Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: P.Z., Applicant and B.G., Respondent
BEFORE: F.L. Myers J.
COUNSEL: Stephen Grant for the respondent Tanya Road for the applicant
HEARD: January 25, 2016
ENDORSEMENT
Overview
1The respondent moves to enforce Minutes of Settlement signed September 10, 2015. Preferably, he seeks to enforce the terms of a Separation Agreement that he signed on December 1, 2015 but which has not yet been signed by the applicant.
2The respondent strongly appeals for an end to these proceedings. He has good reason for doing so. Even a cursory review of the record discloses that the applicant has made no secret of her intention to extend these proceedings. However, Matheson J. has already granted the respondent a divorce at the first hearing of this motion on December 17, 2015. As the applicant’s seventh lawyer only came on the record just before that appearance, Matheson J. adjourned the motion to today peremptory to the applicant.
3It is apparent from the terms of the Minutes of Settlement that while they expressly contemplate the execution of a Separation Agreement, doing so is not a condition precedent to the Minutes of Settlement becoming an enforceable agreement. Counsel for the applicant conceded this expressly during the hearing. In addition, upon the expiry of the cooling off period that was prudently built into the Minutes of Settlement, the applicant’s prior counsel, a senior member of the family bar, confirmed in writing to the respondent’s counsel that the Minutes of Settlement are in “full force and effect and binding on the parties.” In addition, the applicant has received from the respondent the sum of $2,120,841.57 under para. 1(c) of the Minutes of Settlement. She has also received monthly payments of $75,000 from October 1, 2015 as spousal support under para. 6 of the Minutes of Settlement. No one can deny that the Minutes of Settlement are binding and on foot.
Analysis
4The applicant does not object to an order being made to enforce the Minutes of Settlement. But, she says that the respondent is over-reaching in trying to enforce a Separation Agreement that they have not yet signed.
5Counsel exchanged drafts of a Separation Agreement through November, 2015. On December 1, 2015, thinking the agreement had reached a final stage, the respondent’s counsel delivered four original signed copies to the applicant’s former counsel.
6The applicant’s new counsel made two trivial drafting changes to the respondent’s first draft order last week. Today, orally in court, the applicant’s counsel raised a small number of issues with the draft Separation Agreement all of which seem to be readily soluble. There was no evidence proffered of any valid basis for the applicant to have waited until today to respond from December 1, 2015 especially knowing that this motion was returnable on a peremptory basis.
7I have no basis to enforce an unsigned agreement. I do however view it as important to enforce the Minutes of Settlement to leave no doubt as to its terms and to push the parties forward toward the last step. Mr. Grant argues however that his draft order that was discussed in court today, while drafted more broadly than just repeating the terms of the Minutes of Settlement, is nevertheless a proper embodiment of its terms in a formal order. Settling the terms of an order is quite properly a matter for the court.
Terms of the Draft Order
8Therefore, I have reviewed the respondent’s form of draft order and make the following comments:
Para 1(a)(ii) should commence “Within 60 days of September 10, 2015;”
The Minutes of Settlement contemplate the transfer of the cottage to the applicant and the sale of the matrimonial home. Para.2 of the draft order allows the applicant to attend each property at a mutually convenient time to remove his personal effects. In my view, this provision is readily implied in the Minutes of Settlement. It is necessary to give efficacy to the Minutes of Settlement as a final separation of the parties. Moreover a dispassionate rider on the Yonge Street subway (or the Clapham Omnibus) if asked whether the term was included in the Minutes of Settlement would say, “[o]f course.” The applicant denies that the respondent has any personal effects left at the properties. If that is so then there will be nothing for him to take when he attends. But the alternative is for goods to be lost on the sale or transfer or for the respondent to sue for replevin. Neither outcome is consistent with Minutes of Settlement in which the parties are completing their separation on a consensual basis and ending their litigation;
Paras. 10, 15, and 16 should be removed. They are payment terms and were not part of the Minutes of Settlement expressly or by implication;
Para. 25 is to be deleted. The respondent seeks an order preventing the parties from molesting, annoying, harassing or in any way interfering with each other or attempting to compel each other to cohabit or resume living together. Whether this is a proper carve-out from the agreed-upon releases is still being negotiated as part of the Separation Agreement. If the parties cannot agree, then a motion should be brought on evidence and with supporting law. If the respondent wishes to do so, then his motion must be served by February 2, 2016 and shall be made returnable before me during the week of February 15, 2016.
9The applicant is concerned that the respondent has not made the insurance designation required in para. 9 of the Minutes of Settlement and carried into para. 21 of the draft order. The uncontested evidence before the court is that he has done so and I so find. Moreover, whether all of the details of the settlement have been properly implemented is not an issue for this motion which is just enforcing the agreed upon terms. The obligation on the respondent is not diminished by enshrining it in an order. In fact, it is enhanced.
10Finally, the applicant has a concern about the respondent’s phrasing of his obligation to provide Leafs’ tickets as set out in the draft Separation Agreement. The parties expressly reserved this issue to the Separation Agreement in the Minutes of Settlement. Therefore that issue remains outstanding for completion of the Separation Agreement negotiations.
Policy Favouring Settlement
11In my view, the law’s strong policy favouring settlement of disputes applies very clearly to this proceeding. It is very much in the parties’ interests as well as the interests of their children, that they implement their settlement fully and completely as quickly and cost effectively as possible. The parties must avoid imbuing small matters with symbolic importance. There are a very few readily soluble items that require resolution so the parties can finalize their Separation Agreement. Counsel should sit down in a room with clients available by telephone and come to reasonable final compromises whereby they can both agree to commit to obtaining required instructions.
Costs
12The applicant’s reluctance to finalize the Separation Agreement or agree until very recently to the enforcement of the Minutes of Settlement led to the necessity for this motion. The respondent was largely successful. The respondent seeks $5,500 in costs all-inclusive for the motion including the appearances before Matheson J. and me. The applicant’s costs were over $6,000 all-in and that did not include any time to prepare a factum. Accordingly, the amount claimed by the respondent is well within the amount that the applicant should reasonably have expected to pay if unsuccessful.
13Mr. Grant is to submit a draft order revised as above for signature. It should include a provision that the applicant forthwith pay costs to the respondent of $5,500 all-in.
F.L. Myers J.
Date: January 25, 2016