Court File and Parties

COURT FILE NO.: 51250-16 DATE: 2018-06-26 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: JARED ALEXANDER HILLIS, Applicant AND: MICHAELA DESIREE HILLIS, Respondent

BEFORE: The Honourable Mr. Justice P.J. Flynn

COUNSEL: Glenda D. McLeod, Counsel for the Applicant Brian R. Kelly, Counsel for the Respondent

HEARD: April 27, 2018

Endorsement

[1] The Applicant first brought a motion for the partition and sale of the matrimonial home.

[2] So the Respondent countered with a motion for expenses and occupation rent.

[3] The parties entered into a period of negotiation.

[4] Then Respondent’s counsel made a formal Offer to Settle in writing meant to settle all issues, which Applicant’s counsel accepted. The Offer was not signed personally by the Respondent as subrule 18(4) requires.

[5] The parties then took steps in furtherance of their intended agreement.

[6] Then the Respondent replaced the lawyer who made the Offer for her. The new lawyer, relying on strict compliance with subrule 18(4) says there was no offer capable of acceptance and purports to withdraw it – renegs.

[7] It is important to remember that the Offer was made by the Respondent.

[8] In my view, the Respondent’s new lawyer’s position is too cute by half.

[9] Now, the Applicant seeks Summary Judgment validating acceptance of an Offer to Settle that does comply with the mandatory requirements by subrule 18(4).

Family Background

[10] After a not insignificant period of cohabitation, the parties married on May 25, 2013.

[11] There are two children of the marriage:

(i) Skylar Olivia Hillis (female), born 27 July 2013 (5); and (ii) Michael Xavier Hillis (male), born 10 January 2016 (2).

[12] The parties are joint owners of the matrimonial home at 80 Barrie Street, Cambridge, Ontario.

[13] They separated on January 25, 2015. Following separation, the Respondent and children moved in with the Respondent’s mother in Kitchener, while the Applicant remained in the matrimonial home where he still resides to date.

[14] The Respondent argues against summary judgment validating and enforcing the “agreement”. For this, she relies entirely on the ruling of my brother Quinn J. in Riss v. Greenough, [2003] 2224 (ONSC) at para. 32 that the “straightforward, uncomplicated requirement” of subrule 18(4) “is also mandatory. The lack of a signature by counsel is sufficient to invalidate the offer”.

[15] The Respondent argues by extension that if either signature (counsel or party) is missing there is no offer. And if there is no offer, there can’t be acceptance – or contract.

[16] But this case is different than Riss.

[17] The parties had engaged in extensive negotiations and had the assistance of a clinical investigator in the Office of the Children’s Lawyer.

[18] The “Offer” by the Respondent to settle all issues made July 20, 2017, was accepted by the Applicant on November 13, 2017.

[19] I agree with the Applicant that there are different routes to a contract that don’t always require compliance with subrule 18(4). Using the ordinarily understood principles of contract law, it is clear to me that there was offer and acceptance and hence a valid and binding agreement.

[20] The parties were no strangers to contractual overlay of their family relationship. They entered into a formal Cohabitation Agreement in May 2012, prior to the commencement of their cohabitation.

[21] They knew that their lives together were governed by contract.

[22] That Cohabitation Agreement dealt with their separate property regimes and provided that the Respondent would recover her initial $12,000 investment in the matrimonial home before the equity was divided equally.

[23] And in the disputed Offer, the parties dealt with the division of the equity and the Respondent’s recovery of her $12,000 down payment.

[24] Besides dealing with the disposition of the matrimonial home, the disputed offer dealt in detail with custody and access of the two children (status quo to continue), child support, exchange of financial information and the foregoing of certain other claims. It also provided that the terms be incorporated with the Minutes of Settlement to be further incorporated into a Court Order.

[25] Applicant’s counsel prepared and provided those draft Minutes shortly after the Respondent’s acceptance.

[26] There was some jigging of the language of that document by the parties’ counsel.

[27] Then, the Respondent changed counsel and lo and behold! her new counsel disapproved of the draft Minutes and entered the fray demanding that the Minutes be tailored to be precisely consistent with “the offer your client claims to have accepted”.

[28] Mr. Kelly further wrote: “If you are not prepared to proceed on the foregoing basis in accordance with the terms of the Offer to Settle …”.

[29] This clearly illustrates that both parties knew that they had a deal but had different takes on its details.

[30] In that correspondence Mr. Kelly urges a speedy conclusion to the parties’ finalizing of details, so that financing could be quickly completed with respect to the transfer of interests in the matrimonial home.

[31] The back and forth tinkering with the Minutes continued into 2018.

[32] It seems to me that after the Applicant had accepted her Offer, the Respondent had second thoughts and that those second thoughts were occasioned by the only material change in the parties’ circumstances: her new counsel.

[33] Regardless of Mr. Kelly’s clever reliance on his own client’s failure to sign the Offer in accordance with sub Rule 18(4), it is my view that the parties had agreed on all the essential provisions of the contract when the Applicant accepted the Respondent’s Offer.

[34] The Respondent knew what the intended contract was. It was her Offer, with her provisions.

[35] And while all final documents reflecting this deal are not complete, there is agreement on all essential terms. And these parties should be held to their bargain.

[36] This was an unequivocal acceptance of a detailed and unequivocal offer made by the Respondent.

[37] In my view, at the time of the Applicant’s acceptance, there was a manifest consensus ad idem between the parties on all the material terms of the Agreement. This was not conditional upon and subject to the execution of a formal contract.

[38] In short, the parties formed a binding agreement, based on a fully accepted Offer put forward by the Respondent.

[39] In my view, there is no genuine issue requiring a trial. The outcome here is a foregone conclusion and a trial would be a waste of time and resources.

[40] Because I am granting the Applicant’s motion for Summary Judgment, there is no need to rule on the motion for partition and sale or the counter motion for expenses. Those motions are dismissed.

[41] Accordingly, there shall be an Order satisfying the agreement between the parties based on the accepted Offer made by the Respondent herein, as follows:

CUSTODY AND RESIDENCY

i. The Applicant, Jared Alexander Hillis and the Respondent, Michaela Desiree Hillis shall have joint legal custody of the children, Skylar Olivia Hillis (female), born July 24, 2013 and Michael Xavier Hillis (male), born January 10, 2016 (and the usual joint decision making regarding children’s health, education, and welfare, etcetera ), and their primary residence shall remain with the Respondent. ii. The Applicant shall have access to the children for two (2) weeknights (to be agreed upon) and every other weekend (Saturday and Sunday). iii. In the event that the Applicant cannot care for the children for a period of four (4) hours, the Respondent shall have a right of first refusal and if she is unable to accommodate same, the Applicant shall make third party caregiver arrangements at his cost. Make-up access will be accommodated as much as possible iv. Holiday and special occasions shall be shared and agreed upon in advance such that the children will benefit from having time with both sides of the families. v. Vacation times (summer and throughout the calendar year) shall consist of minimally seven consecutive days with a maximum of fourteen consecutive days, to be requested and agreed upon in advance. The parties will sign any travel consents, passport requests, etcetera , as required, and in a timely fashion. vi. The Applicant shall not consume drugs or alcohol prior to or while in a caregiving role. vii. The child, Xavier’s Birth Certificate shall be amended to name the Applicant as the biological father and the Applicant shall sign any paper necessary to give effect to the same.

CHILD SUPPORT / SPECIAL EXTRAORDINARY EXPENSES / HEALTH BENEFITS / LIFE INSURANCE

viii. The Applicant shall pay child support in the amount of $750.00 per month, with one-half ($375.00) to be paid on the 1st and 15th of each month. ix. The Applicant and the Respondent shall equally share the children’s extraordinary expenses related to sports, childcare, dance, etcetera . x. The Applicant and the Respondent shall maintain health benefits and life insurance for the benefit of the children. xi. The Applicant and the Respondent shall exchange the usual financial disclosure in accordance with the Federal Child Support Guidelines on or before July 1st of each year commencing July 1, 2018. Any adjustments to child support shall be made on August 1st of each year, commencing August 1, 2018. xii. There shall be no arrears of child support payable by one party to the other.

SPOUSAL SUPPORT / EQUALIZATION OF NET FAMILY PROPERTY

xiii. The Applicant and the Respondent shall release the other regarding spousal support and equalization of net family property pursuant to the parties’ Cohabitation Agreement, dated May 28, 2012.

MATRIMONIAL HOME

xiv. The Applicant shall pay to the Respondent the sum of $105,541.50 being $93,541.50 for her one-half interest in the matrimonial home plus $12,000.00, calculated as follows:

Assessed value: $420,000.00 Less mortgage (rounded): $232,917.00 Subtotal: $187,083.00 50% share to each party: $ 93,541.50

xv. The Respondent shall also recover her $12,000.00 down payment on the home, such that the total owing to her would be $105,541.50 within 60 days of November 13, 2017. xvi. The Applicant shall be responsible for transferring title of the home at his own cost and refinancing the mortgage and the Respondent shall sign any paperwork necessary to give effect to the same. xvii. There shall be no occupation rent payable by the Applicant to the Respondent.

COSTS

xviii. The Applicant shall pay the sum of $2,500.00 for costs to the Respondent in addition to the payments described above.

Costs of These Motions

[42] The Applicant has been fully successful and, barring any unusual circumstances, should be entitled to his costs. Accordingly, the Applicant shall deliver to my Kitchener Chambers on or before July 20, 2018, his Costs Outline, not augmented by more than 4 pages, Bill of Costs and any relevant Offers to Settle; and the Respondent, on or before August 10, 2018, shall likewise deliver to my Kitchener Chambers, her Costs Outline, not augmented by more than 4 pages, her Bill of Costs and any relevant Offer to Settle.

P.J. Flynn J. Date: June 26, 2018