NEWMARKET COURT FILE NO.: FC-20-59-00
DATE: 20210427
SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT
RE: C.B.S., Applicant
AND:
M.S., Respondent
BEFORE: The Honourable Mr. Justice G.A. MacPherson
COUNSEL: E.E. Mazinani, Counsel for the Applicant
J.M. Neiman, Counsel for the Respondent
HEARD: April 21, 2021
ruling on motion
Relief Requested
[1] The Applicant brings a motion requesting an Order to enforce the Respondent’s Offer to Settle dated January 4, 2021 and accepted by the Applicant on March 31, 2021.
Background
[2] The parties were married on December 13, 1997 and separated June 1, 2017. This was a 20-year marriage.
[3] There are two children of the marriage namely, A.S. born August 2, 2000 and A.S. born November 2, 2003.
[4] An Application was issued on January 13, 2020. The Respondent filed an Answer on April 1, 2020.
[5] The most significant issues were child support, spousal support and equalization.
[6] A Case Conference was held on June 30, 2020.
[7] A Settlement Conference was held on December 14, 2020.
[8] Both parties were represented by counsel.
Offer to Settle
[9] On January 4, 2021 the Respondent served on the Applicant, through counsel, an Offer to Settle.
[10] The Offer to Settle was in writing and signed by the Respondent.
[11] The terms of the Offer to Settle are not in dispute. The most significant terms of the offer are as follows:
The Respondent would transfer his share of the matrimonial home to the Applicant based on a fair market value of the home of $1,100,000 in instalments over a 2 – 4 year period at the same interest rate as the mortgage and with the transfer of the title to the property to occur upon payment in full.
The Applicant would transfer her interest in the business, Allarvac Systems Inc., to the Respondent.
The Respondent would pay child support for the two children in the amount of $674 per month commencing February 1, 2021.
The Respondent would pay reasonable section 7 expenses as agreed upon by the parties.
No spousal support would be paid.
The offer remained open until such time as it was revoked in writing by the Respondent.
[12] On March 31, 2021 the parties had a four-way settlement meeting. Counsel and the parties attended.
[13] The Respondent, during the settlement meeting, stated, orally, that his offer (dated January 4, 2021) was “no longer on the table.”
[14] During a break in the settlement negotiations, the Applicant accepted the Respondent’s Offer to Settle.
[15] The Applicant’s acceptance of the Offer to Settle was made in writing.
[16] Following receipt of the Applicant’s acceptance of the Offer to Settle, the Respondent responded that, while the offer was “technically open”, the Respondent had advised, in good faith, that the offer was “no longer on the table.” The Respondent withdrew the Offer to Settle 17 minutes after it was accepted by the Applicant.
Law
[17] Section 18(3) of the Family Law Rules states:
MAKING AN OFFER
(3) A party may serve an offer on any other party. O. Reg. 114/99, r. 18 (3).
[18] Section 18(5) of the Family Law Rules states:
WITHDRAWING AN OFFER
(5) A party who made an offer may withdraw it by serving a notice of withdrawal, at any time before the offer is accepted. O. Reg. 114/99, r. 18 (5).
[19] Section 18(9) of the Family Law Rules states:
ACCEPTING AN OFFER
(9) The only valid way of accepting an offer is by serving an acceptance on the party who made the offer, at any time before,
(a) the offer is withdrawn; or
(b) the court begins to give a decision that disposes of a claim dealt with in the offer. O. Reg. 114/99, r. 18 (9).
Analysis
Does an oral pronouncement alter a written Offer to Settle?
[20] Pursuant to the Offer to Settle, the offer was open for acceptance until such time as it was revoked by the Respondent in writing. The Offer to Settle was not revoked in writing prior to the Applicant’s written acceptance.
[21] Pursuant to Rule 18(5) of the Family Law Rules, a party who makes an Offer to Settle is at liberty to withdraw it at any time before it is accepted by serving a Notice of Withdrawal. A Notice of Withdrawal was not served by the Respondent prior to the offer being accepted.
[22] The Respondent was free to withdraw the Offer to Settle at any time, in writing, but he failed to do so. The Respondent argues that the verbal indication that the Offer to Settle was off the table is sufficient to withdraw the offer.
[23] I do not accept that a written Offer to Settle can be displaced by oral comments. It is contrary to the Family Law Rules. It is contrary to the rules of contract law. The Ontario Court of Appeal confirmed that oral discussions do not displace written Offers to Settle see: York North Condominium Corp. No. 5 v. Van Horne Clipper Properties Ltd. (1989), 1989 CanLII 4375 (ON CA), 70 O.R. (2d) 317 (Ont. C.A.).
Will enforcement of the agreement lead to a clear injustice?
[24] The Respondent argues that the terms of the Offer to Settle, if enforced, are unreasonable and would lead to a clear injustice.
[25] The onus to establish that a settlement is unreasonable lies with the litigant making the claim.
[26] The Respondent must demonstrate that enforcement of the settlement would lead to a clear injustice. See: Milios v Zagas (1998) 1998 CANLII 7119 (ONCA).
[27] I cannot accept the argument that enforcement of the Offer to Settle would lead to a clear injustice for the following reasons.
[28] The Respondent made the Offer to Settle.
[29] The Offer to Settle was made while the Respondent was represented by counsel.
[30] The Offer to Settle was made following both a Case Conference and a Settlement Conference.
[31] The Respondent selected the value of the matrimonial home for the purpose of settlement.
[32] The Applicant agreed to waive her share of the business and her entitlement to spousal support, following a 20-year marriage.
[33] On July 2, 2020 Kaufman J. made an Order that the parties agree on a valuator to value the Respondent’s business, Allarvac Systems Inc., and its income stream. This has not occurred.
[34] The Respondent argues that the settlement is unreasonable and would provide a clear injustice yet does not provide an income valuation for the business nor an income stream.
[35] The Respondent has failed to provide evidence that enforcement of the Offer to Settle is unreasonable and would result in a clear injustice. The onus is on him and he has failed to discharge that onus.
[36] The court encourages litigants to settle their matters through negotiation and through the use of frequent and continuous Offers to Settle. When done, the court will enforce the terms. It is noteworthy that the non-acceptance of a reasonable Offer to Settle may result in cost consequences.
Was there consensus ad idem, or meeting of the minds?
[37] The Respondent argues that as a result of his statement that the Offer to Settle is ‘off the table’, there cannot be consensus ad idem.
[38] I disagree. Consensus ad idem refers to an agreement on the essential terms. The terms of the Offer to Settle were in writing. The terms are unambiguous. The terms were offered and accepted. There was consensus on the terms.
Order
The Respondent’s Offer to Settle is enforceable.
The Applicant may submit to the court a final Order incorporating the terms of the Offer to Settle pursuant to Rule 18(13) of the Family Law Rules.
If the parties cannot agree on the issue of costs regarding this motion, I shall consider the request for costs. The Applicant shall serve on the Respondent and file electronically, through the Trial Coordinator, her written submissions, limited to three 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 electronically, through the Trial Coordinator, his written submissions, limited to three pages exclusive of the Bill of Costs and Offers to Settle within 10 days thereafter. There shall be no right of Reply.
Justice G.A. MacPherson
Date: April 27, 2021