Court File and Parties

Newmarket Court File No.: FC-17-54643-00 Date: 2018-10-22 Superior Court of Justice - Ontario

Re: Adam Ivan Hand, Applicant And: Kimberley Michelle Hand, Respondent

Before: The Honourable Mr. Justice D.A. Jarvis

Counsel: J. Edney, Counsel for the Applicant K. Dosanjh, Counsel for the Respondent

Heard: September 13, 2018

Ruling on Motion

[1] The applicant (“the father”) moves for summary judgment against the respondent (“the mother”) claiming that the parties settled their family law dispute when the father accepted what he describes was an Offer to Settle from the mother.

Procedural Background

[2] On September 12, 2018 there were five motions by the father before the court for a broad range of relief. McGee J. heard two motions that day. The first dealt with the mother’s breach of an earlier Order of this court prohibiting her from changing the children’s habitual residence: the second dealt with the father’s request that the parties’ children be registered in a local school near where they lived when their parents separated. That ruling was reserved. The other three motions, one of which involved whether the parties had entered into a binding settlement, were adjourned for argument before me on the next day. At that time, only the father’s summary judgment motion proceeded, and that ruling was also reserved.

[3] On September 21, 2018 McGee J. ruled that while there was “no question” that the mother had breached two Orders of the court with respect to changing the children’s residence more robust evidence was needed about the current circumstances and best interests of the children. The mother had acted with “deceit”. She had moved from the City of Vaughan to Phelpston, Ontario, north of Barrie- about an hour’s driving distance from where the children lived when the court Orders were made. An Order was made appointing the Children’s Lawyer on an urgent basis. Temporary joint custody was ordered and specific parenting directions given. The chronology referenced by McGee J. in her Ruling principally focussed on the circumstances surrounding the children’s residencies, schooling and the mother’s misconduct.

Evidence

[4] These are the facts, and evidence, relevant to this summary judgment motion:

(a) the parties married on September 20, 2008 and separated on June 7, 2016; (b) there are two children of the marriage, a daughter (almost 8 years old) and a son (almost 6 years old); (c) the parties retained counsel after they separated. Outstanding issues involved property, parenting and support. Negotiations followed; (d) in March 2017 the parties successfully mediated their parenting dispute. The mediator prepared a Memorandum of Understanding (“MOU”) comprising a Parenting Plan; (e) in May 2017 the father’s counsel sent a draft, proposed separation agreement to the mother’s counsel. This draft incorporated the essential terms of the Parenting Plan and additional financial terms intended to resolve the parties’ affairs; (f) in the course of their subsequent exchange of correspondence, counsel for the mother sent a letter to the father’s counsel on July 10, 2017 that represented that the mother was prepared to sign the proposed agreement provided that three revisions to its terms were made. These included a rescheduling of a further mediation, a neutral location for the exchange of the children and a sharing of the children’s s. 7 special or extraordinary expenses. The father has described this letter as an Offer to Settle but it is clear that it was not a Family Law Rule 18-compliant offer; (g) on July 25, 2017, counsel for the father sent a revised draft of the agreement that proposed a different exchange location and indicated that the father was not prepared to contribute to the children’s s. 7 expenses as proposed by the mother; (h) in spite of their earlier, and proposed further, mediation, the parties’ interactions were acrimonious. The mother was frustrated by the father’s refusal to pay child support and by what she felt was unacceptable delay in an agreement being finalized; (i) the mother changed counsel. On August 3, 2017 the mother’s new counsel advised the father’s counsel in writing of her retainer and requested that child support be paid right away, failing which the mother would start legal proceedings. It is clear from that letter that there remained important differences between the parties about child support, in particular, payment of s. 7 expenses; (j) on August 15, 2017 counsel spoke by telephone. An electronic copy of the draft separation agreement was requested by, and immediately sent to, the mother’s counsel; (k) on August 25, 2017 the father’s counsel sent to the mother’s counsel a revised separation agreement that incorporated the revisions which the mother had requested in her former counsel’s July 10, 2017 letter. The covering letter claimed that “[t]his matter is now resolved”; (l) the mother’s counsel acknowledged receipt of the August 25, 2017 letter and revised agreement and indicated in a letter dated September 20, 2017 that her client “would be seeking to resolve the issues as opposed to commencing legal proceedings…” While there is no specific rebuttal to the father’s claim that the parties’ outstanding issues had been resolved, it is clear from counsel’s letter that the mother rejected the father’s “version of the Separation Agreement” dealing with child support; (m) the father started these proceedings in mid-October 2017 when he concluded that the mother would not sign the agreement sent to her lawyer. In his Application, the father alleged that a settlement had been effected by his acceptance on August 25 of the revisions to the proposed agreement that the mother had requested in her counsel’s letter of July 10. He sought a declaration to that effect; (n) in her Answer dated November 6, 2017, the mother denied that that there had been any settlement and claimed that her counsel had “never ( sic ) any such said letter”, referring to the August 25 letter from the father’s counsel; (o) at an Emergency Case Conference held on November 14, 2017 MacPherson J. noted that the father contended that there had been an offer and acceptance and that counsel for the mother maintained that “there was no acceptance. Rather, there was a counter-offer”; (p) the father delivered a Reply on December 11, 2017. In consenting to the father’s late-filing of that pleading, the mother’s counsel brought to the attention of father’s counsel on December 15, 2017 the existence of a letter dated August 16, 2017 from her offices to the father’s counsel that stated that the mother’s settlement position as reflected in the July 10, 2017 letter from her previous counsel had been “revoked”. In her submissions to this court, counsel for the mother said that she was not prepared to disagree with father’s counsel that his offices had no record of ever having received that letter.

[5] The father claims that the circumstances surrounding the existence and transmission of an August 16, 2017 letter from the mother’s counsel to his counsel resiling from the mother’s July 10, 2017 settlement position are “highly suspicious” and inconsistent with the mother’s pleadings and the representations made to counsel and the court before its existence was brought to the attention of the father’s counsel four months later.

Law and Analysis

[6] Family Law Rule 16 deals with motions for summary judgment. Subrules (6), (6.1), (8), (9) and (12)(a) are relevant and provide as follows,

NO GENUINE ISSUE FOR TRIAL

(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly. O. Reg. 114/99, r. 16 (6) .

POWERS

(6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence. O. Reg. 69/15, s. 5 (1).

ONLY ISSUE QUESTION OF LAW

(8) If the only genuine issue is a question of law, the court shall decide the issue and make a final order accordingly. O. Reg. 114/99, r. 16 (8).

ORDER GIVING DIRECTIONS

(9) If the court does not make a final order, or makes an order for a trial of an issue, the court may, in addition to exercising a power listed in subrule 1 (7.2), (a) specify what facts are not in dispute, state the issues and give directions about how and when the case will go to trial (in which case the order governs how the trial proceeds, unless the trial judge orders otherwise); (b) give directions; and (c) impose conditions (for example, require a party to pay money into court as security, or limit a party’s pretrial disclosure). O. Reg. 114/99, r. 16 (9); O. Reg. 69/15, s. 5 (2, 3).

MOTION FOR SUMMARY DECISION ON LEGAL ISSUE

(12) The court may, on motion, (a) decide a question of law before trial, if the decision may dispose of all or part of the case, substantially shorten the trial or save substantial costs.

[7] The issue for this court is whether a fair and just adjudication proportionate to the particular circumstances of this case can be made without a trial [1]. Specifically, is there a settlement and, if so, should it be enforced. In my view, there was a settlement but I decline to enforce it.

[8] Firstly, the July 10, 2017 letter from the mother’s counsel unambiguously said that, subject to three revisions to the agreement sent to her counsel, the mother was prepared to sign it. The father accepted these revisions in his counsel’s August 25, 2017 letter.

[9] Secondly, the evidence falls short of proving that the mother resiled from her July 10 qualified acceptance of the proposed agreement. Counsel for the father dismissed the relevance of the August 16, 2017 letter faxed from the mother’s counsel because, as a matter of contract formation, the mother bore the risk of that letter not being successfully communicated by facsimile transmission to the father’s counsel. [2] The evidence is that the father and his counsel were unaware of that letter until December 15, 2017.

[10] Thirdly, it is puzzling that in spite of the father’s pleading that there was an accepted settlement based on the exchange of correspondence between counsel on July 10 and August 25, 2017, the mother never referenced revocation in her November 6, 2017 Answer, did not appear to have raised it at the November 14, 2017 case conference as appears from the endorsement made then, and only raised it after delivery of the father’s Reply [3]. The mother’s Answer principally focussed on denying that she had signed a separation agreement. The unintelligible reference in the Answer to receipt, or non-receipt, of the August 25, 2017 letter from father’s counsel is equally puzzling as it is clear from the letter from mother’s counsel dated September 20, 2017 that she had a copy of it.

[11] Accordingly, there is no admissible evidence that the mother was not prepared to sign a separation agreement that included the revisions that her former counsel proposed on July 10, 2017. The agreement sent by the father’s counsel on August 25, 2017 resolved all of the substantive issues between the parties. A settlement was reached.

[12] Even so, where there is a settlement whether by an Offer and Acceptance pursuant to the Family Law Rules, an exchange of letters between counsel or, as in this case, a party accepting the other party’s revisions to a proposed agreement, the Court has a discretion to refuse to grant judgment. But that discretion is limited. In Bailey v. Plaxton [4], a wife was surprised when her husband accepted an offer to settle that she had made [5]. Mesbur J. granted the husband summary judgment enforcing the settlement.

[15] Cases where the court has exercised its discretion, and refused to grant judgment in accordance with an accepted offer, are limited to circumstances like [6]:

• a mistake in the instructions;
• a settlement concluded by mistake, because the offer was mistakenly accepted;
• an acceptance of an offer made years before the acceptance;
• essential terms of the offer are left open for future negotiations;
• no intention to create a binding settlement agreement.

[13] In Smith v. Robinson (1992) [7] and in McIntosh v. Smith [8], both of which Mesbur J. referenced in her decision, the court in each case declined to grant judgment on offers accepted several years after they were made in circumstances where new counsel had been retained, and they were unaware of the earlier offers. There were many intervening steps or case events. The court considered, and weighed, the prejudice to each party and ruled that enforcing settlement would be unfair. While there was no such passage of time in this case as in those cases, neither of them involved children.

[14] The proposed Separation Agreement in this case provides for joint custody, flexible and generous parenting time of the children and includes a mobility restriction. It incorporated most of the MOU/Parenting Plan terms. But the children’s circumstances have materially changed since August 2017. In light of the mother’s changing of the children’s residency in the way that she did and her vociferous diminishing of the father’s importance in the children’s lives as observed by McGee J. in her Ruling, it would not be in the interests of justice, certainly not in the best interests of the children, to grant judgment as requested by the father without a trial. In addition, it was the absence of current information about the children that led to the Order made by McGee J. adjourning the issue of the children’s 2019 school placement until after the OCL was involved. Granting judgment to the father now would conflict with that Order given the terms of the August 25, 2017 Separation Agreement.

Disposition

[15] The father’s motion for summary judgment is dismissed.

[16] The father’s motion (Volume 6, Tab 1 of the Continuing Record) dealing, among other relief requests, with the mother’s undertakings and access to the computer used to generate the August 16, 2017 letter from the wife’s counsel is adjourned to a date to be scheduled through the court offices. As noted in my endorsement made on September 13, 2018 when the summary judgment motion was argued, no ruling was needed with respect to the father’s motion (Volume 5, Tab 2 of the Continuing Record) to strike the affidavit of Glenda Lewis, the employee of the mother’s counsel who swore on January 30, 2018 that she prepared the August 16, 2017 letter, because neither counsel relied on that affidavit before me. Any return of that motion should also be scheduled through the court offices.

[17] This is not a case for costs.

Justice David A. Jarvis Date: October 22, 2018

Footnotes

[1] Hyrniak v. Mauldin, 2014 SCC 7, 2014 CarswellOnt 640, 2014 SCC 7, [2014] 1 S.C.R. 86, [2014] S.C.J. No. 7, 12 C.C.E.L. (4th) 1, 21 B.L.R. (5th) 248, 27 C.L.R. (4th) 1 314 O.A.C. 1, 366 D.L.R. (4th) 641, 37 R.P.R. (5th) 1, 453 N.R. 51, 46 C.P.C. (7th) 217, 98 E.T.R. (3d) 1

[2] Joan Balcom Sales v. Poirier, 1991 NS SC 13710, 1991 CarswellNS 81, [1991] N.S.J. No. 617, 106 N.S.R. (2d) 377, 288 A.P.R. 377, 28 A.C.W.S. (3d) 551, 49 C.P.C. 180; also Eastern Power Ltd. V. Azienda Communale Energia & Ambiente, 1999 ON CA 3785, 1999 CarswellOnt 2807, [1999] O.J. No. 3275, 125 O.A.C. 54, 178 D.L.R. (4th) 409, 39 C.P.C. (4th) 160, 50 B.L.R. (2d) 33, 82 O.T.C. 313, 90 A.C.W.S. (3d) 862

[3] Counsel for the mother delivered an affidavit sworn on August 29, 2018 that dealt substantively with the subject matter of the husband’s motion. No reference to, or reliance on, the contents of that affidavit was made by mother’s counsel. A lawyer cannot be both an advocate and witness in the same case: Imperial Oil v. Grabarchuk (1974), 1974 ON CA 869, 3 O.R. (2d) 783 (C.A.)

[4] Bailey v. Plaxton, 2001 ON SC 28180, [2001] O.J. No. 1111, [2001] O.T.C. 191, 15 R.F.L. (5th) 16, 104 A.C.W.S. (3d) 67 (Ont. S.C.J.)

[5] The parties were divorced before the wife brought her application for spousal support. The references to the parties as wife and husband are for convenience only.

[6] Cases referenced by Mesbur J. with respect to each of the listed circumstances have not been included, except where otherwise noted in this Ruling.

[7] (1992), 1992 ON SC 7504, 7 O.R. (3d) 550, [1992] O.J. No. 36 (Ont. Ct. Gen. Div.)

[8] McIntosh v. Smith, 1995 CarswellOnt 1213, [1995] O.J. No. 3067, 43 C.P.C. (3d) 107, 58 A.C.W.S. (3d) 573, 6 W.D.C.P. 440 (Ont. Ct. Gen. Div.)