Court File and Parties
COURT FILE NO.: FC-12-40761-00 DATE: 20190625 SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT
RE: Aura Aberback, Applicant AND: Jason Bellin, Respondent
BEFORE: The Honourable Mr. Justice G.A. MacPherson
COUNSEL: A. Birman, Counsel for the Applicant M. Morningstar, Counsel for the Respondent
HEARD: June 12, 2019
Ruling on Summary Judgment Motion
[1] The Respondent brings a motion, pursuant to Rule 16(12) of the Family Law Rules, O. Reg. 114/99 as amended, for summary judgment in respect of a legal issue. The Respondent requests a final order in accordance with the parties’ settlement agreement dated October 22, 2018.
[2] The Applicant states there was no settlement agreement, that all discussions on October 22, 2018 were settlement related discussions only. The Applicant requests the herein motion be dismissed.
[3] For the reasons that follow, the Respondent’s motion is dismissed.
Background Facts
[4] The litigation proceedings commenced in May, 2012. The claims outlined by both parties in their respective pleadings include: spousal support, equalization, exclusive possession of the matrimonial home and exclusive possession of the contents of the matrimonial home.
[5] A significantly contentious issue is the date of separation. The Applicant takes the position that the date of separation was September 1, 2010 and the Respondent takes the position that the date of separation was January 10, 2012. This dispute has made finding a resolution, particularly with respect to equalization, challenging.
[6] Although determination of the date of separation is outside the scope of this motion, I offer the following comments to assist the parties. On June 5, 2012 in her endorsement, Justice Hughes stated:
The R[espondent] did not dispute the following facts set out in the affidavit of the Applicant sworn 30 May, 2012:
- That on the 19 April, 2011 the date he swore to the truth of his statement of affairs pursuant to the Bankruptcy Act, it was true that his marital status was separated and the date of separation was 10 / 2010. The R[espondent] initially stated under oath that the parties reconciled on the 15 Mar [20]11 when he moved in with the A[pplicant] at 700 Summeridge Dr. When it was pointed out to him that his evidence was inconsistent with his affidavit sworn over a month later pursuant to his bankruptcy, he changed his evidence and stated that it was his intention to reconcile with the A[pplicant] when he moved in with her on 15 Mar [20]11.
[7] It is surprising, therefore, that the date of separation is still contentious and continues to be litigated.
[8] On October 22, 2018 the parties attended a settlement meeting. The Applicant was representing herself. The Respondent was represented by counsel, Mr. Nussbaum. The Settlement Conference was held at the law office of Mr. Nussbaum. In attendance were the Applicant, Respondent and Mr. Nussbaum.
[9] The Respondent argues that the parties resolved, in principle, the details of a settlement. Nothing was signed on that date. Rather, following conclusion of the settlement meeting Mr. Nussbaum sent an email to the Applicant as follows:
Ms. Aberback,
I confirm that this afternoon we had an all party meeting to attempt to settle your matrimonial matter. In attendance were Jason, you and I. This email shall confirm that the parties agreed to settle all outstanding issues arising or that could have arisen out of the above noted proceeding. Specifically, the parties have agreed to settle the equalization of property and spousal support issues as follows:
Aura will pay to Jason $111,000 within 15 days, payable as follows: $106,000 payable to Jason directly and $5,000 payable to Nussbaum Law Office in Trust. The parties will, IN GOOD FAITH, facilitate the transfer of personal property each has in their respective possession, of the other and to the other. The parties will communicate by email and CC Barry Nussbaum regarding the exchange of personal property. The parties will negotiate the exchange of personal property, however, neither shall attend the other’s residence without permission in advance. Nussbaum Law Office will draft a formal consent to be executed by the parties incorporating the above substantive terms, which will expand upon the foregoing and include general release clauses. Nussbaum Law Office will, thereafter, draft and have issued a final order finalizing this matter.
By responding to this email, Aura confirms the foregoing.
[10] Later that same date there was an email exchange between the parties and Mr. Nussbaum confirmed that the payment of $111,000 would occur within 21 days rather than the 15 days set out in the email. In response to that email, the Applicant sent an email stating “Confirmed and thank you.”
[11] The Applicant, over the next several days and weeks, sent emails asking when the draft agreement would be ready. She sent emails on October 26, 2018 and November 12, 2018.
[12] The Applicant states in her affidavit sworn June 2, 2019 that she wanted to bring the draft agreement to counsel. She provided evidence that it was her impression that as long as she did not sign anything at the settlement discussion, she was only meeting with the Respondent to hear what he had to say and to try and settle the matter.
[13] No draft agreement was ever sent to the Applicant.
[14] On November 28, 2018 the Respondent sent an email to the Applicant that stated in part:
On the positive side, we have resolved to share the cost of settlement agreement, and you have agreed to pay me $111,000. The issue of exchanging property seems to be at an impasse. To reiterate my position, there is a court order issued against you for me to peruse through the entire Summeridge property for the purpose of making a list of my personal items and we can negotiate what I would like to have. It is my belief that a court order takes precedence over all documents that are not court ordered. In paragraph 7 of your offer to me, you want me only to accept a chair, a light, a cart, and a toolbox. Unfortunately that is unacceptable to me. There are many personal items that were left behind on moving day that should still be in the house, and was court ordered by Justice C. Nelson on November 16, 2012; ‘Neither Party shall dissipate Net Family Property in his or her possession.’ It is my opinion there are three ways we can handle this situation. 1. You will provide me with dates to peruse through the Summeridge property, as per the court order against you. 2. You will pay me an additional $25,000.00 to agree to set aside the court orders and agree to allow me to pick up fifteen liquor boxes, a La-Z-boy recliner, a double stacked industrial tool chest, a bbq cart, a black cast iron wok, a propane heater, Seadoo inner tube, golf umbrellas. 3) We will go to court and have a judge make a ruling. If you have any other reasonable suggestions, I am open to hearing them. If you do not choose one of the three choices above, or do not present an acceptable and productive alternative, then I will request court dates so that a judge can help us resolve this last issue of personal property.
Law
[15] Rule 16(12) of the Family Law Rules states as follows:
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;
(b) strike out an application, answer or reply because it sets out no reasonable claim or defence in law; or
(c) dismiss or suspend a case because,
(i) the court has no jurisdiction over it,
(ii) a party has no legal capacity to carry on the case,
(iii) there is another case going on between the same parties about the same matter, or
(iv) the case is a waste of time, a nuisance or an abuse of the court process. O. Reg. 114/99, r. 16 (12).
[16] Section 51 of the Family Law Act, R.S.O. 1990, c F.3 defines a domestic contract as:
“cohabitation agreement” means an agreement entered into under section 53; (“accord de cohabitation”)
“domestic contract” means a marriage contract, separation agreement, cohabitation agreement, paternity agreement or family arbitration agreement; (“contrat familial”)
“family arbitration” means an arbitration that,
(a) deals with matters that could be dealt with in a marriage contract, separation agreement, cohabitation agreement or paternity agreement under this Part, and
(b) is conducted exclusively in accordance with the law of Ontario or of another Canadian jurisdiction; (“arbitrage familial”)
“family arbitration agreement” and “family arbitration award” have meanings that correspond to the meaning of “family arbitration”; (“convention d’arbitrage familial”, “sentence d’arbitrage familial”)
“marriage contract” means an agreement entered into under section 52; (“contrat de mariage”)
“paternity agreement” means an agreement entered into under section 59; (“accord de paternité”)
“separation agreement” means an agreement entered into under section 54. (“accord de séparation”) R.S.O. 1990, c. F.3, s. 51; 2006, c. 1, s. 5 (6, 7).
[17] Section 54 of the Family Law Act defines separation agreements broadly:
- Two persons who cohabited and are living separate and apart may enter into an agreement in which they agree on their respective rights and obligations, including,
(a) ownership in or division of property;
(b) support obligations;
(c) the right to direct the education and moral training of their children;
(d) the right to custody of and access to their children; and
(e) any other matter in the settlement of their affairs. R.S.O. 1990, c. F.3, s. 54; 1999, c. 6, s. 25 (24); 2005, c. 5, s. 27 (27).
[18] Section 55 of the Family Law Act states as follows:
55 (1) A domestic contract and an agreement to amend or rescind a domestic contract are unenforceable unless made in writing, signed by the parties and witnessed. R.S.O. 1990, c. F.3, s. 55 (1).
Analysis
[19] In order for the agreement to be a domestic contract, pursuant to section 55 of the Family Law Act, there must be an agreement, in writing, signed by the parties and witnessed. This is not one of those cases.
[20] Before entering into a discussion about settlement agreements made in the course of litigation it is important to discuss a contractual agreement, generally. In order for there to be an agreement, there must be a meeting of the minds, on all essential elements, with an agreement that those terms be incorporated into a formal document.
[21] In Geropolous v. Geropolous, 35 O.R. (2d) 763, the Court of Appeal was asked to decide whether an agreement contained in an exchange of correspondence between solicitors settling the claims in an action brought pursuant to the Family Law Reform Act, R.S.O. 1980, c. 152, was enforceable.
I share the view that settlement agreements concluded by solicitors or counsel resolving outstanding claims in pending litigation under the Act are beyond the reason and purview of s. 54(1). The formal requirements laid down by the section are intended to ensure that asserted domestic contracts, be they marriage contracts (s. 51), cohabitation agreements (s. 52) or separation agreements (s. 53), are reduced to writing and in fact agreed to by the parties as evidenced by their witnessed signatures; this in essence is a statute of frauds type provision made referable to domestic contracts by the Family Law Reform Act.
In my opinion, the section plainly is not aimed at or intended to apply to authorized settlement agreements like the present, made with legal advice during the pendency of court proceedings which, to be effective, require the intervention of the court. Such agreements derive their effect from an act of the court; their authenticity is assured by the court's supervision and control over them; and ample protection is afforded the parties to these agreements, wholly independent of the section. The court's jurisdiction to enforce settlements or refuse to do so, notwithstanding any agreement between solicitors or counsel, is well established; whether they should be enforced or not, in the final analysis, is a matter for the discretion of the court and, in litigation under the Family Law Reform Act, a matter that would be subject to the court's overriding jurisdiction with respect to domestic contracts; Scherer v. Paletta, supra; 3 Halsbury's Laws of England, (4th ed.), paras. 1182-3; and ss. 18(4) and 55 of the Act. [Emphasis added]
[22] In Gallacher v. Friesen, 2014 ONCA 399, 371 D.L.R. (4th) 522, the Court of Appeal reviewed the law pertaining to s. 55(1). Although related to a different fact scenario (the issue was whether the witness was present when the appellant signed the domestic contract), the court’s comments at paras. 25-27 are instructive:
The appellant submits that the syntax of s. 55(1) supports a strict reading of the provision. He asserts that the general premise of the provision is that all domestic contracts are unenforceable, with an exception for domestic contracts that comply with the necessary formalities of execution.
The appellant's approach to s. 55(1) of the FLA is inconsistent with this court's observation in Bosch v. Bosch that the legislature intended to encourage rather than discourage domestic contracts. A strict reading of s. 55(1) would also be inconsistent with this court's recent judgment in Virc v. Blair, 2014 ONCA 392. There, Pepall J.A. came to the conclusion that in comparison with s. 4(1) of the Succession Law Reform Act, R.S.O. 1990, c. S.26, the language of s. 55(1) of the FLA allows for a less strict application of the witnessing requirement.
Justice Pepall's decision in Virc v. Blair is consistent with a substantial body of case law in Ontario, and in other provinces with similar legislation, holding that the strict requirements of s. 55(1) may be relaxed where the court is satisfied that the contract was in fact executed by the parties, where the terms are reasonable and where there was no oppression or unfairness in the circumstances surrounding the negotiation and execution of the contract.” [Emphasis added]
[23] I have determined that the parties have not entered into a binding agreement for the following reasons:
(a) There was no consensus on the essential terms. How could there be consensus when the terms of the agreement are so vague? In order to reach a consensus, the terms of an agreement must be clear enough to give effect to the reasonable expectations of the parties. Further, there was not an agreement on all essential terms when one of the terms includes “the parties will negotiate the exchange of personal property….” The lack of agreement on terms is illustrated by the email from the Respondent indicating that he wanted an additional $25,000 or a grocery list of furniture and other property, which he acknowledges that they do not have agreement on, or the matter would return to court. There can be no agreement on “equalization and spousal support” when there is an outstanding disagreement on the property issues.
(b) What does $106,000 in the agreement consist of? What is the equalization? What is the spousal support? How can the court be satisfied that the agreement was reasonable? The terms in the agreement are insufficient to permit the inquiry.
(c) Finally, the Applicant was not afforded an opportunity to obtain Independent Legal Advice. She provided evidence that she expected to have any agreement reviewed by counsel first. Where one party is self-represented, she must be afforded an opportunity to obtain Independent Legal Advice. ILA would ensure that the litigant has informed consent. Informed consent would include the nature of general release conditions and the necessity for Miglin releases in the context of spousal support resolutions. I do not believe, in the absence of ILA, that the Applicant had informed consent.
[24] The motion brought by the Respondent is dismissed.
Costs
[25] If the parties cannot agree on the issue of costs, I shall consider the request for costs. The Applicant shall serve on the Respondent and file in the Continuing Record her written submissions, limited to two pages, exclusive of the Bill of Costs and Offers to Settle within 20 days of the date of this decision. The Respondent shall serve on the Applicant and file in the Continuing Record his written submissions, limited to two pages, exclusive of the Bill of Costs and Offers to Settle within 15 days thereafter. The Applicant’s Reply, if necessary, shall be within 5 days of the delivery of the Respondent’s written submission and limited to one page. If no submissions are received within the time period set out herein, there will be no costs.