COURT FILE NO.: 599/12
DATE: 2021-08-27
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: JILL NICOLE ARMSTRONG, Applicant
- AND -
JASON MURRAY ARMSTRONG, Respondent
BEFORE: Madam Justice J.D. Walters
COUNSEL: Jill Nicole Armstrong, self-represented
Chantal A. McCollum, Counsel for the Respondent
Claude Leduc, Office of the Children’s Lawyer
HEARD: May 26, 27, and 28, 2021
REASONS FOR DECISION
Overview
[1] I have been asked to decide whether the Minutes of Settlement executed by the parties on April 23 and 24, 2021 should be set aside.
[2] The Applicant, Jill Nicole Armstrong (“the mother”), has brought a motion pursuant to s. 56(4) of the Family Law Act, R.S.O. 1990, c. F.3 (FLA), seeking an Order that the Minutes of Settlement be set aside.
[3] The mother cites three reasons why the Minutes should be set aside. First, she states that there was a mistake in the Minutes. Second, she signed the Minutes without legal advice, and finally she signed them under duress. The mother seeks a trial date.
[4] The Respondent, Jason Murray Armstrong (“the father”), in response to the motion has filed a cross-motion seeking (1) an Order vacating the trial date commencing May 25, 2021 to hear this motion in lieu, (2) an Order for Summary Judgment pursuant to Rule 16 of the Family Law Rules; (3) an Order declaring that the Minutes of Settlement finally executed on April 24, 2021 represent a valid and enforceable agreement between the parties in this matter; (4) an Order that the Applicant’s motion to withdraw the Minutes of Settlement be dismissed, and, in the alternative, (5) that the Trial be adjourned to the sittings scheduled to begin October 12, 2021. It is the father’s position that the Minutes of Settlement should not be set aside.
[5] The parties were married on September 11, 2004, separated in January 2009, and divorced September 25, 2010. Two children were born of the relationship: Isaiah Henry James Armstrong, born September 1, 2005 and Olivia Anne Ruth Armstrong, born September 18, 2007 (“the children”). There has been a history of litigation dating back to 2009. The parties are currently before the courts as a result of a Motion to Change brought by the father in 2017.
[6] The matter has been delayed as a result of the pandemic. The trial was to commence in May 2021, however the parties executed Minutes of Settlement. Prior to converting the Minutes of Settlement into a final order, the mother brought a motion seeking to set aside the minutes.
[7] Mr. Leduc represents the two children. He was not available for the hearing, although he did attend briefly to advise that he was not taking a position as to whether the Minutes of Settlement should be set aside. He was not involved in the negotiation of the Minutes of Settlement. He also confirmed that the children’s views and preferences are to remain where they are, as set out in the Minutes of Settlement. The eldest child is with the father and the youngest child is with the mother.
[8] I find that the Minutes of Settlement executed by the parties on April 23 and 24, 2021 should not be set aside. I also find that it is in the children’s best interests for the Minutes of Settlement to be valid. The mother’s evidence was given orally. Her main reason to set aside the Minutes of Settlement is that she has changed her mind. The mother claimed mistake but also testified that she signed despite the mistake in the document. Counsel for the father advised the mother on more than one occasion to obtain legal advice. The mother did not retain counsel. The mother signed a waiver of legal advice document and returned it to the father’s counsel. Despite not having legal advice at the time of signing, her change of mind suggests that she understood the nature and consequences of the contract at the time she signed. The mother claimed duress as the final reason to set aside the Minutes. The mother’s evidence in support of that claim is that she signed the documents in a panicked state because she did not want to go to trial. I do not find that this amounts to duress.
[9] I also found the mother’s testimony to be troubling. I did not find her to be forthright or honest in her testimony. I have no doubt that she loves her children and she is not happy that her relationship has broken down with her eldest child. She is also not happy that the eldest child is living with the father, but there are no grounds to support setting aside the Minutes of Settlement.
Should the Minutes of Settlement executed by the parties on April 23 and 24, 2021 be set aside?
[10] Section 56(4) of the FLA sets out when a domestic contract can be set aside. The court may set aside a domestic contract or a provision in it if a party failed to disclose to the other, significant assets, debts or other liabilities existing when the domestic contract was made; if a party did not understand the nature or consequences of the contract; or otherwise in accordance with the law of contract.
[11] Courts have discretion in setting aside Minutes of Settlement. The most common factors for consideration are whether there had been a concealment of assets or material misrepresentation; whether there had been duress, or unconscionable circumstances; whether the petitioning party neglected to pursue full legal disclosures; whether the petitioning party moved expeditiously to have the agreement set aside; whether the petitioning party received substantial benefits under the agreement; whether the other party had fulfilled his or her obligations under the agreement; and whether the non-disclosure was a material inducement to entering the agreement. In other words, how important was the non-disclosed information to the negotiation? See Dochuk v. Dochuk (1999), 1999 CanLII 14971 (ON SC), 44 R.F.L. (4th) 97 (Ont. Div. Ct.), at para. 17.
[12] In determining whether a contract should be set aside, the court must first consider whether the party seeking such can demonstrate one or more of the circumstances outlined in s. 56(4) and if so, whether it is appropriate to set aside the agreement: see LeVan v. LeVan, 2008 ONCA 388, [2015] O.J. No. 4883. In Hartshorne v. Hartshorne, 2004 SCC 22, [2004] 1 S.C.R. 550, the Supreme Court of Canada held that courts should respect private agreements reached between spouses.
[13] The burden is on the party seeking to set aside the agreement, in this case the mother, to bring herself within one of the paragraphs of s. 56(4) and then to persuade the court to exercise its discretion to set aside the agreement: see LeVan; see also Dougherty v. Dougherty, 2008 ONCA 302, 89 O.R. (3d) 760.
Background
[14] The parties have been involved in litigation since their separation in January 2009. The children are now 15 and 13. The eldest has resided with the father since September 2018, but prior to that resided with the mother. The youngest has always resided with the mother. The mother disputes the circumstances that led to the eldest moving in with the father. It is clear from her testimony that she does not support the change in residence, and she regrets that she and the eldest child are estranged.
[15] The matter was scheduled for a four-day trial on the May 11, 2021 sittings. The parties engaged in settlement discussions in April 2021. On April 8, 2021, counsel for the father provided Minutes of Settlement to the mother by email. Counsel for the father wrote, “I strongly recommend that you obtain independent legal advice as soon as possible.” On April 9, 2021, the mother acknowledged receipt of the Minutes by email and in her response writes, “there are some errors within the body of the settlement that will need to be rectified. I’ll wait until I receive your clients proper NOA.” On April 21, 2021, the father’s counsel emailed the mother the final Minutes of Settlement. On April 23, 2021, the mother emailed a signed copy of the Minutes of Settlement to father’s counsel. On April 23, 2021, the mother emailed a signed waiver of independent legal advice (“ILA”). On April 24, 2021 counsel for the father emailed a fully executed copy of the Minutes of Settlement to the mother.
[16] On May 13, 2021, the mother brought a motion to have the Minutes of Settlement set aside and the agreement voided for reason of mistake. In the mother’s motion she states the settlement has been discovered to contain multiple errors.
[17] The mother did not file any evidence in support of her motion in advance of the hearing. She gave oral evidence and some documents were filed on consent of the parties in the hearing.
Positions of the Parties and the Evidence
Mother’s Position
[18] The mother is requesting that the Minutes of Settlement be set aside on three grounds. First, that there were multiple mistakes in the Minutes of Settlement. Second, she signed the Minutes of Settlement and the Waiver of Legal Advice without legal counsel and third, she signed the Minutes of Settlement under duress.
(a) Mistake
[19] The mother negotiated the Minutes of Settlement with counsel for the father. During their negotiations, the mother argues she noted errors in the Minutes of Settlement. It was her evidence that she did not intend the Minutes of Settlement to be admitted in their current form without amendment. However, at one point during her evidence she acknowledged that she signed the Minutes knowing there were errors and then indicated that she simply wanted the matter over as she did not want to go to trial.
[20] One example the mother provided in her evidence is that the father had accumulated arrears in child support in the amount of $4,994. The Minutes stated $2,500 in arrears was to be paid by the respondent to the applicant to satisfy all arrears accrued. Although she knew the amount was different when she signed the Minutes, the actual amount is $4,994, she claims that that was a mistake. The mother’s initials are next to the $2,500 amount on the final Minutes of Settlement. Her evidence is that she has received the bank drafts from the Respondent to satisfy their agreement. No communication was sent by the mother to the father regarding the bank drafts. It was also her evidence that she did not contact the father or his counsel to advise that she did not wish to receive the funds.
(b) Legal Advice
[21] At the commencement of the hearing the mother sought an adjournment to retain counsel. She argued that she was not familiar with the court process and required assistance from counsel. It was her evidence that she has been without legal counsel since July 2019. She testified that she has been trying to retain counsel and was anticipating counsel from one of three law firms (Torys, Caravel, or Weir Foulds) to accept her case. She could not provide names of counsel or a date when someone would be able to represent her. When she last had counsel, it was not her choice for him to be removed from the record but rather her counsel, Mr. Otto, had to stop the practice of law and therefore could not represent her. Since that time, she submits that she has spoken to 67 lawyers about her case. Due to the pandemic, she has not been able to find a lawyer to represent her.
[22] She argues that she signed the Minutes without counsel and that she should have been given an opportunity to retain counsel. She acknowledged that counsel for the father reminded her about obtaining ILA. She stated that it has not been her choice to be without counsel and she has been trying to retain someone since her previous lawyer went off the record. She has made efforts, but she has been unsuccessful. The mother argues the Minutes should be set aside since she was unable to review them with counsel.
[23] The mother testified that she signed the Minutes on April 23, 2021 and she initialed each paragraph. She also signed the waiver of legal advice. She attests that she hesitated to sign the ILA waiver, but she did eventually sign it and return it to the father’s counsel when asked by her to do so.
[24] The mother acknowledged that she has been involved in the court process since approximately 2009, she has filed documents and she has represented herself in prior motions. She has had legal counsel previously. She testified that she has been able to consult with counsel, as well as an advocate, since losing her counsel in 2019.
[25] On May 26 the mother was overheard on the phone during the hearing. When asked about who was on the phone with her, the mother said she was consulting with someone from a law firm, Weir Foulds, and provided the name Grace Moore. When cross-examined, she said she was not on the phone with counsel she was working with her advocate and that Grace Moore is her advocate, not counsel. She denied making the statement read to her from the court transcript about who was on the phone with her when the hearing resumed. The mother’s answer was, “I don’t recall” or, “that is not what I said.”
[26] The mother is a nurse by training and has a high level of education. She is an intelligent woman and acknowledged that she had an advocate working with her on the court record.
(c) Duress
[27] The mother testified that she felt pressured to sign the Minutes by the father’s counsel, as she was advised that if she did not, the matter would proceed to trial. She did not want the matter to go to trial, so she signed. But she felt bullied into signing. When questioned by the father’s counsel about feeling bullied she acknowledged that she never told the father’s counsel that she felt bullied until the focused hearing.
[28] The mother testified that she signed the Minutes under duress. She was forced to sign the Minutes and she is not well enough to make that determination. It was her evidence that she has been seeing a psychiatrist since 2019. In support of that proposition she filed a letter from Dr. Kumaran dated December 20, 2019. No medical professional testified about the mother’s medical condition.
[29] The mother testified that she suffers from several diagnoses and that she has not been able to work. She used to be employed as a nurse with St. Catharines Hospital in the oncology department. She testified that it was very stressful work, but she also experienced and continues to experience a great deal of stress as a result of her eldest child leaving her custody to live with his father. She has not had a relationship with the child since September 2018. Up until the Minutes of Settlement were signed, she did not have her eldest child’s address. A condition of signing the Minutes of Settlement was that the father would provide the address to her.
[30] The mother’s evidence was that she is currently off from work because of a bad foot and her mental health. She testified that she suffers from Post-Traumatic Stress Disorder as a result of her eldest child not being in her care or having a relationship with her. I have no doubt that the mother loves her eldest son and misses him very much. I believe the mother when she says she regrets him leaving her care to live with the father. She testified that she supported a recent campaign on Facebook for parental alienation and believes that that is an important cause.
[31] Despite filing for the Minutes to be set aside, when questioned on the exchange of funds as set out in the Minutes of Settlement, the mother testified that she has never communicated an intention not to receive those funds. The mother confirmed that she had received a bank draft from the Respondent for $1,000 but she had not received the $2,500 until May 27, 2021.
Father’s Position
[32] It is the father’s position that the mother has not met her onus to set aside the Minutes of Settlement. The father states that although there were errors noted in the Minutes of Settlement by email from the mother on April 9, 2021, negotiations occurred over a two week period, changes were made and the final Minutes were signed on April 23, 2021 and each paragraph was initialed by the mother and returned to the father’s counsel.
[33] Counsel for the father reminded the mother on multiple occasions to retain legal advice before the Minutes of Settlement were executed. The waiver of legal advice was also signed by the mother and returned to counsel for the father. The father argues that the mother has simply changed her mind and that does not meet the test to have Minutes of Settlement set aside.
[34] It is the father’s position that the mother does not meet the condition of duress. The mother never mentioned that she was being bullied until the matter was argued. Nor did the mother ever indicate that she was being pressured. The mother attested that not having her son in her care has impacted her mental health, however, she was unable to provide any evidence to support her allegations of duress.
[35] It is the father’s position that the mother’s motion should be dismissed and there should be a final order in accordance with the Minutes of Settlement. In support of this position, the father filed a motion for summary judgment stating that there is no genuine issue for trial. The father attests that the mother must put her best position forward and not simply rest on denials. The mother has not put any evidence before the court that supports the proposition that there is a genuine issue for trial.
Analysis
[36] In support of the mother’s position she provided oral testimony and she filed three documents. I will deal with each of the mother’s allegations for why the Minutes should not stand in order.
(a) Mistake
[37] The mother alleges the Minutes should be set aside by reason of mistake. As Professor McCamus writes, “different kinds of mistake may affect a party’s decision to enter into an agreement” (John D. McCamus, The Law of Contracts, 3rd ed. (Toronto: Irwin Law, 2020) at p. 576). In contract law, an agreement requires that the offeror demonstrate an intention to pursue a contract with the person to whom it makes the offer, and on what terms (Angela Swan & Jakub Adamski, Halsbury’s Laws of Canada, “Contracts”, (Toronto: LexisNexis Canada, 2021 Reissue), at HCO-10). To say it differently, “the important question is not what the offeror subjectively intended but what the offeree reasonably understood by what the offeror did or said” (Halsbury’s at HCO-10). In this case, the doctrine of mistake is inapplicable for setting aside the Minutes. The mother identified the so-called mistakes in the Minutes and pointed them out to the father’s counsel. This suggests that her reasonable understanding of the agreement that she signed was in line with that of the offeror, the father.
[38] The mother testified that there were problems with the Minutes. Her example included that the wrong number for child support arrears was in the Minutes. She acknowledged in her testimony however that in their negotiations the father offered to pay her $2,500 rather than the $4,994 as was outstanding. Eventually, in order to resolve the matter, she agreed to the lower amount and signed the Minutes. She acknowledged that she accepted the change by placing her initials next to each paragraph. Therefore, I do not accept the mother’s position that there was a mistake in the Minutes of Settlement, and it was not her evidence that she believed the amount to be $4,994 at the time she signed. Her initials next to paragraph C and paragraphs 9(a) and 9(b) where it is written that the respondent owes $2,500 to the applicant in support arrears, supports the father’s position that the mother accepted this amount.
[39] The evidence provided does not fall in with the situations contemplated in the jurisprudence for setting aside agreements due to mistake. The mother’s evidence was that she was aware of the difference in the number, but she wished the matter to be over and she signed the agreement to avoid a trial. The mother’s evidence suggests that she knew exactly to what she was agreeing, and therefore cannot have been mistaken as to the meaning of the contract within the meaning of the law.
(b) Legal Advice
[40] Second, the mother argues that she should have had ILA. She testified that she was unable to find anyone to represent her. She went on to testify that she has had many people helping her with her case since she has not had a lawyer of record. She testified that she has had counsel previously and more recently she has had an advocate helping her. Although she was reminded by the father’s counsel on several occasions to get independent legal advice, she signed the Minutes of Settlement without counsel.
[41] I found the mother’s request to adjourn the hearing to retain counsel disingenuous. As I have discussed above, on May 26, the mother was questioned about having a person on the phone with her during the hearing. The mother named the individual, but under cross-examination she denied that she had misrepresented the identity of this person to the court. This incident created concern about the mother’s credibility. The mother made a statement to the court under oath and then, when questioned about what she said, she changed her testimony.
[42] I do not accept the mother’s argument that the Minutes of Settlement should be set aside because she did not have independent legal advice. She testified that although she was hesitant to send back the waiver of independent legal advice, she eventually also signed that and sent it to counsel for the father. Her hesitation in signing the waiver indicates that she knew the nature and consequences of what she was signing.
[43] I believe the mother was aware that she was waiving legal advice. She said she wanted the matter resolved and to avoid a trial and that is why she signed the Minutes. I believe the mother raised the issue of independent legal advice to set aside the Minutes of Settlement.
[44] Although it would no doubt further affirm the Minutes if the mother had negotiated through counsel, or obtained ILA, her lack of legal representation does not mean that the Minutes should automatically be set aside. In Pruss v. Pruss, 2000 CanLII 22454 (ON SC), [2000] O.J. No. 3662, the court upheld a separation agreement, despite the wife not having received legal advice. Granger J. noted that she had the knowledge she could obtain advice, and the opportunity to do so (at para. 28). Similarly, in Dereski v. Ellis, 2012 ONSC 5263, [2012] O.J. No. 4961, McEwen J. upheld Minutes of Settlement and the subsequent Order when negotiated by the husband after dismissing counsel. The court reviewed the emails between the husband and his spouse’s lawyer and found that the “give and take” and compromise between the parties suggested he knew the contents of the agreement well, despite not having counsel (at para. 25).
[45] I agree with the father’s counsel. The mother is an educated person and she is intelligent. She has been involved in court proceedings since 2009. I believe she has been trying to delay and mislead the court. She did not tell the truth when she testified.
(c) Duress
[46] Finally, the mother argues that she signed the Minutes under duress as she was bullied by the father’s counsel and did not wish to go to trial. While it is true that a contract signed under duress would be voidable, the mother has not established duress in this instance. In contract law, the doctrine of duress requires more than simply pressure. In this instance, duress would have required the coercion of the mother’s will through pressure, dominating her will at the time that the contract was executed, so that she had no realistic alternative but to submit (Stott v. Merit Investment Corp. (1988), 1988 CanLII 192 (ON CA), 63 O.R. (2d) 545 (C.A.), 1988 CarswellOnt 887, at para 48, leave to appeal refused; Berdette v Berdette, 1991 CanLII 7061 (ON CA), [1991] O. J. No 788 (C.A), at para 22, leave to appeal refused; Ramdial v. Davis (Litigation guardian of), 2015 ONCA 726, [2015] O.J. No 5630, at para 42). In addition, as described in Toscano v. Toscano, 2015 ONSC 487, 57 R.F.L. (7th) 234, at para. 72, equity further recognizes a wider concept of duress, which includes coercion, intimidation, manipulation, or the application of illegitimate pressure.
[47] The test for duress is a high threshold, in this case there is no evidence of any attempt of the father or his counsel to dominate the will of the mother at the time she executed the Minutes. As Penny J. wrote in Ludmer v. Ludmer, 2013 ONSC 784, 33 R.F.L. (7th) 331, to establish duress, “there must be something more than stress associated with a potential breakdown in familial relations. There must be credible evidence demonstrating that the complaining party was subject to intimidation or illegitimate pressure to sign the agreement” (at para. 53, varied in 2014 ONCA 827, [2014] O.J. No. 5565, but not on this point). In this instance, even if I were to accept the mother’s testimony at face value, without my concerns for her credibility, she did not establish that she signed the Minutes under duress.
[48] When the mother was questioned about her evidence that the father’s counsel bullied her into signing the Minutes, she agreed that she had not raised that issue during the negotiations or after signing the Minutes. She agreed that she had not asked for extra time to negotiate the Minutes, that the negotiations occurred over a two-week timeframe and that changes were made to the Minutes before they were signed by the parties.
[49] I do not accept the mother’s testimony that she was under duress when she signed the Minutes of Settlement. I accept that she misses her son and would like him in her life, but I do not accept that she was forced to sign the Minutes or that her will was overborne. Further, the mother confirmed in her evidence that she never raised the issue of duress until the beginning of the hearing on the validity of the Minutes.
[50] I do not accept the mother’s evidence that her medical issues are such that she is unable to understand or execute Minutes of Settlement. The mother was articulate in her evidence. The mother was able to identify the issues in the case and question the father on his testimony. I do not accept that she was bullied into this agreement at any time.
[51] The father submits that the Minutes of Settlement should stand. The mother has not met her onus. The father submits that it is not in the children’s best interests to draw this out any further. They deserve closure. The parties had signed an agreement that reflects a final resolution that is in the best interests of the children. The mother signed the Minutes and agreed with the terms. There was no mistake, she has simply changed her mind. She has been representing herself before the court for the past two years. She knew she did not have legal counsel and she signed the Minutes anyway. She also signed the waiver of legal advice. There was no duress.
[52] I agree with the father. I do not believe the mother. I do not find her to be credible. The mother has not met the test to support the Minutes of Settlement being set aside.
[53] As the mother has failed to establish any of the s. 56(4) requirements that she relied upon, the Minutes of Settlement shall not be set aside.
[54] For the reasons set out above I make the following Order:
Orders Granted
[55] This court orders the following:
The motion to set aside the Minutes of Settlement is dismissed.
A final order shall be made in accordance with the Minutes of Settlement dated April 23 and 24, 2021.
Should the parties wish to make submissions on costs each party may file written submissions limited to three pages double spaced within 30 days of the date of this endorsement.
____________________________________________
J.D. Walters J.
Date: August 27, 2021