29, 2015, before receipt of the draft agreement as prepared by counsel for the wife, counsel for the husband proposes paying out monies held in trust prior to the signing of the alleged agreement. Counsel goes on to state that if this is not agreed to, all the financial terms of the agreement are suspended until the agreement is signed. This implies that signing the alleged “deal”, is a condition prerequisite to achieving an agreement at all.
[29] The court was concerned that the NFP said to be the basis of the property settlement was not provided to the court. Apparently a draft was changed by hand-writing during the three hours of the meeting. Without this document the court cannot ascertain what, if any, agreement was reached on the pension issue. The material in the motion shows many differing positions on the pension over time from before and after the meeting. The pension had been valued before the meeting. In exhibit A the husband releases his right to the pension. In exhibit I (2) there is no release. The draft agreement by the lawyer for the wife does not deal with the pension but says it as an issue to be dealt with later. In his affidavit at paragraph 27 the husband states that the wife’s counsel had said the pension should be divided one half to each party. In a NFP prepared by the lawyer for the wife after the July 14, 2015 meeting, the pension is in the NFP calculation. There did not seem to be agreement even as between the husband’s two documents exhibits A and I (2), let alone as between the parties. There was no meeting of minds with respect to the pension as the husband had different positions himself. Clearly there was more negotiating to be done on this essential issue.
[30] There is no executed agreement to assist the court. The husband had not properly disclosed essential documents about his income at the time of the meeting. The three documents, exhibits A, G and I (2) show that the parties actually did not agree on the essential issues. In fact, the husband himself changed his position on several important issues within his own drafts, exhibit A and exhibit I (2). Clarity on the issue of the division of the wife’s pension was completely lacking. The husband did not perform his critical obligation of support payments under the alleged agreement.
[31] Without even the necessity of deploying Rule 16 (6.1), the court can only conclude that there was no final agreement. Therefore there are many genuine issues for trial.
Application of Rule 16 if No Agreement
[32] Would Rule 16 (6.2) of the Family Law Rules assist by setting up a mini trial? The issues for trial are extensive and include complicated terms for parenting, annual income of the husband and the adequacy of his disclosure of such, an equalization payment, insurance to service support upon death of a paying parent, how the pension is to be dealt with, spousal support, section seven expenses, the booking of the children’s activities, travel to non-Hague Convention jurisdictions, post-secondary education and the sharing of tax credits. It would be difficult to conceive of a more extensive list of issues.
[33] A mini trial would not be appropriate as a tool to adjudicate these many difficult issues.
[34] Rule 16 (6.2) provides the court may give directions upon the failure to achieve a summary judgment. Because the husband’s income disclosure is not complete, the court shall give directions that a judicial settlement conference should be held after the completion of disclosure. Were that to not yield a substantial resolution, nothing short of a full trial is possible. Oral evidence is critical to determine the difficult children’s issues. The format of a mini trial is not suitable to a multi issue and complex case such as this.
[35] The husband asks the court to distribute funds in accordance with what he alleged was an agreement. Having found there was no such agreement, the funds will not be released as requested.
Order
The unexecuted Minutes of Settlement found at volume 2, tab I (2) are not indicative of a final agreement and shall not be an order of the court.
Relief number 2 is dismissed.
Costs may be claimed by written submissions of no more than two pages of text in the continuing record. To be on fourteen days’ notice. The party submitting for costs must first make an offer on costs to the other party. Submissions of party applying to be filed no later than March 31, 2016.
Justice S.M. Rogers
Released: March 2, 2016
CITATION: Bancheri v. Mirian, 2016 ONSC 1527
NEWMARKET COURT FILE NO.: FC-14-46370-00
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Bancheri
Applicant
– and –
Mirian
Respondent
RULING ON A MOTION
Justice S.M. Rogers
Released: March 2, 2016