COURT FILE NO.: FC-20-915-00
DATE: 20210629
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Shelly-ann Gwendolyn Lindsay
Applicant
– and –
Michael Lindsay
Respondent
James Bennett, for the Applicant
Stephen Kirby, for the Respondent
HEARD: June 17, 2021
RELEASED: June 29, 2021
JUSITCE ALEX FINLAYSON
PART I: NATURE OF THIS MOTION
[1] The Applicant wife brings a motion for the partition and sale of the matrimonial home pursuant to section 2 of the Partition Act, R.S.O. 1990, c. P-4 as amended. The wife seeks an order for exclusive possession of the matrimonial home, to begin 21 days from the date of this decision, to enable her to “stage” the home for its sale. She seeks various other orders in the nature of sale terms. Finally, she seeks an order that $50,000 be released to each party from the net proceeds of sale on the closing, with the balance of the funds to be preserved by the real estate lawyer.
[2] The Respondent husband resists the wife’s motion for partition and sale, and in so doing he brings a cross-motion for partial summary judgment, to enforce an agreement he alleges the parties reached prior to the commencement of this proceeding. Their agreement is said to provide for the sale of the wife’s interest in the matrimonial home to him for $313,000.00. As I will explain, it would also require the husband to pay $110,000.00 towards a line of credit, a debt he now acknowledges responsibility to pay in the litigation. [^1]
[3] Both motions are for partial summary judgment, not just the husband’s. A motion for partition and sale, if granted, is a final Order. See McInnis v. McInnis, 2017 ONSC 3921 (S.C.J.); see also Scodras v. Scodras, 2005 14146 (S.C.J.) ¶ 50. I intend to analyze their competing claims according to the applicable tests for partial summary judgment.
[4] Both in writing and orally, the parties each made preliminary, sometimes technical or procedural arguments, they raised evidentiary issues, and there were objections based on the state of the pleadings. For example, the wife claimed relief under rule 1(8)(e) of the Family Law Rules, asking for an Order that the Respondent husband is not entitled to any further Order of this Court in relation to the sale of the matrimonial home, due to some alleged non-compliance with a disclosure Order of January 26, 2021. The husband responded to this denying his non-compliance. The wife abandoned her request under rule 1(8)(e) at the outset of argument, after the husband delivered an affidavit of documents. The wife also complained the husband violated the law of settlement privilege by filing correspondence between counsel. The husband complained the wife offended the hearsay rule on a motion by failing to identify the source of certain information and belief in her affidavit. The husband also made arguments about the wife’s pleadings and about her failure to file a responding affidavit to his cross-motion. Each of these arguments lack merit. Later on, I explain why.
[5] For the reasons that follow, the wife’s motion for the partition and sale of the matrimonial home is granted. I will make certain of the Orders respecting the sale terms, and an Order for the distribution of some of the eventual net proceeds of sale as asked for by the wife. The wife’s motion for temporary exclusive possession pending the sale is dismissed. The husband’s cross-motion for partial summary judgment is dismissed. Based on their joint submission, the husband, as the unsuccessful party, shall pay costs to the wife of $5,000.00.
PART II: BACKGROUND
[6] The parties were married for somewhere between 8 and 9 years, and they cohabited prior to the marriage for an additional 1 or 2 years, depending on whose version of the relationship prevails. Their date of marriage was July 24, 2011 and their date of separation was January 1, 2020 according to the wife, or March 14, 2020 according to the husband.
[7] The wife is now 53 years old and the husband is 70. The wife claims spousal support in this proceeding. The husband did not claim support in his Answer, but he told the wife during their pre-litigation negotiations that he might seek spousal support. This is relevant to the arguments now before me about whether the agreement was reached, or not.
[8] The wife works for Manulife. She earned just under $90,000 in 2019. Her financial statement sworn June 7, 2021 states that her current annual income is about $75,000.00.
[9] According to the parties’ pleadings, the husband was employed at Humber and Seneca Colleges as a professor, and he also operated a sole proprietorship called Lindsay & Associates. In his Answer dated December 4, 2020, the husband said he anticipated retiring in February 2021. According to his affidavit of June 9, 2021, the husband still works as an instructor at Humber and Seneca Colleges. He says that while he suffers from health issues and he is in “the process of retiring”, his retirement plans are “contingent on the deal reached through counsel with respect to the home” being implemented. The husband’s financial statement sworn June 11, 2021, reveals that he earned $169,731.00 in 2019, and his current annual income is $204,153.72.
[10] The parties are the equal owners of the matrimonial home at 7 Portage Trail in Whitby. They hold title as tenants in common. The wife used to own this home herself, prior to the marriage. The husband purchased 50% of the wife’s interest in home for $56,017.66 after they married.
[11] Unless she succeeds with her trust claim over a property the husband purchased in Muskoka, the wife’s remaining 50% interest in the matrimonial home is her only interest in real estate. By contrast, the husband owns four other properties, specifically two condominiums, a piece of vacant land, and a home in Florida.
[12] The wife moved out of the matrimonial home in July 2020. The wife says that she could not live in the matrimonial home with the husband any longer due to their “high-conflict state of affairs”. She alleges that the husband was emotionally and mentally abusive, that he called the police on her twice under false pretenses, and that he intimidated her through his words and conduct. The wife says she is in an anxious state around him. The husband says that their joint living situation became unpleasant, but not to the level described by the wife.
[13] For a few months after July 2020, the wife returned to stay at the matrimonial home on an ad hoc basis. She says she had to do so, for insurance reasons. This is one of the hearsay statements with which the husband takes issue. The husband says the wife did not identify the source of her information and belief about the alleged insurance problem. The husband disputes that there was a problem with the insurance. Whether there was or there wasn’t an insurance issue is irrelevant to the issues I must decide.
[14] The wife says she stopped staying in the home altogether in February 2021. The wife is currently living with her mother. According to the wife, the husband’s counsel told her not to return to the home, as she presents a Covid-19 risk to the husband, given his age.
[15] In his affidavit of June 9, 2021, the husband does talk about his health issues and Covid-19. But according to the wife, the husband has travelled to the United States and elsewhere, many times during the pandemic, despite these health concerns. In his affidavit of June 11, 2021, the husband admits traveling to Florida during the pandemic, but he says he did so only twice. He says he had to tend to his property and related issues there, and that he public health protocols while traveling. This travel allegation is largely irrelevant to what is now before me.
[16] The wife says that almost all of her liquidity is tied up in the matrimonial home. She has been asking that the matrimonial home be listed for sale since March 2020. However, she also entered into negotiations to sell her interest in it to the husband in 2020.
[17] Based on the wife’s financial statement sworn June 7, 2021, other than her interest in the matrimonial home, the wife had about $320,000.00 in bank accounts and investments as at her date of separation. Except for the line of credit debt of $110,000.00 which I address below, she had minimal debts. Her financial statement mostly lists as debts, contingent taxes on her investments. For the purposes of equalization, I note she had a smaller amount of investments at the date of marriage, resulting in a positive net family property.
[18] I accept the wife’s statement about her illiquidity, because most of her savings are in RRSPs. The wife is also paying storage costs for her belongings, out of her income. She is paying for half of the property taxes on the matrimonial home. I will come back to the latter when considering the husband’s argument about the parties subsequent conduct said to be consistent with the existence of an agreement.
[19] The husband’s actions have caused the wife to be liable to the bank for the $110,000 line of credit debt, yet to be accounted for. This debt is secured against title to the matrimonial home. It is in the wife’s name alone. It is not disputed that the husband took $110,000.00 to buy a property in Muskoka in his name alone. The wife launched a trust claim over the Muskoka property. The husband acknowledges that he owes this money to the wife, but still he has not paid it back. And the wife has been left to make the interest payments on the line of credit since July 2020, after the husband “abandoned the loan” (as the wife puts it).
[20] The husband is in a superior financial position to the wife. His financial statement of June 11, 2021 reveals this. The husband had approximately $3.2 million in bank accounts and investments as at the wife’s date of separation of January 1, 2020. Apart from some debt associated with the real estate (and the $110,000.00 he took from the wife’s line of credit), the husband’s only other debts are the contingent taxes on his investments and real estate. For the purposes of equalization, I note the husband had approximately $2.175 million in bank accounts and investments at the date of marriage, as well as certain business interests. The values he listed for the businesses are estimates, pending receipt of business valuations. Apparently certain real estate appraisals are also outstanding. But prima facie, he too has a positive net family property, and it exceeds the wife’s.
PART III: THE PARTIES’ POSITIONS
[21] The wife commenced this proceeding on August 24, 2020. In her Application, the wife claims, among other things, an order for the partition and sale of the matrimonial home under the Partition Act. In his Answer dated December 4, 2020 (and again on this motion), the husband asserts that several months earlier in May 2020, the parties reached an agreement for the wife to sell her interest in the matrimonial home to him. At paragraphs 17 to 19 of his Answer dated December 4, 2020, the husband alleges the existence of the deal and says that he would bring a motion for “partial summary judgment” to enforce the deal and for costs “for being forced to do so in light of the [wife’s] unreasonable behaviour”. The wife did not file a Reply to his Answer, which the husband says should have legal significance to the outcome of these motions.
[22] The husband says two letters between the parties’ former counsel dated May 6, 2020 and May 12, 2020 in particular, form the alleged agreement. The husband also states in his affidavit of June 9, 2021 that the parties’ “conduct has been consistent with the resolution of these issues achieved through counsel”.
[23] The wife says that no agreement was ever reached between the parties. She states that the correspondence between counsel amounts to little more than negotiations between them, which did not result in a resolution. The wife says that what the husband is trying to do is to select the transfer price for the house, but not the “corollary obligations on him”. In fact, the wife says that as late as February 16, 2021, the husband was still insisting on changes to a draft partial Separation Agreement that had been circulated.
[24] Neither side included in the record for this motion, any of the correspondence or the draft agreement(s) exchanged after May 12, 2021. They each argue that has no legal significance, or alternatively the failure to have filed this documentation should fall on the other’s shoulders.
PART IV: ANALYSIS
A. The Test for Summary Judgment
[25] Rule 16 of the Family Law Rules governs summary judgment in cases other than divorce. In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada said the following about summary judgment:
(a) undue process and protracted trials, with unnecessary expense and delay, can prevent the fair and just resolution of disputes. See ¶ 24; and
(b) the Ontario amendments to the summary judgment rule changed the test for summary judgment from asking whether the case presents a “genuine issue for trial” to asking whether there is a genuine issue requiring a trial. The new rule, with its enhanced fact-finding powers, demonstrates that a trial is not the default procedure. See ¶ 43.
[26] Pursuant to rules 16(1) and 16(4), to obtain summary judgment, the moving party must set out specific facts showing that there is no genuine issue requiring a trial. Pursuant to rule 16(4.1), the responding party may not rest on mere allegations or denials. He or she must set out in his or her evidence specific facts showing that there is a genuine issue for trial. In short, each party must put his and her best foot forward regarding the existence or non-existence of material facts that have to be tried. See Karlovic v. Karlovic, 2018 ONSC 4233 ¶ 39.
[27] But even if the responding party’s evidence does not establish a genuine issue for trial, the Court must still be satisfied on the evidence before it that the moving party filed has established that there is no genuine issue requiring a trial. See Kawartha Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316 ¶ 80.
[28] Pursuant to rule 16(6), if the Court finds that there is no genuine issue requiring a trial of a claim or defence, then the Court shall make a final order accordingly. There are additional fact-finding powers set out in rules 16(6.1) and 16(6.2) to which the Court may have resort under appropriate circumstances, to determine whether there is a genuine issue requiring a trial.
[29] There is a two-step process for determining whether summary judgment should be granted. First, the judge must determine if there is a genuine issue requiring a trial based on the evidence, without using the additional fact-finding powers set out in Rule 16(6.1). If, after this initial determination, there still appears to be a genuine issue for trial, the judge may resort to the additional fact-finding powers to decide if a trial is required.
[30] There will be no genuine issue requiring a trial when the Court is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process allows the Court to make the necessary findings of fact, allows the Court to apply the law to the facts, and is a proportionate, more expeditious and less expensive means to achieve a just result. See ¶ 49 of Hryniak v. Mauldin. As the Supreme Court said in Hryniak v. Mauldin, “the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the Court confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.” However, a process that does not give the judge confidence in conclusions to be drawn can never be a proportionate way to resolve the dispute. See ¶ 50 of Hryniak v. Mauldin.
[31] If there appears to be a genuine issue requiring a trial, based on the record before the Court, the Court should then determine if the need for a trial can be avoided by using the powers set out in rule 16 (6.1). These powers involve the weighing of evidence, evaluating credibility, and drawing inferences. The use of these powers is discretionary, provided that they do not run contrary to the interests of justice. Their use will not be against the interests of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole. See ¶ 66 of Hryniak v. Mauldin.
[32] If there are concerns about credibility or clarification of the evidence, then those issues can also be addressed by calling oral evidence on the motion itself. See ¶ 51 of Hryniak v. Mauldin. This is the mini-trial procedure set out in rule 16 (6.2). This power should be employed when it allows the Court to reach a fair and just adjudication on the merits and it is the proportionate course of action. While this is more likely to be the case when the oral evidence required is limited, there will be cases where extensive oral evidence can be heard on the motion for summary judgment, avoiding the need for a longer, more complex trial and without compromising the fairness of the procedure. See ¶ 63 of Hryniak v. Mauldin.
B. Applicable Legal Principles Concerning the Wife’s Motion for Partition and Sale
[33] As a tenant in common, the wife is entitled to move for partition and sale pursuant to sections 2 and 3(1) of the Partition Act. The wife has a prima facie right to relief under the Partition Act.
[34] Despite the prima facie right of a joint owner to it, partition and sale prior to trial is not a foregone conclusion. In family law cases, such orders should only be granted where it is appropriate to do so, “…in all of the circumstances”. See Martin v. Martin, 1992 1704 (Ont. C.A.). A motion for partition and sale under the Partition Act may be deferred where, “…substantial rights in relation to jointly owned property are likely to be jeopardized by an order for partition an sale…. until the matter is decided under the F.L.A.”. See Silva v. Silva, 1990 6718 (Ont. C.A.). And the Court also has additional discretion to refuse partition and sale where there is “malicious, vexatious or oppressive conduct”, although the standard for the exercise of these categories of discretion is narrow. See Latcham v. Latcham, 2002 44960 (ON CA), 2002 44960 (C.A.)
[35] As these motions are competing motions for partial summary judgment, the summary judgment test calls upon both parties to put their best feet forward, but in different ways. In the wife’s case, that means calling evidence to establish her prima facie right to the sale, and to deal with or negative any prejudice, were a pre-trial sale to be ordered. At a minimum, the husband has to then set out in his evidence specific facts showing that there is a genuine issue for trial, or at least that partition and sale should be deferred.
[36] But that is not the approach that the husband takes. Instead, he in effect asks the Court to dismiss the wife’s claim for partition and sale outright, based on the alleged agreement, which he asks the Court to enforce. To achieve this, he must obviously satisfy the Court as to the existence of a valid agreement that should be enforced. The wife would have to defend against that, if the husband makes out his case. But if the Court finds (as I am finding) that the husband fails to establish an agreement on a prima facie basis, then his cross-motion also fails and the wife’s alleged failure to put her best foot forward on the cross-motion is moot. See again Kawartha Haliburton Children’s Aid Society v. M.W. at ¶ 80.
[37] Although the parties’ competing motions are related, because each party has her and his respective onuses to meet, and because there was mention of the failure to adduce some evidence, I will attempt to deal with the two motions separately. I will address the wife’s motion for the partition and sale of the matrimonial home first, and then I will move on to the husband’s cross-motion. However, the two cannot be analyzed entirely distinctly, since the cross-motion to enforce the alleged agreement is also the defence to the motion for partition and sale.
[38] I find that it is in the interest of justice for the Court to determine the issues raised by both parties on their competing motions, summarily. In the context of this case, the summary judgment process allows the Court to make the necessary findings of fact and to apply the law to the facts. It is a proportionate, more expeditious and less expensive means to achieve a just result. The summary judgment process allows the Court to fairly and justly adjudicate the dispute.
C. Analysis Concerning the Motion for Partition and Sale
[39] The wife has satisfied me that there is no genuine issue requiring a trial regarding her claim for the partition and sale of the matrimonial home. There is no factual dispute that the parties jointly own the matrimonial home as tenants in common. There is no evidence of malicious, vexatious or oppressive conduct on the part of the wife, that might cause the Court to exercise the discretion referred to in Latcham v. Latcham.
[40] The real dispute between the parties is over whether the parties came to an agreement for the wife to sell her interest in the house to the husband that should be enforced. I am finding that the wife should succeed on her motion for partition and sale because the husband has failed to establish the existence of an agreement. But I will still also address the question of other prejudice in relation to the sale. As I will explain, I do not find any prejudice to either party of the kind referred to in Martin v. Martin and/or Silva v. Silva, and particularly, there is no prejudice to the husband having disposed of his cross-motion.
D. The Importance of Agreements in Family Law
[41] The husband argues that agreements are important in family law. He argues this as an overarching interpretive principle to guide the analysis on his cross-motion. He cites ¶ 49 of Zavarella v. Zavarella, 2013 ONCA 720 as standing for the proposition that parties are to be encouraged “…to settle their affairs with the confidence that their settlement will not be interfered with lightly”, and “…[a]greements should not be interfered with, except in very narrowly circumscribed circumstances”.
[42] However, the facts in Zavarella v. Zavarella were that the parties actually entered into signed, partial Minutes of Settlement on the first day of a trial. The trial judge’s order then departed from an aspect of the Minutes. The precise issue on appeal was whether the parties should have been held to their entire bargain, taking into consideration some evidence that a mistake may have been made as to one of the terms.
[43] I am aware of the policy statements in Zavarella v. Zavarella. However, an agreement must actually exist to attract the deference referred to in those passages. In that respect, Zavarella v. Zavarella is factually distinguishable from the facts of this case before me.
E. Whether A Settlement by Correspondence Between Counsel Reached Prior to Litigation May Be Enforced
[44] There is no dispute that the alleged agreement in this case before me does not comply with section 55(1) of the Family Law Act. That section requires a domestic contract be made in writing, signed by the parties and witnessed for it to be enforceable.
[45] There is also no debate that in some instances, courts will enforce settlements, despite the absence of the formalities required by s. 55(1). In Geropolous v. Geropolous, 1982 2020, the Ontario Court of Appeal held that the predecessor to section 55(1) was aimed at protecting a different kind of agreement, not at the enforceability of a settlement agreement achieved through correspondence between counsel to settle a pending law suit. In its conclusion, the Court of Appeal said that settlement agreements, “…made with legal advice during the pendency of court proceedings which, to be effective, require the intervention of the court” are not subject to the requirements of the section [my emphasis added]. The Court is able to assure their authenticity by supervising their enforcement in the litigation. The ratio in Geropolous v. Geropolous pertains to agreements made this way, while litigation is ongoing.
[46] In Pastoor v. Pastoor, 2007 28331 (S.C.J.), this Court extended the principle from Geropolous v. Geropolous to agreements reached prior to the commencement of litigation. In oral argument, counsel for the wife suggested that the correctness of the Pastoor v. Pastoor’s extension of the principle is debatable. Counsel submitted that Pastoor v. Pastoor has not been approved by the Ontario Court of Appeal, and he suggested that it has received some negative treatment in other decisions of this Court.
[47] The wife’s counsel referred me to the two such decisions of this Court. With respect to counsel, these cases do not adequately address the substance of this interesting argument. The cases distinguish Pastoor v. Pastoor on other grounds, not based on the timing of the alleged agreement being reached.
[48] The first case cited by counsel is Weber v. Weber, 2007 38583 (S.C.J.,) in which this Court did question the correctness of Pastoor v. Pastoor. At ¶ 21, the Court said that “a strong argument can be made that s. 55(1) of the Act reflects a legislative policy choice that the Court is required to observe”. However, the ratio in Weber v. Weber did not turn on this point. At ¶ 22, the Court found that it was not even clear on the record before it, whether an agreement had even been concluded.
[49] The second case cited by counsel is Barker v. Walsh, 2012 ONSC 1694. In Barker v. Walsh, the alleged agreement in issue was an oral one prior to litigation, not a written one. The Court distinguished Pastoor v. Pastoor in part based on the form of the agreement (ie. an oral agreement vs. a written one). In regards to the Court’s comments about the timing of the alleged agreement, the Court in Barker v. Walsh appears to have misunderstood the facts in Pastoor v. Pastoor. At ¶ 30, the Court said that there was good reason not to enforce section 55(1) in Pastoor v. Pastoor (and another case), because the agreement had been reached after litigation had commenced, among other reasons. That statement is a factually incorrect summary of what happened in Pastoor v. Pastoor.
[50] By contrast, the husband relies on the recent decision of Dennison J. in Gorman v. Gorman, 202 ONSC 2577, which followed Pastoor v. Pastoor. See ¶ 67. But other than referring to the factors set out in Gorman v. Gorman that the Court applied, and arguing that I too should apply them, the husband did not really address, on a principled basis, why the Court should reject the wife’s argument and follow Pastoor v. Pastoor’s extension of the principle in Geropolous v. Geropolous.
[51] Whether Pastoor v. Pastoor is good law or not was not fully argued, with reference to the underlying principles/rationales, to enable me to decide whether to now apply it now, or not. But I do not need to decide the issue one way or the other to dispose of these motions because I am finding that no such agreement between the parties was ever reached in this case. Therefore, the timing of the alleged agreement, and the impact of s. 55(1) of the Family Law Act, do not matter to the outcome of these motions.
F. The Availability of Partial Summary Judgment in this Case
[52] During argument, the wife also seemed to suggest that the husband’s cross-motion cannot succeed because an agreement on a single issue or claim, or on some but not all of the issues/claims between the parties, cannot be concluded by way of correspondence between counsel. I understood counsel to perhaps be saying that settlements can only be achieved by correspondence, if they are comprehensive as to all issues. In response to that, the husband filed Osborne v. Osborne, 2020 ONSC 3826 in which this Court granted judgment relating a single property within a case having other outstanding issues.
[53] I would frame the issue differently. The issue is not whether some but not all issues can be settled in this fashion, but rather whether it is appropriate for the Court to be granting partial summary judgment in a case to resolve some, but not all of the issues.
[54] The summary judgment rule is not available in case involving divorce. In cases where a divorce is claimed, rules 16(2) and (3) require the divorce to be severed, if for example there was going to be summary judgment on all of the other, corollary issues. In this case I have not been asked to grant summary judgment on all of the corollary relief claims. Neither side averred to rules 16(2) and 16(3), and the need to then turn to rule 12(5) specifically. However, each side asked the Court to deal with a single asset separately from the other issues in the case. Impliedly, if not expressly, they both asked for bifurcation.
[55] On the merits of this issue, as Charney J. said at ¶ 83 of Trefler v. Elias, 2020 ONSC 582, citing Butera v. Chown, Ciarns LLP, 2017 ONCA 783:
[83] In Butera v. Chown, Cairns LLP, 2017 ONCA 783, the Ontario Court of Appeal indicated that while partial summary judgment remains available in appropriate cases, specific consideration must be given to whether a partial summary judgment will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole. In some cases partial summary judgment will not result in any efficiencies, and will only delay the trial and increase the time and expense. These concerns are particularly apparent when a motion for summary judgment deals with only some but not all issues between the same parties. If the facts and evidence relating to the issues are intertwined or closely related, there is little benefit, and potential detriment, to proceeding with a motion for summary judgment. The Court stated, at para. 31:
A motion for partial summary judgment should be considered to be a rare procedure that is reserved for an issue or issues that may be readily bifurcated from those in the main action and that may be dealt with expeditiously and in a cost effective manner.
[56] I find that the issues of the sale of the matrimonial home and the validity of the alleged agreement can be bifurcated, without raising the concerns identified by Charney J. from the case above. As a result of my ruling, the questions about the sale and the alleged agreement will now be resolved. The resolution of these issues does not impact the calculation or resolution of the parties’ other claims, or the parties’ credibility. These two claims will be bifurcated pursuant to rule 12(5), in order for partial summary judgment to be granted.
G. Applicable Legal Principles Concerning Settlements by Correspondence
[57] Therefore, assuming that Pastoor v. Pastoor applies, and that settlements by correspondence reached prior to litigation are enforceable as are those reached during the pendency of a law suit, I turn next to what will be sufficient to give rise to a settlement. The applicable legal principles are found in Bogue v. Bogue, 1999 3284. At ¶ 12, 14 and 15 of Bogue v. Bogue, citing Bawitko Investments Ltd. v. Kernels Popcorn Ltd. (1991), 79 D.L.R. 5th 97 (Ont. C.A.) and other decisions, the Ontario Court of Appeal said the following:
[12] It is an over simplification to say that there cannot be an agreement to agree. The true legal position was explained by Robins J.A. in Bawitko Investments Ltd. v. Kernels Popcorn Ltd. (1991), 1991 2734 (ON CA), 79 D.L.R. (4th) 97 (Ont. C.A.) at pp. 103-04:
As a matter of normal business practice, parties planning to make a formal written document the expression of their agreement, necessarily discuss and negotiate the proposed terms of the agreement before they enter into it. They frequently agree upon all of the terms to be incorporated into the intended written document before it is prepared. Their agreement may be expressed orally or by way of memorandum, by exchange of correspondence, or other informal writings. The parties may "contract to make a contract", that is to say, they may bind themselves to execute at a future date a formal written agreement containing specific terms and conditions. When they agree on all of the essential provisions to be incorporated in a formal document with the intention that their agreement shall thereupon become binding, they will have fulfilled all the requisites for the formation of a contract. The fact that a formal written document to the same effect is to be thereafter prepared and signed does not alter the binding validity of the original contract.
However, when the original contract is incomplete because essential provisions intended to govern the contractual relationship have not been settled or agreed upon; or the contract is too general or uncertain to be valid in itself and is dependent on the making of a formal contract; or the understanding or intention of the parties, even if there is no uncertainty as to the terms of their agreement, is that their legal obligations are to be deferred until a formal contract has been approved and executed, the original or preliminary agreement cannot constitute an enforceable contract. In other words, in such circumstances the "contract to make a contract" is not a contract at all. The execution of the contemplated formal document is not intended only as a solemn record or memorial of an already complete and binding contract but is essential to the formation of the contract itself . . . (Emphasis added)
And at p. 105:
If no agreement in respect to essential terms has been reached or the terms have not been agreed to with reasonable certainty, it can only be concluded that such terms were to be agreed upon at a later date and until that time there would be no completed agreement.
[14] As McEachern C.J.B.C. pointed out in Fieguth, at p. 123, many settlements are very complicated and "the deal is usually struck before the documentation can be completed. In such cases, the settlement will be binding if there is agreement on the essential terms."
[15] Generally speaking, litigation is settled on the basis that a final agreement has been reached which the parties intend to record in formal documentation and "parties who reach a settlement should usually be held to their bargains".
[58] Earlier, I indicated the husband relies on the decision of Gorman v. Gorman. In that decision, the Court summarized a list of factors (also contained in Pastoor v. Pastoor and an earlier decision, Harris v. Harris, [1996] O.J. No. 2794 (Gen. Div.)) to determine whether to enforce the alleged agreement. The Court considered a number of the factors, like the presence of legal advice, and the presence or absence of disadvantage. I need not list all the factors here.
[59] I accept that the parties in this case before me were both represented when the correspondence was exchanged. I also accept that there were no circumstances, like duress or disadvantage. But these are not the real issues. The husband’s cross-motion can be resolved, almost if not entirely, on the terms of the correspondence that was exchanged. A plain reading of that correspondence leads me to conclude that no deal was struck. I turn to that next.
H. The Evidence Concerning the Alleged Agreement
[60] Although the husband says the deal was struck by virtue of the May 6 and 12, 2020 letters, the husband additionally filed two other earlier letters, dated April 6, 2020 and May 4, 2020. They provide additional context. I begin with the letter of April 6, 2020.
[61] On April 6, 2020, the wife’s former counsel sent a letter to the husband directly, just prior to him having retained counsel. This first letter of April 6, 2020 is marked “without prejudice”. [^2]
[62] In this first letter, the wife advised that she was prepared to sell her interest in the matrimonial home for $315,000.00 within 60 days, provided that the husband repay her the $110,000.00 that he took from the line of credit, and provided the contents of the matrimonial home would be divided. The letter ends by saying: “[i]f you are in agreement with the above, we will prepare a partial Separation Agreement. Otherwise, 7 Portage Trail needs to go up for sale”.
[63] On May 4, 2020, the husband’s former counsel responded with a counter-proposal. The letter begins with some commentary setting out the rationale for that counter-proposal. The letter also addresses other issues not relevant to this motion.
[64] Based on the evidence now before me (at least on a prima facie basis), the husband will owe the wife an equalization payment. Already back in this May 4, 2020 letter, the husband’s former counsel advised the wife’s counsel that the husband did feel he should have to equalize net family property, per the scheme in the Family Law Act. Former counsel wrote “[r]espectfully, due to the ages of the parties, I believe the spousal and property issues are interdependent and must be dealt with at the same time. To that end, Mr. Lyndsay would prefer to reach a comprehensive full and final Agreement and his proposal for same is outlined herein.” And later, the husband’s former counsel suggested that the husband might claim an unequal division of net family property, or spousal support if his asset base “for his future care is reduced”.
[65] The balance of this letter contains the specifics of the husband’s counter-proposal. The husband said he would purchase of the wife’s interest in the home for $295,000.00 less certain other discounts, rather than $315,000.00 that the wife proposed. The husband said he would pay the line of credit and the interest on it. He proposed a timeline of 90 days for the real estate transaction to be completed. He proposed that the parties were to obtain separate real estate lawyers to implement this deal. He proposed the parties would jointly share in the cost of the transfer. He added a new term, not previously discussed, that various appliances were to remain in the home, and he added terms about household contents and household bills, too.
[66] The husband concluded his letter by making an alternative proposal for the sale of the home, but he sought to secure a first right of refusal in that scenario. In either scenario, he said there would be a spousal support release, only if there would be no equalization payment, corresponding property releases, and a clause that property and spousal support are intertwined.
[67] This was not agreeable to the wife.
[68] On May 6, 2020, the wife’s former counsel sent another letter marked “without prejudice” to the husband’s former counsel, saying the wife would accept $313,000.00 to settle both, “…the home buyout and spousal support”. The first sentence of the fifth paragraph of this letter reads, “please confirm that your client is prepared to enter into a partial Separation Agreement addressing the buyout as above and a full and final release of spousal support”. And in the 6th paragraph of the letter, the wife’s former counsel said the wife was not prepared to negotiate any further. Counsel said that if there was no agreement, the house should be put up for sale by May 15, 2020. Later on, counsel clearly wrote that the wife did not agree to waive equalization.
[69] On May 12, 2020, the husband’s former counsel responded, now attempting to deal with the matrimonial home, in isolation. The husband was now prepared to settle the transfer price for the house, while leaving both equalization and spousal support on the table. The May 12, 2021 letter said, “as the matrimonial home is a pressing issue, please be advised that Mr. Lindsay will accept the proposed purchase price for the matrimonial home of $313,000.00.” He went on to propose the contents of a partial separation agreement, which continued to include the parties’ retaining separate counsel and various appliances remaining in the home.
[70] It is this letter that the husband says creates the binding deal. There is no mention of the spousal support release but with the wife’s ability to pursue equalization remaining in tact, which were clearly essential parts of the wife’s last proposal of May 6, 2020.
[71] Again, I was not given any correspondence or any of the draft agreements after this.
I. Analysis and Findings Concerning Whether the Parties Were Ad Idem
[72] The evidentiary record is sufficient for me to make a fair and just determination of the issues before me without the need for a trial. As I indicated earlier, the wife’s claim for partition and sale turns in part, but not entirely, on the fact that the parties are the joint owners of the matrimonial home. This has been proven by the undisputed documentary and the affidavit evidence. Similarly, the husband’s argument also that there is an alleged deal turns almost entirely on the correspondence. These documents also speak for themselves. The Court need not turn to the expanded fact-finding powers to deal with this evidence.
[73] The husband has failed to make out a prima facie case for judgment on this evidence. It is patently obvious on the face of the correspondence, that the wife’s offer to sell her share in the matrimonial home for $313,000.00 included the requirement that the parties enter into a spousal support release, but not a release of equalization. The husband’s response of May 12, 2020 was an obvious attempt to obtain the house at the $313,000.00 transfer price, while still preserving his ability to claim spousal support later on to offset the wife’s claim to equalization.
[74] In a peculiar turn of events in this proceeding, the wife has now claimed spousal support, and the husband has not.[^3] Counsel for the husband thus argues there is no prejudice to the wife if the Court enforces this alleged deal, since she her ability to claim spousal support from the husband is preserved. I considered this argument, but it is really beside the point that I have to decide. Regardless of what is now claimed, that is not what the wife was negotiating for in 2020 as a condition for the transfer of her interest in the matrimonial home. Again, she was bargaining for protection against a spousal support claim from the husband and to maximize her equalization claim. And even though he has not yet launched a spousal support claim, there is nothing preventing the husband from seeking to amend his pleadings to do so later on in this case, should equalization not settle in a manner favourable to him for example, or should he not succeed with this cross-motion.
J. Analysis and Findings Concerning the Parties’ Conduct After the Alleged Settlement
[75] Despite my finding that there was no deal on the face of the correspondence, for completeness I will go on to considered the husband’s argument about the parties’ subsequent behaviour, whereby he alleges the parties behaved consistently with the existence of an agreement. Because that evidence is at times (but not fully) conflicting, I will use the Court’s expanded powers under rule 16(6.1) to weigh it. I find it is in the interests of justice to do so, within the meaning of ¶ 66 of Hryniak v. Mauldin.
[76] The husband cites the fact that the wife moved out of the matrimonial home in July 2020 as behaviour consistent with an agreement (ie. she moved out since the house was going to be transferred to him). However, the wife has a very different account as to why she moved out.
[77] The husband says that after the parties arrived at their deal, he had the expenses associated with the home, other than the water bill, transferred into his name. Even then, the wife’s evidence is that she is still paying 50% of the property taxes. That is inconsistent with the husband’s argument about subsequent behaviour consistent with an agreement to transfer the wife’s interest in the matrimonial home to him.
[78] I note that the husband’s re-payment of the $110,000 he took from the line of credit to purchase his Muskoka property, was supposed to be put back at the time of the property transfer, according to the correspondence. But the husband has not paid the line of credit interest pending the implementation of the alleged deal. If responsibility for the $110,000.00 was acknowledged and part of the deal, then why is the wife, who has inferior financial resources, still servicing that debt more than 1 year later? How that would be accounted for in view of the passage of time would have to form part of more negotiations.
[79] The husband says that his retirement plans rely on the implementation of this agreement. He says that his belongings are in the home, and that he has invested labour into the property, like working on the gardens there. While the husband may want to keep the house as part of his retirement planning, this evidence reveals the husband’s desires, it does not prove the existence of a buyout agreement in my view.
[80] None of this so-called conduct evidence, either individually or as a whole, is sufficient to tip the scales in the husband’s favour. This subsequent conduct evidence is not evidence of part performance that the Court may use to conclude an agreement had been struck. Rather the husband is asking the Court to consider certain behaviours to bolster inadequate evidence of a deal in the first place. He is asking the Court to create a deal using this evidence, that otherwise did not exist.
K. The Absence of Subsequent Correspondence and Draft Agreements
[81] Neither side filed any of the further correspondence between counsel after May 12, 2020, nor any of the draft Agreements subsequently exchanged. Both counsel said it was not necessary. Alternatively, counsel for the husband attempted to argue that it was the wife’s onus to file it.
[82] I see the matter differently on the onus question. I have found that the husband has not even proven, prima facie, the existence of an agreement and that the subsequent conduct evidence does not change this result. If there is more evidence that might have changed that result, or more evidence of subsequent conduct amounting to part performance, or even other evidence that a deal emerged later on in continued negotiations, then it is the husband who ought to have put that evidence before the Court. The wife was entitled to proceed on the basis that the record the husband filed on these issues is complete.
[83] Further, the husband criticized the wife for not filing a responding affidavit to his cross-motion. But the wife clearly anticipated the husband’s cross-motion and addressed it in her main affidavit. She felt that she had already adequately addressed the alleged agreement in the she filed for her motion for partition and sale. She was correct. She was under no obligation to file further affidavits.
[84] The husband could have just opposed the wife’s motion for partition and sale, arguing that there would be prejudice to him if the Court ordered the sale now, because he would be deprived of a trial on the existence of the agreement (or some other claim). He could have theoretically also asked for a mini-trial under rule 16(6.2) too. For example, the facts in Gorman v. Gorman concerned an alleged oral agreement reached between counsel, followed by the subsequent exchange of draft settlement documentation. In the result in Gorman v. Gorman, the Court found that a trial was required, since the existence of the deal turned on the evidence of counsel as to what was orally negotiated, and thus their credibility. That is markedly different from this case before me. The husband here did not satisfy me that any cross-examination of witnesses would add value to the Court’s analysis.
[85] And the husband did not proceed in either fashion anyway. He instead asked the Court to find, based on the written record that he put before the Court under Rule 16, that the parties arrived at an agreement, and to dismiss the wife’s claim for partition and sale outright. He was entitled to proceed in this fashion if he so chose. He did not succeed. The result does not now change, based on an argument that the wife ought to have filed more evidence.
[86] In granting partial summary judgment in this case on the wife’s motion for partition and sale and in dismissing the husband’s cross-motion, I am considering and applying rules 2(2) to 2(5) of the Family Law Rules to ensure that a case is dealt with justly. These rules require a procedure that is fair to all parties, one which saves time and expense, and provides that the case is to be dealt with in ways that are appropriate to its importance and complexity. In applying rule 2, the notion of proportionality is a consideration in the Court’s use of summary judgment in this case.
L. Other Prejudice
[87] Having rejected the husband’s argument that the parties were ad idem, I return to the wife’s motion for partition and sale of the matrimonial home once more. I wish to point out that other than the arguments made in relation to the husband’s cross-motion, neither party really made any arguments that there would be prejudice from a pre-trial sale, and prior to the resolution of the other family law claims. Nor did either side argue malicious, vexatious or oppressive conduct on the part of the wife. The arguments focused almost entirely on the alleged agreement as the defence to the sale. Nevertheless, I will still consider whether there is any other prejudice, such that the wife’s motion should fail and/or be deferred to trial, being mindful of the Court of Appeal’s comments in Martin v. Martin and Silva v. Silva. I believe I am required to consider this, in spite of the parties’ limited submissions.
[88] In their pleadings, both sides have claimed equalization or an unequal division of net family property in the alternative. Apart from pleading an unequal division, there is no evidence before the Court to suggest that either party has a basis for this. Under the circumstances (including the fact that neither side argued unequal division as a basis to defer the sale), this does not give rise to prejudice.
[89] Neither side presented a draft net family property statement for this motion. Neither side put before the Court both sets of financial statements showing the two dates of separation. I did however receive both financial statements as at the wife’s alleged date of separation, and I was told that at the husband’s date of separation, the husband’s equalization payment may decrease, on account of a decline in the market value of his investments between January and March 2020.
[90] Based on the wife’s January 2020 date of separation, in very broad strokes, the husband owes her an equalization payment of about $200,000.00. There will be some fluctuations to this number, as there are certain values marked TBD on the husband’s financial statement, the husband has not yet produced certain property appraisals and business valuations, and the manner in which the $110,000.00 debt on the line of credit is reflected may need to be adjusted.
[91] As prima facie the wife will be the recipient of the equalization payment, I asked the parties questions about whether prejudice arises from the fact that equalization is not yet determined. For example, in the scenario where the Court might have granted the husband’s motion and he would become the sole owner of the matrimonial home, I asked whether there would still need to be some security ordered against the house, to secure the potential equalization payment he will owe to the wife. Both sides specifically conceded that an order for security out of the matrimonial home was not required, given the husband’s other assets. If security was not needed in the context of a transfer, it is hard to fathom why the sale should not be now granted because equalization has yet been determined and thus the house should remain in its current illiquid form for security purposes.
[92] Anyway, neither side argued that the sale cannot happen until equalization is resolved. Neither side raised, for example, the need to retain the matrimonial home in its current form to satisfy an equalization payment in the future, such as by way of an Order under section 9(1)(d)(i) of the Family Law Act.
[93] Arguably, in these circumstances and on the evidence before the Court, the wife could gone further and asked for the release of all of the funds from the sale of the home. However, she only asked that $50,000.00 per person be released. The husband did not make an alternative argument for the release of more funds. Therefore, I intend to only order the release of $50,000.00 to each side as requested by the wife. In the result, there will now be additional funds preserved to secure the potential equalization payment and the other claims. Because I gather the line of credit will be discharged on the sale of the home, this result also leaves funds to preserve an accounting for that too.
[94] The wife did ask for temporary exclusive possession of the matrimonial home (pending sale) on this motion. The husband pleaded a claim for exclusive possession, but did not ask for temporary exclusive possession on the motion in the alternative to his request for partial summary judgment, nor did he argue prejudice, like that a sale would defeat his claim for exclusive possession at trial. Other than the husband’s statements about his ability to retire, which involve him keeping the matrimonial home (arguably this is insufficient to ground a claim for exclusive possession), the husband did not tender any evidence to establish the strength of a claim for exclusive possession at trial, either.
[95] There is no dispute between the parties over ownership of the matrimonial home. There are no trust claims for beneficial ownership over it. The wife has a trust claim, but it pertains to the Muskoka property, to which the husband directed the $110,000.00 from the line of credit. No claims for beneficial ownership will be defeated if the matrimonial home is sold.
[96] The wife has a spousal support claim in this proceeding. The other claims in the parties’ pleadings pertain to security for their substantive claims. I have already addressed the security issue above. There is no prejudice that I can see here either, nor again were these unresolved claims argued as a basis to defer the sale.
M. The Husband’s Argument About the Wife’s Failure to File a Reply
[97] The husband argues in his written material that the wife’s motion for partition and sale should be dismissed because he claimed an order for partial summary judgment in his Answer, and the wife did not file a Reply. In his factum, the husband relies on ¶ 83-85 of Kahansky v. Wilkes, 2017 ONSC 3080 in support of this argument.
[98] In Kahansky v. Wilkes, the father had not filed a Reply and in the passages at ¶ 83-85, the Court did say that if the father wanted to dispute claims in the mother’s Answer, he had to file a Reply. But once again, it is important to look at the context in which those statements were made by the Court.
[99] Mr. Kahansky, the father, had brought an Application for a divorce only. The mother in that case filed an Answer and made a number of claims against the father. The father did not provide the necessary disclosure respecting the mother’s claims. He breached disclosure orders that had been made. The mother brought a motion to strike the father’s Application, so she could proceed with the claims in her Answer by way of an uncontested trial. At the time of her motion, the father still only had his initial Application, claiming a divorce only, before the Court.
[100] The Court struck the father’s pleading. In so doing, the Court made comments about the father’s failure to file a Reply while behaving in the litigation as if he had actually filed one. What the Court was really talking about was the fact that he had no claims whatsoever for any corollary relief before the Court.
[101] The husband in this case before me has taken the Court’s comments about the father’s failure to file a Reply in Kahansky v. Wilkes, 2017 ONSC 3080 out of context. There is no discussion in Kahansky v. Wilkes, 2017 ONSC 3080 about the consequences of the failure to file a Reply, when each side’s claims and positions are actually, and adequately pleaded in the Application and in the Answer.
[102] Rule 10(5) of the Family Law Rules sets out the consequences of failing to file an Answer to an Application. The consequences are the consequences listed in rule 1(8.4)(1.)-(4.) (ie. that steps may be taken against a respondent on an uncontested basis, and so forth). By contrast, rule 10(6), which addresses the right to file a Reply, is permissive, not mandatory. A party may file a Reply within 10 days after being served with an Answer. Rule 10(6) omits the same list of consequences to the failure to file a Reply, as those which pertain to not filing an Answer.
[103] In Frick v. Frick, 2016 ONCA 799, the motion judge had struck out the wife’s claim for an unequal division of net family property, after first considering whether she had set out the necessary material facts in her pleading. He did so with reference to the pleadings’ requirements in the Rules of Civil Procedure. Benotto J.A. held it was an error for the motions judge to have analyzed the pleading using the Rules of Civil Procedure in a family law case. Although Benotto J.A.’s comments at ¶ 11 and 16 of Frick v. Frick were made about what is required to go in an initial Application, I find what she said to be germane to the kind of argument the husband is trying to make now, about the Reply. Benotto J.A. wrote:
[11] The Family Law Rules were enacted to reflect the fact that litigation in family law matters is different from civil litigation. The family rules provide for active judicial case management, early, complete and ongoing financial disclosure, and an emphasis on resolution, mediation and ways to save time and expense in proportion to the complexity of the issues. They embody a philosophy peculiar to a lawsuit that involves a family.
[16] Rule 1(7) does not apply to redirect the court to the civil rules, because the family rules adequately cover the contents of an application. The family rules do not require all the material facts relied on to be set out at the time the case is started because a party will often not know all the facts supporting a claim. That is why the family rules provide stringent financial disclosure obligations. The emphasis on financial disclosure reflects the fact that parties might not know – and are entitled to find out – the details of the other’s circumstances. To require a party to plead “material facts” before financial disclosure would run contrary to the way family litigation is conducted, contrary to the family rules and contrary to basic fairness.
[104] The purpose of requiring a litigant to specifically claim relief in a written pleading is to provide notice to the other side. That will afford that opposing party the opportunity to respond and to fully present his or her case. And ultimately the pleading will frame the issues for the Court at the hearing.
[105] The wife very clearly claimed partition and sale in her Application. In his Answer, the husband asserted the existence of a deal and claimed an order for partial summary judgment. He specifically said he would seek to proceed with a partial summary judgment motion. Both issues then proceeded to these motions. Both issues were fully argued on their merits. Both sides had more than an ample opportunity to put all the necessary facts and law upon which they wanted to rely before the Court to decide these issues.
[106] The wife, as the moving party for partition and sale, brought her motion first. In it, she anticipated the cross-motion and addressed why she said there was no agreement between the parties. There was absolutely no unfairness to the husband, whatsoever, arising from the fact that the wife did not file a Reply. Her legal claim for partition and sale was set out in her Application, and her evidence and position on the cross-motion was set out in her affidavit. The husband knew full well what the wife’s evidence was, and he responded to it. Again, the wife did not even feel the need to file a responding affidavit on the cross-motion, given the calibre of the evidence the husband placed before the Court.
[107] Quite apart from all this, on the merits of this Reply argument alone, it is unreasonable for the husband to argue that the wife’s motion for partition and sale should be dismissed and the husband’s cross-motion granted because the wife did not file a Reply. It is unreasonable to argue this in the face of the inadequate evidence he filed. To order such a result would be neither fair nor would it do justice to these parties. It would result in granting the husband substantive relief to which he is not entitled, because he did not prove it, on a technical basis.
N. The Wife’s Failure to Claim Exclusive Possession in her Application
[108] The husband argues that the wife did not plead a claim for exclusive possession in her Application, and she cannot now seek temporary exclusive possession pending the sale in her Notice of Motion. I agree with the husband, that this aspect of the wife’s motion should be dismissed, but on different grounds.
[109] The wife does not need an Order for temporary exclusive possession pending the sale to gain access to the house to stage it. Even if she did, I would have thought that some kind of Order short of exclusive possession could be made as a sale term, to permit this. However, the wife has not put any evidence before the Court about what is needed to ready the house for sale. Nor is there evidence that the husband will obstruct the sale.
[110] I appreciate that the wife may not want the husband in the home while it is on the market, but the evidence is insufficient to warrant an Order for temporary exclusive possession in her favour. Additionally, I agree with counsel for the husband’s concern about the consequences of an exclusive possession order to his client.
[111] To be clear, I am not dismissing the wife’s claim for temporary exclusive possession claim based on an argument about a deficient pleading. I am doing so based on the evidence before the Court at this time, and on the merits. That said, if problems arise during the implementation of this Order for the sale, and a request returns before the Court for temporary exclusive possession pending the sale, then the parties should consider whether the pleading actually needs to be amended so that the request can be addressed on its merits again, without these unnecessary procedural objections.
O. Sale Terms
[112] Other than opposing the wife’s request for temporary exclusive possession, the husband did not propose any sale terms in the alternative to his cross-motion for summary judgment. Therefore, I will impose some of the sale terms proposed by the wife. I would not Order all of them. In addition to rejecting the wife’s claim for some kind of possessory Order to enable her to stage the home, I would not at this point grant the wife complete control over the sale either. There record does not currently justify such an Order. If there is any non-cooperation with the sale by either party, then one or the other of them may return an issue before me or another judge if I am not available, for a decision. Now that this decision about the sale has been given, the decisions that need to be made to implement this sale are the kinds of decisions that should reasonably be made by the parties together, or with the assistance of their counsel. Hopefully, they will not need to return to the Court.
P. Other Evidentiary Issues Raised by Both Sides
[113] There remains certain other evidentiary issues that both sides raised. At the outset of this decision, I said they lacked merit. Nevertheless, since they were raised in writing in the facta, I will address them briefly.
[114] Although there was no motion to strike brought, in her factum the wife complains that the husband filed material that is subject to settlement privilege. He did not. Settlement privilege applies to successful negotiations and to failed negotiations, “… so long as the existence or interpretation of the agreement itself is not in issue in the subsequent proceedings and none of the exceptions are applicable”. See Sopinka, Lederman & Bryant, “The Law of Evidence in Canada” 5th ed., 2018, Toronto: LexisNexis Canada Inc., at page 1104.
[115] In his statement of law, the husband complains that the wife relied on hearsay evidence. The husband says that that the wife relies on statements made by unnamed neighbors, and an unnamed TD representative, and in so doing, she violated the requirements of rule 14(19).
[116] As I already indicated, this complained of evidence, which formed part of the wife’s historical narrative, is irrelevant to the critical issues on these motions. It did not factor into my decision-making about the request for partition and sale, or about the existence of an agreement.
Q. Costs
[117] Finally, there is the issue of costs. The parties agreed, at the conclusion of argument, that the successful party should be entitled to costs of $5,000.00. Although the parties raised a number of collateral arguments, and even though the wife was not successful regarding her claim for temporary exclusive possession pending the sale, or some of the other sale terms, I find this sum for costs should still be paid to her. The wife was substantially successful in achieving the sale, some of her proposed sale terms, and in resisting the husband’s cross-motion. And the parties conceded that if the house was ordered sold rather than transferred to the husband, this sum should be paid for costs.
PART V: ORDER
[118] I make the following Orders:
(a) The wife’s claim for partition and sale of the matrimonial home and the husband’s claim for partial summary judgment respecting the alleged agreement are bifurcated from the balance of the claims in this case;
(b) The matrimonial home shall be partitioned and sold;
(c) The husband did not propose a realtor. Therefore, the wife’s proposed realtor, Lisa Fayle of Remax, shall be the agent. If Ms. Fayle is not willing or able to act, then the parties shall jointly select a different agent;
(d) The parties shall fully cooperate with the real estate agent and follow her recommendations;
(e) The parties shall accept the first reasonable and/or the best offer on the property, in consultation with the real estate agent;
(f) The parties jointly select a real estate lawyer to complete the sale. Counsel should assist the parties to select a lawyer;
(g) From the eventual net proceeds of sale, the sum of $50,000.00 shall be released to each party. The balance of the eventual net proceeds of sale shall be held in trust by the real estate lawyer, pending further order or agreement;
(h) The wife’s claim for temporary exclusive possession pending the sale is dismissed. However, further claims relating to the sale, including for temporary exclusive possession pending the sale, may be brought and/or revived if there is new evidence, after the date of this Order, that warrants additional terms to enable the sale;
(i) If there is any dispute about such a term, the parties shall endeavour first to resolve the dispute with the assistance of counsel. Otherwise, I may be contacted, or a motion may be brought before a different judge if I am not available, to settle the dispute;
(j) This Court finds that the parties did not reach an agreement for the husband to purchase the wife’s interest in the matrimonial home. The husband’s claim on this issue is dismissed; and
(k) The husband shall pay costs of these motions to the wife in the sum of $5,000.00.
Justice Alex Finlayson
Released: June 29, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Shelly-ann Gwendolyn Lindsay
Applicant
– and –
Michael Lindsay
Respondent
REASONS FOR JUDGMENT
Justice Alex Finlayson
Released: June 29, 2021
[^1]: Although in his Notice of Cross-Motion, the husband makes no mention of this, nor the spousal support release that was being negotiated. [^2]: I address later the wife’s argument about this, but there is no serious issue that this and the other “without prejudice” correspondence was properly put before me on this motion. [^3]: He nevertheless launched a claim for an unequal division of net family property, but in tandem with a claim for partial summary judgment respecting the matrimonial home.