COURT FILE NO.: FS-19-10173-0001

DATE: 20210322

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Judy Goldenfajn-Abrahams, Applicant

AND:

Eliot Abrahams, Respondent

BEFORE: C. Horkins J.

COUNSEL: Judy Goldenfajn-Abrahams, appearing in person

Eliot Abrahams, appearing in person

HEARD at Toronto: March 9, 2021

REASONS FOR DECISION

overview

[1] The Respondent father brings a motion “to effect a settlement that resolved all issues”. If the court finds that there was no settlement, then he seeks leave to extend the time to appeal the order of Paisley J. dated October 29, 2019.

[2] On June 4, 2019, the Respondent issued a motion to change the child support that he owed under the final order of Hughes J. dated May 30, 2016 (“Hughes order”).

[3] The parties attempted to settle the motion to change. A dispute arose about whether a settlement was reached. The Respondent said the matter was settled and the Applicant mother disagreed. The Respondent brought a motion to enforce the alleged settlement. Justice Paisley dismissed his motion and ordered him to pay $10,000 in costs.

[4] After the motion, the parties signed a consent to a draft order to settle the motion to change. A disagreement arose over whether the Respondent still owed the $10,000 in costs. The Respondent argues that there was a settlement of all issues, including the costs. As a result, he states that he is not required to pay the $10,000 in costs.

[5] Unfortunately, there have been many court attendances. To decide the Respondent’s motion, it is necessary to start at the beginning of this dispute and examine what happened.

past motions, conferences, decisions and communications

[6] The Respondent issued his motion to change on June 14, 2019.

[7] On August 7, 2019, a case conference was held before a senior counsel who recorded that there was no meeting of the minds regarding the Applicant’s proposed offer to settle the motion to change.

[8] On September 20, 2019, a case conference was held before Goodman J. The endorsement records the Respondent’s position that he had accepted the Applicant’s offer to settle and that a final order should be issued to resolve his motion to change. The Applicant did not agree. The Respondent wanted to proceed with a motion to enforce the settlement as soon as possible, so he could satisfy the Family Responsibility Office (“FRO”) that he did not owe any support arrears. Goodman J. ordered that the Respondent could proceed with a motion to enforce the alleged settlement of his motion to change.

[9] On October 29, 2019, Paisley J. heard the Respondent’s motion to enforce the alleged settlement. Justice Paisley dismissed the Respondent’s motion and ordered him to pay the Applicant costs of $10,000. Further, Paisley J. ordered that FRO enforce the costs “as incidental to support”.

[10] In the endorsement, Paisley J. reviewed the facts. The Applicant had served an offer to settle that included a provision for s. 7 expenses. The Respondent accepted this offer by email. The Applicant’s counsel drafted an order, but the Respondent did not agree that the draft offer reflected the settlement. According to the endorsement, the dispute related to s. 7 expenses, whether the Respondent was owed a credit and whether this was part of the settlement. Justice Paisley found that a plain wording of the offer and acceptance did not lead to the conclusion that there was a meeting of the minds on the issue of overpayment of s. 7 arrears. The documents were “too imprecise” to find that they intended to extinguish the Respondent’s s. 7 arrears. Justice Paisley’s decision was delivered to the parties shortly after the hearing of the motion.

[11] That evening, the Applicant sent the Respondent a signed consent to a draft order that was attached. This draft order set out the variation of the Hughes order. The consent and draft order did not mention the $10,000 costs order. On this motion, the Respondent argues that because it was silent about costs, it meant that he no longer owed the Applicant $10,000.

[12] The Respondent signed the consent to the draft order attached and faxed it back to the Applicant’s counsel. On this motion, he states that “my intention in signing on October 29, 2019, was that the cost order was included”. There is no evidence that the Respondent communicated “his intention” to the Applicant directly or her counsel, Ms. Rolls. Even if he did, there is no evidence that the Applicant agreed to forgo the $10,000 in costs, as part of the motion to change settlement.

[13] To support his position, the Respondent relies on some emails with Ms. Rolls on November 11 and 12, 2019. On November 11, 2019, Ms. Rolls sent an email to the Respondent enclosing a consent that the Applicant had signed. The consent, while not identified in the email communication, was likely the consent to the draft order of Paisley J. (dismissing the Respondent’s motion and ordering him to pay $10,000 in costs).

[14] In her email, Ms. Rolls told the Respondent that the matter was over. This triggered a chain of emails back and forth set out below. At no point in the emails did the Respondent tell Ms. Rolls that the settlement of the motion to change included an agreement to forgo the $10,000 costs order.

Ms. Rolls to the Respondent:

I enclose the consent signed by Ms. Abrahams this evening.

This matter has now concluded. No further appear is required.

Franca, please take out the final order.

The Respondent to Ms. Rolls:

Tilda Roll

New offer went out yesterday.

Thurs is still on.

Eliot Abrahams

Ms. Rolls to the Respondent:

The consent has been signed so the case is over.

The Respondent to Ms. Rolls:

Until you put it in writing: Judy is not pursuing the costs from the endorsement from October 29, 2019, Thursday goes ahead.

I am continuing as if the offer had never been accepted.

You never acted on the offer. You had it for 2 weeks.

Further Judy asked me: How do you propose we come to an agreement over the child support & section 7’s going forward ….

FAILURE TO CARRY OUT TERMS OF ACCEPTED OFFER

(13) If a party to an accepted offer does not carry out the terms of the offer, the other party may,

(a) make a motion to turn the parts of the offer within the court’s jurisdiction into an order; or

(b) continue the case as if the offer had never been accepted. O. Reg. 114/99, r. 18 (13).

Ms. Rolls to the Respondent:

The order has been signed by both parties. You did not withdraw your signature. So the case is done.

The Respondent to Ms. Rolls:

Why don’t you clarify case is done.

If you don't write explicitly that you are not pursuing the Oct 29 endorsement, it goes ahead on Thursday.

If that’s everything, including the Oct 29 endorsement, then we can cancel Thursday and we can work it out.

You didn’t accept the offer, I don’t have to argue, Judy asked me for another offer, and I produced another offer.

Eliot Abrahams

Ms. Rolls to the Respondent:

Sir, once a consent is signed, and it is not withdrawn, which you did not do, the case settles.

The Respondent to Ms. Rolls:

You haven’t filed it.

I am withdrawing my consent.

[15] On November 14, 2019, the Respondent brought a motion before Faieta J. He asked the Court to set aside Paisley J.’s order based on fraud or mistake under r. 25(19) of the Family Law Rules, O. Reg. 114/99. This rule states that a court may change an order that was “obtained by fraud” or “contains a mistake.” Justice Faieta found that r. 25(19) had no application and the Respondent’s motion was dismissed. The dismissal of the motion was “without prejudice to his right to bring a proper appeal” of Paisley J.’s order. Justice Faieta ordered the parties to attend a settlement conference. The issue of whether the Respondent still owed the $10,000 for costs was not raised in the Respondent’s notice of motion or factum. Further, it is not mentioned in Faieta J.’s endorsement.

[16] The Respondent did not appeal Faieta J.’s order, nor did he take any steps to appeal Paisley J.’s order.

[17] On November 28, 2019, the Applicant filed a 14B motion with the Consent and order that settled the motion to change. The order was issued and signed by Paisley J. on December 6, 2019.

[18] On December 10, 2019, the court issued the October 29, 2019 order of Paisley J. This is the order dismissing the Respondent’s motion and ordering him to pay $10,000 in costs.

[19] In late December 2019, Paisley J.’s cost order was given to FRO for enforcement. The Respondent states that he immediately contacted FRO to tell them that the costs order had been settled. Whatever he told FRO did not change the fact that FRO was enforcing the support and cost orders. The Respondent is now in default and his licence has been suspended.

[20] On January 15, 2020, the parties attended a settlement conference before Nakonechny J. Justice Faieta had ordered this settlement conference. According to Nakonechny J.’s endorsement, the parties agreed to change the wording of the December 6, 2019 order. This was the Paisley J. order that varied the final order of Hughes J. The court’s endorsement states as follows:

Parties attended a conference today to determine the issue of the final order of Paisley J. dated December 6, 2019. On consent the order of Paisley J. dated December 6, 2019 is struck and replaced with the draft order attached as schedule “A” hereto. SDO to issue.

The clean copy of the order may be sent to my attention for signature by 14B if required.

[21] The endorsement of Nakonechny J. does not mention Paisley J.’s order that dismissed the Respondent’s motion and ordered him to pay $10,000 for costs. Further, there is no evidence that the Respondent even raised the issue about the $10,000 for costs at this settlement conference.

[22] Shortly after the settlement conference, the COVID-19 pandemic started, and the next step was this motion.

analysis- respondent’s motion

[23] On this motion, the Respondent seeks an order that gives effect to his position that the parties agreed to forgo the $10,000 in costs. The evidence does not prove on a balance of probabilities that such an agreement was made. At best, there is evidence that the Respondent intended to include this in the settlement of his motion to change. An intention to do something is not an agreement.

[24] There is nothing in writing to show that the Applicant agreed to forgo the costs when the motion to change was settled on October 29, 2019. In the months that followed, the parties returned to court and yet the apparent agreement to forgo costs is never mentioned or recorded.

[25] As the Applicant has said, the two orders of Paisley J. stand alone. The order that settled the motion to change did not relieve the Respondent of his obligation to pay the $10,000 for costs that Paisley J. ordered.

[26] The Respondent’s motion for an order “to effect a settlement that resolved all issues” is dismissed.

[27] In the alternative, the Respondent seeks leave to extend the time to appeal the order of Paisley J. dated October 29, 2019. To be clear, this is the order that dismissed his motion and ordered the $10,000 for costs. There is no automatic right of appeal. The Respondent needs to obtain leave to appeal a temporary order to the Divisional Court.

[28] The time for seeking leave expired 15 days after Paisley J.’s order. Therefore, the Respondent cannot seek leave to appeal unless he obtains an order from the Divisional Court extending the deadline. This Court cannot order the relief. A motion to extend the time to seek leave to appeal is made to the Divisional Court.

[29] In summary, the Respondent’s motion is dismissed. His motion to change the Hughes order is finished. The parties have a final order from Nakonechny J.

[30] I make the following orders:

1. The Respondent’s motion dated January 11, 2021 is dismissed.

If costs of this motion are requested and cannot be resolved by the parties, they shall exchange brief written costs submissions and file them with the Court by April 13, 2021. Submissions shall be filed with the JSO portal https://www.ontario.ca/page/file-family-court-documents-online and through the Family Intake Office email at Toronto.SCJ.FAMILYINTAKE@ontario.ca.

C. Horkins J.

Date: March 22, 2021