Introduction

[1] In family law, a domestic contract or other settlement document is usually based on a much less formal arrangement arrived at by way of negotiation. The issue raised in this summary judgment motion is whether a series of negotiations between these parties’ counsel at a settlement conference on February 1, 2021 resulted in an enforceable agreement for a final court order.

[2] After a six-year marriage, these parties separated on September 9, 2019. The Applicant remained in the matrimonial home in Beeton, Ontario while the Respondent moved to Brampton.

[3] The parties have one daughter, Aadhya, who is three years of age. Pursuant to an order made by Jain J. on December 19, 2019, care of Aadhya is shared between the parties.

[4] This motion is mainly about the jointly owned matrimonial home. Mr. Ahuja wishes to purchase the Respondent’s interest in the home and expressed that intent as early as February 25, 2020 at a case conference. The parties agreed at that point in time that the Applicant could purchase the Respondent’s interest in the home and agreed on a process for appraising the property.

[5] An appraisal was obtained by the Applicant in November 2020 which suggested that the home was worth $539,000. There was some discussion between the parties after that, and they attended at a settlement conference before Douglas J. on February 1, 2021, where some of the issues, specifically the home and lump sum spousal support, were discussed. Along with the parties, counsel were present, Ms. Neetu Virk for the Respondent and Ms. Heather McKnight for the Applicant. After the parties had exchanged a series of documents called “draft partial Minutes of Settlement”, Ms. McKnight on behalf of the Applicant purported to accept as an offer the last such document sent to her by the Respondent’s counsel. The Applicant says that this resulted in a final agreement between the parties; the Respondent denies this to be the case.

[6] Mr. Hayes now acts for the Applicant and brings a motion for summary judgement to uphold the agreement that his client says that he made with the Respondent at the settlement conference. He has filed his client’s affidavit in support of the motion. The Respondent asks that the summary judgment motion be dismissed and also brings a cross-motion for the listing and sale of the matrimonial home pursuant to the Partition Act.[^1] She relies upon the affidavit of the Respondent’s solicitor, Ms. Virk, as well as an affidavit sworn by the Respondent herself. Because Ms. Virk filed an affidavit, Mr. Kaler argued the motion on the Respondent’s behalf although Ms. Virk was at the counsel table.

[7] Unfortunately, these motions were heard more than a year after the settlement conference was held in February, 2021. Mr. Hayes explains that the Applicant’s counsel, Ms. McKnight became ill soon after the settlement conference resulting in two subsequent changes of solicitor. There was also delay while the parties attempted to obtain a transcript of the February 1 conference, only to find that the recording was inaudible to the reporter. The value of the home has undoubtedly increased in value substantially since the motion, fueling the discontent of the Respondent who feels that the purported “agreement” is unfair to her. The Applicant on the other hand has continued to pay all of the expenses of the home since November, 2020 on the understanding that he would be purchasing the home and he believes that the increase in value is the only thing that matters to the Respondent who is only resiling from the agreement due to hindsight.

Disposition

[8] For the reasons set out below, I have dismissed the Applicant’s summary judgment motion. The issue of whether an agreement was made on February 1, 2020 shall proceed to trial. As well, I have also dismissed the Respondent’s motion to sell the home as this claim would prejudice the Applicant’s claim at trial to permit his purchase of the Respondent’s interest in the home which he claims was agreed to on February 1, 2021.

Analysis

[9] At the February 1, 2021 settlement conference, the parties exchanged a number of documents, titled “partial Minutes of Settlement”, which addressed the issues of the Applicant’s purchase of the Respondent’s interest in the home and the issue of lump sum spousal support payable by the Applicant to the Respondent.

[10] The first document, partial Minutes completed by Ms. McKnight for the Applicant, was sent to Ms. Virk at 3:37 that afternoon. The Minutes provided for a value of the matrimonial home at $570,000 and the mortgage on the home of $352,660 which resulted in a purchase price of the Respondent’s interest in the home at $108,670.[^2] The partial Minutes provided that the Applicant would purchase the home for that amount and would also pay the Respondent lump sum spousal support of $15,000. Ms. Ahuja would be removed from the matrimonial home mortgage and the Applicant would also assume a car loan on the van that he was using.

[11] At 4:04 p.m., Ms. Virk sent back revised “partial Minutes of Settlement” to Ms. McKnight. Those Minutes increased the value of the home upward by $5,000 and also demanded lump sum spousal support of $25,000. The value of the amount of the buyout of the Respondent’s interest in the home was revised in those Minutes to “TBD” and the figure of $108,670 was crossed off. The remaining terms of the draft Minutes were unchanged from what had been sent by Ms. McKnight earlier that day.

[12] At 5:27 p.m., Ms. McKnight sent back an email stating that her client “accepts the terms of your increase in house buyout” and confirms that this would result in a buyout figure of $111,170. She also stated that her client “will accept your client’s offer to settle all spousal support for a lump sum settlement of $25,000” but requests 45 days to pay that amount. Ms. McKnight also stated that Mr. Ahuja “agrees to the rest of the terms in your responding offer to settle / draft partial minutes of settlement”.

[13] Mr. Hayes says that this email constituted the acceptance of an offer made by the Respondent and thereby resulted in a binding agreement between the parties on the purchase of the home and lump sum spousal support. Mr. Kaler on behalf of the Respondent says that the Respondent’s solicitor, Ms. Virk, never even made a formal offer to settle but had merely been exchanging documents for “discussion purposes.” He says that the parties agreed on nothing and that this was reflected in Justice Douglas’ endorsement which confirms that no agreement was arrived at that day. Ms. Virk deposes that her client became upset and left the zoom meeting, stating that she needed time to digest what had occurred that day and that she did not trust the Applicant to stick with any agreement that they might arrive at. Mr. Kaler states that there remained outstanding issues after the exchange of Minutes and emails, and that an agreement without all of its essential terms remained nothing other than an incomplete negotiation.

[14] The major issue in this summary judgment motion is whether the exchanges of the “partial Minutes of Settlement” and Ms. McKnight’s 5:27 p.m. email purporting to accept the “terms of your increase in house buyout” are an offer and acceptance resulting in a binding agreement obligating the Respondent to sell her interest in the matrimonial home to the Applicant for $111,170 and also to accept lump sum spousal support of $25,000.

[15] Throughout all of this, it must recalled that this is the Applicant’s motion for summary judgment. The dismissal of the motion does not mean that no agreement was arrived at, only that it is a genuine issue for trial as set out in r. 16(5) of the Family Law Rules.[^3] In other words, a dismissal of the motion may not necessarily result in an order for the sale of the home as the transfer of the home to the Applicant remains a live issue until trial.

[16] Under r. 16(5), the court may grant summary judgment without a trial on an issue if there is no “genuine issue for trial”. Under that rule, the court has enhanced powers to determine credibility and to weigh the evidence provided by the parties; generally those enhanced powers should only be resorted to if the issue cannot be determined on the strength of the affidavits filed in support of the motion: see Hryniak v. Mauldin, 2014 SCC 7, [2014] S.C.J. No. 7 and Philion v. Philion, [2015] O.J. No. 3587 (S.C.J.). If the matter still cannot be determined by reference to the enhanced powers in the rule, the case law suggests that I should remain seized and call oral evidence by way of a focused trial.

[17] The Respondent says that there is no agreement based upon the following:

a. The “Partial Minutes of Settlement” sent by Ms. Virk at 4:04 p.m. were not an “offer to settle” capable of acceptance. In the words of Ms. Virk in her affidavit, her client’s “understanding was that the same were being exchanged for the purposes of discussion.”[^4]

b. Even if the partial Minutes were an offer capable of acceptance, the email of Ms. McKnight sent back at 5:27 p.m. on the date of the settlement conference was not an unqualified acceptance of the offer as it inserted a term for when the lump sum spousal support would be paid and suggested some small credits to the payment to be made by the Applicant to the Respondent when he purchased her interest in the home. There is, according to Mr. Kaler, insufficient evidence that the parties were ad idem to permit summary judgment as requested by the Applicant.

[18] It is well established law that parties do not have to necessarily comply with s. 55 of the Family Law Act[^5] for there to be a binding agreement between them: see Harris v. Harris, [1996] O.J. No. 2430 (Gen. Div.). If an agreement has been arrived at that contains all of the essential terms of the settlement, then the fact that a formal separation agreement has not been signed is not fatal to the arrangement. In Gallecher v. Friesen, [2014] O.J. No. 2359 (C.A.), the court noted, at para. 27:

Justice Pepall's decision in Virc v. Blair[^6] is consistent with a substantial body of case law in Ontario, and in other provinces with similar legislation, holding that the strict requirements of s. 55(1) may be relaxed where the court is satisfied that the contract was in fact executed by the parties, where the terms are reasonable and where there was no oppression or unfairness in the circumstances surrounding the negotiation and execution of the contract.

[19] The law was summed up by the Court of Appeal in Bogue v. Bogue (1999), 1999 3284 (ON CA), 46 O.R. (3d) 1 (C.A.) where Rosenberg J.A. quoted from Bawitko Investments Ltd. v. Kernels Popcorn Ltd. (1991), 1991 2734 (ON CA), 79 D.L.R. (4th) 97 (Ont. C.A.) as follows:

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 . . .

[20] The issue is, therefore, whether the parties would have reasonably thought that an agreement was struck when Ms. McKnight wrote and advised that she was accepting the terms of the partial Minutes forwarded to her by Ms. Virk late in the day on February 1, 2021.

[21] The Respondent says that these essential terms were not agreed to in light of Ms. McKnight’s reservations in her acceptance email of February 1, 2021. In her acceptance of the offer, Ms. McKnight inquires as to whether the lump sum spousal support can be paid 45 days after closing and as well asks about payment of costs owing by the Respondent to the Applicant and child support arrears owing by the Applicant. These were not, in my view, “essential terms” of the agreement. The inquiry about payment in 45 days is nothing other than that: an inquiry. It cannot be construed as a demand or counter-offer and would not vitiate any acceptance of the offer. The other two matters involve no changes in the agreement as they address matters that were already agreed to or determined being child support arrears and costs already ordered by the court. All that Ms. McKnight was inquiring as to was whether those issues could be addressed at the same time as the buyout of the Respondent’s interest in the home. At best these were ancillary or terms incidental to the terms of the settlement which did not have to be fully agreed upon for there to be a binding agreement: see Ward v. Ward, 2011 ONCA 178 at para. 54.

[22] However, I believe that there is a genuine issue for trial as to whether an agreement was arrived at between the Applicant and the Respondent through Ms. McKnight’s “acceptance” of the terms of the Minutes of Settlement. I say this for three reasons:

a. It is unclear as to whether the parties understood that the draft partial Minutes had to be signed prior to a final agreement being arrived at. If they did understand this to be the case, the negotiations and acceptance were subject to the signing of the Minutes and the agreement had no legal effect until the partial Minutes were actually signed by both parties. This would make it no more than a “contract to make a contract” within the meaning of Bawitko Investments, supra.

b. There is no documentary or other evidence that the Respondent ever agreed to the buyout of the home and lump sum support as set out in her counsel’s draft of the partial Minutes of Settlement. Her conduct and evidence militate against a finding that she ever agreed to make a proposal in the terms of the document sent by her counsel on February 1 or subsequently thought that there was a final agreement between the parties regarding the home and spousal support.

c. There are concerns raised in the Respondent’s evidence of “oppression and unfairness” which may also militate against a finding that the agreement was struck by the Applicant’s acceptance of the offer made by Ms. McKnight.

Necessity of Signed Minutes

[23] Firstly, there is evidence that may support the contention that the parties contemplated the signing of the partial Minutes prior to there being a final agreement in this matter. The past behaviour of the parties certainly supports this issue: on January 19, 2021, 12 days prior to the settlement conference, Ms. McKnight sent signed partial Minutes which she believed reflected the agreement already arrived at between the parties and the next day, she advised Ms. Virk that her client needed the signed Minutes to obtain mortgage financing and asks, “Wouldn’t it be great to have this crossed off our list before the upcoming conference?”[^7] From that email, it is clear that signed Minutes were necessary for the Applicant to obtain his financing in this matter and that the parties both thought that signed partial Minutes of Settlement were necessary prior to the agreement being finalized. One has to ask what changed between January 20, 2021 and the settlement conference that took place 12 days later?

[24] The behaviour of the parties appears to confirm this as well. Ms. Ahuja says that she left the settlement conference because she was suspicious that the Applicant would pull the rug out from under her as she felt that he had done before and because she “was under a lot of stress and did not feel comfortable finalizing any issues because of Vivek’s changing positions and unfair demands.”[^8] Justice Douglas reflected the Respondent’s discomfort at finalizing matters in his endorsement of that day. This was confirmed by an email from Ms. Virk at 6:12 advising that her client had left and that it “has been a long day for all of us”. She suggests continuing “discussions via correspondence and streamlining of offers.” Notably, there is nothing from Ms. McKnight stating that there was no need for any further discussions as an agreement had already been arrived at (which may be because the Minutes were partial in nature) and the parties did continue to negotiate after that date.

Evidence of Offer and Acceptance

[25] This issue involves whether an objective observer would believe on the record supplied to me that there had been a formal offer and acceptance in respect of the purchase of the Respondent’s interest in the matrimonial home and the lump sum spousal support.

[26] This is all about offer and acceptance. The issue is whether the record that I have been supplied with warrants an order without trial that there was an offer made by the Respondent which was accepted by the Applicant. Mr. Kaler on behalf of the Respondent says that there was never a formal offer made within the meaning of r. 18 and therefore there can be no acceptance or any motion to enforce the terms of the offer as accepted.

[27] The confusion in this regard may arise from the fact that Mr. Hayes and his client relied in their factum on r. 18(13) which permits a motion to turn an accepted offer into a court order. To be clear, it is apparent that the exchanges of draft partial Minutes of Settlement did not comply with the formalities of an offer under that rule insofar as they were not signed by the lawyer and the party as required by that rule. It is apparent that r. 18 is not as applicable in this matter as is the law of contracts and offers and acceptance.

[28] Mr. Kaler is correct that there was never a formal offer to settle served by either party in this matter. The only document entitled “Offer to Settle” was prepared by Ms. McKnight on January 29, 2021 and was not signed by either Ms. McKnight or her client. That offer along with the draft partial Minutes of Settlement was sent with her 3:37 p.m. email on February 1, 2021 during the settlement conference.[^9] That offer was never accepted, and the only response in writing to both the offer and the draft partial Minutes appears to have been Ms. Virk’s draft of the partial Minutes of Settlement forwarded to Ms. McKnight at 4:04 the same day, which was the “offer” that Ms. McKnight accepted by email later in the day.

[29] The law on the role of offers to settle was summed up by Wildman J. in Smith v. Smith, [2007] O.J. No. 1947 (S.C.J.). Essentially, there are two purposes to an offer; one is to address the issue of costs after completion of a trial or motion, in which case the formalities required by r. 18(4) and 18(14) should be complied with. The secondary (but perhaps the most important) purpose of an offer is the issue of settlement; is the offer capable of acceptance and if accepted, does it become a binding agreement? At para. 27 in Smith, Wildman J. states:

Rule 18 of the Family Law Rules creates a way for litigants to make formal offers to settle their cases and, possibly, to attract some cost benefit by doing so. Offers that do not meet the technical requirements of rule 18 are still valid offers. They may be taken into account in considering costs and they can still, of course, form the basis of a valid contract if accepted by the other side. However, offers that do not comply with rule 18 are governed by the principles of general contract law rather that the special provisions of the Family Law Rules.

[30] The Applicant and his solicitor were clear that they thought that an agreement had been arrived at on February 1, 2021. On February 5, 2021, when the Respondent sent revised Minutes of Settlement which contained an increased amount of lump sum spousal support of $38,000 along with provisions regarding child support and arrears, Ms. McKnight took exception to these Minutes based upon the fact that there was already an agreement stating in her letter of March 2, 2021:

My client cannot understand why your client would not be held to honour their offer as provided in writing during Court on February 1st, 2021 which was accepted by us on the same day as could be confirmed by both the Court record and our written correspondence confirming our acceptance on that day. His Honour specifically addressed this issue indicating that if a Motion judge found that there was a valid offer and acceptance resulting from our correspondence that day that your client would be held to those terms and could face cost consequences for now refusing to honour the agreement.[^10]

[31] However, there was never at any point in the negotiations any corresponding statement by the Respondent’s solicitor or the Applicant indicating that there was an agreement. All that is on the record is a blank email sent at 4:04 on February 1, 2021 attaching the draft partial Minutes of Settlement amended by Ms. Virk. Mr. Hayes characterizes this as an “offer” and it may be seen as that once the parties have had an opportunity to give evidence in this matter. However, it may also have been that Ms. Ahuja was unwilling to come to an agreement in this matter and had not instructed her solicitor to make an offer, but to simply explore settlement options as she seems to say in her affidavit. There is absolutely nothing on the record other than the draft Minutes which indicate that the Respondent was making a settlement proposal as contained in those draft Minutes.

[32] This is confirmed by the endorsement of Justice Douglas of that day. In fact, that endorsement indicates that there was no agreement because “time does not permit both parties to develop the necessary level of comfort to finalize some of the issues.” There is no mention of whether a valid offer or acceptance was submitted, and the transcript was inaudible. There is no evidence before this court that Justice Douglas had spoken of the fact that, in the words of Ms. McKnight, “there was a valid offer and acceptance resulting from our correspondence that day” as no transcript of the conference can be obtained and Justice Douglas’ endorsement fails to confirm this assertion.

[33] The Respondent says in her affidavit that she never thought that an offer had been made by her solicitor at the settlement conference. She said that draft partial Minutes were prepared by her lawyer but that she had never signed them, implying that she posited that they were not legally binding without her signature. She also says that she did not feel comfortable completing matters that day because she did not trust the Applicant to follow through.

[34] Her state of mind is important, but that does not govern whether there was an agreement. As stated in Bogue, supra, the real issue is whether the actions of the parties give rise to what would appear to a reasonable person as an offer and acceptance:

In any event, the test to be applied is set out in Smith v. Hughes (1871), L.R. 6 Q.B. 597 at p. 607, [1861-73] All E.R. Rep. 632:

If whatever a man's real intention may be, he so conducts himself that a reasonable man would believe that he was assenting to the terms proposed by the other party, and that other party upon that belief enters into the contract with him, the man thus conducting himself would be equally bound as if he had intended to agree to the other party's terms.

[35] In Andrews v. Lundrigan, 2009 ONCA 160, the court stated at para. 8 that the test is what a “reasonable person” would perceive to be the case:

As the passage quoted above from Bawitko indicates, the intention of the parties is important in determining whether or not there was a final settlement that was merely to be recorded in a formal document. The term "intention" is not used in a subjective sense but rather to refer to whether "in the eyes of a hypothetical onlooker [the parties] appeared to have reached an agreement": G.H.L. Fridman, The Law of Contract in Canada, 5th ed. (Toronto: Thomson Carswell, 2006), at p. 6. In making this determination, the court will look at the conduct of the parties at the time. As was said in Bawitko at p. 104, if in examining what transpired it is apparent that "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", there is no contract, or in this case, no settlement.

[36] The difficulty for the Applicant is that throughout, although it is clear that he thought that there was an agreement, the Respondent never acknowledged that position either in her own evidence or through counsel. After the purported “acceptance” of the “offer” by Ms. McKnight, Ms. Virk then said that her client was tired and had left and suggested that the parties “continue discussions via correspondence and streamlining of offers. Hopefully, we can then schedule a 4way meeting if and when required.” These are not the words of a lawyer who thought that an agreement had been concluded. She wanted to continue discussions and not sign formal Minutes.

[37] In fact, nowhere on the record does Ms. Ahuja acknowledge or agree that there was ever a final settlement on the issue of the home or lump sum spousal support. The closest the Respondent came was the attachment to Ms. Virk’s February 1, 2021 email which were a set of draft partial Minutes but that was uncharacterized in the email from counsel; it was sent as an attachment and nothing more. In all of the cases that were cited to me where an agreement was found to have been struck, both parties appeared to act, at least at some point in the process, as though there had been an agreement arrived at between the parties. That is not the case here as the Respondent nowhere acknowledges by word or actions that any agreement was made or finalized on February 1, 2021.

[38] The parties’ conduct after the settlement conference appear to confirm this.

[39] On February 3, 2021, counsel emailed back and forth about a teleconference on the issues that had been discussed at the settlement conference, including, according to Ms. Virk, the purchase of the Respondent’s interest in the matrimonial home. There was no indication from either counsel that they thought that a settlement had already been arrived at on that issue.

[40] On February 5, Ms. Virk supplied a further set of partial Minutes of Settlement. These Minutes purported to add things not contained in the offer made by Ms. Virk at the settlement conference. For example, there was now a provision for child support and arrears owing by Mr. Ahuja. The lump sum spousal support was now $38,000 rather than the $25,000 which Mr. Ahuja purported to agree to. Ms. McKnight, now concerned as to the Respondent’s intentions, stated in her responding letter that there had already been an agreement, both on the record in court and as reflected by the last set of Minutes sent to her on February 1. However, again, the actions of the Respondent and her solicitor appear to show that neither Ms. Ahuja nor her counsel believed there to be any sort of agreement arrived at on February 1, 2021. The record shows that only the Applicant, and not the Respondent, acted on the belief that a final agreement on the home and lump sum spousal support was arrived at.

[41] LaForme J. said in Harris that there had to be evidence of a “meeting of the minds” but that evidence is lacking throughout concerning the Respondent. There is no evidence that the Respondent ever acknowledged an agreement between the parties and she never conducted herself as though an agreement had been arrived at. A reasonable person reviewing this record could easily be left with the impression that the Respondent never made an offer or was ad idem with the Applicant on the issue of the home and lump sum spousal support. A trial and oral evidence, including cross-examination, is necessary to determine the issue of whether there is evidence of a “meeting of the minds” between these parties.

Oppression and Unfairness

[42] In her affidavit, Ms. Ahuja says that she was a partner in an abusive marriage. She accused the Applicant of family violence including an assault on her. She says that she does not trust her husband to follow through with an agreement and that he pressures her to go outside of court orders and agreements. She says that his conduct was one of the main reasons she was not willing to come to an agreement at the settlement conference.

[43] On this point, I do not find Ms. Ahuja’s evidence to be overly credible. For example, she complains that Mr. Ahuja persisted in changing his position and that she was unwilling to further negotiate with him on February 1 because “Vivek continued to press for more and more changes in all issues”[^11] and “because of Vivek’s changing positions and unfair demands”.[^12] Yet it was her that resiled on the lump sum support that she had originally proposed at $25,000, later demanding $38,000. It was her decision to demand another appraisal of the property which confirmed that it was in her interest to have the home sold rather than follow through on the buyout that she had initially agreed to on February 1. She appears to be the individual who changed her position and made additional demands. I therefore find her evidence to be less credible than that of the Applicant.

[44] However, even if not overly credible, the Respondent complains of unfairness and that she suffered from alleged abuse perpetrated on her by the Applicant. Unfairness in the negotiations is a factor to be accounted for according to LaForme J.’s decision in Harris: see para. 10. In Virc v. Blair, supra, the Court of Appeal stated that the formalities of s. 55 can be relaxed where, inter alia, the court finds there to be no “oppressive” conduct. It is difficult on the basis of contested affidavits to determine whether family violence, abuse and control issues played a role in this series of transactions and only viva voce evidence can permit the court to determine whether it did.

[45] I therefore find that there is a genuine issue for trial concerning the issue of whether an agreement was struck when Ms. McKnight “accepted” the Respondent’s “offer” as sent to her at 4:04 p.m. on February 1, 2021. There shall be a trial of the issue as set out below.

Partition and Sale

[46] The Respondent moves for partition and sale of the matrimonial home. No authorities for this claim were cited to me during argument. However, it is clear that a joint tenant has a prima facie right to a sale of the home subject to certain exceptions: see Arlow v. Arlow (1991), 1991 12940 (ON CA), 33 R.F.L. (3d) 44 (Ont. C.A.) aff’g 1990 12267 (ON SCDC), 27 R.F.L. (3d) 348 (Ont. Dist. Ct.)

[47] One of those exceptions is the issue of whether a sale of the property will prejudice the co-tenant’s claims at trial. In the leading case of Silva v. Silva (1990), 1990 6718 (ON CA), 1 O.R. (3d) 436 (C.A.) Finlayson J.A. stated that:

… where substantial rights in relation to jointly owned property are likely to be jeopardized by an order for partition and sale, an application under the Partition Act should be deferred until the matter is decided under the F.L.A. Putting it more broadly, an application under s. 2 should not proceed where it can be shown that it would prejudice the rights of either spouse under the F.L.A.

[48] Here there are substantive rights to be addressed at trial, in particular the Applicant’s claim that there was an agreement by the Respondent to sell her interest in the jointly owned property to him. Absent the putative agreement, there is no right at law to order a transfer of jointly owned property by one party to another: see Mudronja v. Mudronja, 2014 ONSC 6217 and Laurignano v. Laurignano, 2009 ONCA 241, 65 R.F.L.(6th) 15. Just because I have dismissed the motion for summary judgment does not mean that there is no agreement by the Respondent to sell her interest in the home to the Applicant; it means that there is a triable issue concerning that issue.

[49] The Respondent does not move for summary judgment or for an order that there is no case for a transfer of the home to go to trial. For similar reasons as noted above, I would have dismissed such a motion in any event as a trial may show there to be a genuine issue to go to trial on the issue of the Applicant’s claim for an agreement on the issues contained in the last set of draft Minutes. Both parties have the right to have their positions tested based on oral evidence.

[50] Therefore, the Applicant’s claim to uphold that agreement would be prejudiced if I ordered a sale of the home as requested by the Respondent as, once the home is sold, the Applicant has lost his right to purchase the Respondent’s interest in the home. Therefore, the Respondent’s motion for partition and sale of the home is also dismissed.

Disposition

[51] For all of these reasons, I am therefore dismissing the motion for summary judgment. The issue of whether an agreement was arrived at must go to trial with viva voce evidence.

[52] As noted above, I am also dismissing the Respondent’s claim for partition and sale of the matrimonial home.

[53] As suggested in Hryniak v. Mauldin, I should, if possible, seize myself of this matter. Therefore, absent a settlement of issues herein, the issue of the agreement and partition and sale of the home shall be the subject matter of a focused trial to be held during the November, 2022 sittings. I expect that the witnesses will be the parties and their counsel at the conference with the affidavits which have been filed to be the witness’ evidence in chief subject to vetting the affidavits for inadmissible evidence. The Respondent has waived privilege by the filing of affidavits by her solicitor; it is not clear as to whether the Applicant is waiving privilege. However, if the parties wish to schedule an appointment virtually to address trial scheduling issues, an appointment with me to do so can be scheduled through the trial coordinator.

[54] The parties may also schedule, if they wish, a trial scheduling conference to place other issues before the court during the November, 2022 sittings. I can also address additional issues to be dealt with at trial, but I cannot, of course, conduct any sort of settlement conference and if the parties wish to discuss settlement, a further conference should be scheduled before Justice Douglas.

Costs

[55] Regarding costs, success is divided on this motion. Normally, costs of the motion would be in the cause but I am not aware of whether there are any offers made on the motion by either of the parties. The parties shall make submissions on costs of the motion to be no more than four pages in length not including offers to settle and bills of costs. The Applicant shall provide his submissions first and then the Respondent on a 15-day turnaround. There shall be no right of reply to the Respondent’s submissions.

McDermot J.

Released: July 6, 2022

[^1]: R.S.O. 1990, c. P.4 [^2]: One half of ($570,000 - $352,660) [^3]: O. Reg. 114/99 [^4]: Affidavit of Neetu Virk sworn April 19, 2022, para. 40. [^5]: R.S.O. 1990, c. F.3 [^6]: 2014 ONCA 392 [^7]: Email from Ms. McKnight to Ms. Virk dated January 20, 2021 attached as Ex. L to the affidavit of the Applicant sworn November 25, 2021. [^8]: Affidavit of Respondent sworn April 19, 2022, para. 48. [^9]: It is unclear as to whether this offer was sent previously on January 29, 2021. [^10]: Ibid., Ex. V [^11]: Affidavit of Respondent sworn April 19, 2022, para. 40 [^12]: Ibid., para. 48

Ahuja v. Ahuja, 2022 ONSC 3906

Case Summary

Introduction

Disposition

Analysis

Necessity of Signed Minutes

Evidence of Offer and Acceptance

Oppression and Unfairness

Partition and Sale

Disposition

Costs

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 4

Legal Tests 3

Legislation 3