Court File and Parties

Court File No.: FC-19-1016 Date: 2021/02/22 Superior Court of Justice - Ontario

Re: Kimberly Amber O’Connor, Applicant And Ken Duguay, Respondent

Before: Justice R. Ryan Bell

Counsel: François Kasenda Kabemba, for the Applicant Laura Pilon, for the Respondent

Heard: In writing

Costs Endorsement

[1] On October 9, 2020, I granted the respondent father’s motion and ordered that the parties’ son attend in-person kindergarten. I dismissed the mother’s motion. My endorsement provided that if the parties were unable to agree on costs of the motions, they would be permitted to make written submissions within 10 days. If no submissions were received within this timeframe, the parties would be deemed to have settled the issue of costs.

[2] Neither party provided costs submissions to the court. According to the respondent, submissions were not provided because the parties reached an agreement on costs: the applicant would pay the respondent costs of the motions in the amount of $3,000 at the rate of $150 per month. I have been provided with email correspondence between counsel for the respondent and the applicant’s former counsel as well as documents evidencing e-transfers from the applicant to the respondent for the months of November and December 2020, both in the amount of $150. The applicant has not made any additional payments with respect to costs.

[3] At a settlement conference on January 28, 2021, Roger J. directed the parties to write to the motions judge to resolve the issue of costs.

[4] The respondent seeks to enforce the agreement he says was reached between the parties.

[5] The applicant states that she did not agree to costs in the amount of $3,000 and that she cannot afford to pay this amount. She also claims that her previous counsel “pressured” her to pay the monthly amount of $150. The applicant’s position is that each party should bear their own costs of the motions or, alternatively, that the applicant pay costs in the amount of $500.

[6] The email correspondence between counsel confirms, unequivocally, that there was a settlement reached between counsel acting on behalf of their respective clients. The terms of the agreement require the applicant to pay the respondent the total amount of $3,000, in monthly payments of $150. On October 16, 2020 (within the 10-day period provided by the court for the resolution of costs), counsel for the respondent inquired of then counsel of record for the applicant whether “[the applicant is] prepared to accept a reduction in child support by $150 per month for the next 20 months? If so, we have reached an agreement, and the court can be informed.”

[7] On October 22, 2020, counsel for the applicant wrote to confirm the terms of the agreement, stating in part, “I understood that we already reached an agreement. The parties agree that [the applicant] would pay the sum of $3,000 in court costs for the motion. Based on her fixed income and how she has structured her finances, she has said that she will pay your client $150 per month on the first of every month.”

[8] On October 26, 2020, counsel for the respondent emailed applicant’s counsel to advise that she would let the respondent know to expect $150 from the applicant on November 1 and to subtract that amount from his child support payment if the funds were not received from the applicant.

[9] Five days later, the applicant sent the respondent an email transfer in the amount of $150 with the message, “Court fees for November 1st 2020.” On December 1, the applicant sent the respondent another email transfer in the same amount with the message “December 2020 payment.”

[10] In summary, there was an agreement arrived at between the parties through their counsel, and the applicant acted in accordance with that agreement for two months.

[11] The leading case in Ontario on the issue of a lawyer’s authority to enter into a settlement on behalf of a client is Scherer v. Paletta, [1966] 2 O.R. 524. The lawyer’s authority arises from their retainer and is subject to any qualification set out in that retainer; however, any such limitation does not affect the party opposite in litigation unless that limitation of authority is communicated to the party opposite. The client, having retained a lawyer in a particular matter, holds that lawyer out as their agent to conduct the matter in which the lawyer has been retained, including the compromise of such proceedings: Scherer, at p. 525. As Borins J., as he then was, stated in Belanger v. Southwestern Insulation Contractors, [1993] 16 O.R. (3d) 457, at p. 467:

If litigants were not bound by settlements made by their lawyers acting within the scope of their actual or apparent authority, the legal profession could not function as there could never be certainty that a settlement reached by their lawyers on their behalf was final and unimpeachable.

[12] The applicant’s previous counsel was retained by the applicant at the time of the motions and continued to be retained until after the December 1, 2020 payment was made. She had ostensible authority to resolve the issue of costs and did conclude a settlement on behalf of her client. There is no ambiguity in the terms of the settlement.

[13] The court has a discretion as to whether or not a settlement agreement should be enforced. The applicant submits that the agreement should not be enforced because she does not have the financial means to pay the agreed upon amount. The applicant contends that she was pressured by her previous counsel to pay $150 from her monthly ODSP benefits.

[14] As evidenced by the email exchange between counsel, the parties clearly turned their minds to the applicant’s finances and her fixed income. Counsel for the respondent confirmed that if her client did not receive the funds on the first of the month, he would subtract the same amount from his monthly child support payment. The applicant proceeded to make the first two payments under the settlement agreement.

[15] If the applicant has any complaint, it would appear to be with her former counsel. I hasten to add that I make no findings or additional observations on this issue. In relation to the settlement, there is no reason not to hold the applicant to the bargain made by counsel acting on her behalf. The settlement agreement in relation to costs of the motions should be upheld.

[16] As agreed by the parties, the applicant shall pay the respondent $3,000 in costs in respect of the motions, at a rate of $150 per month. I have signed an order in the form requested by the respondent.

Justice R. Ryan Bell Released: February 22, 2021