COURT FILE NO.: FS-19-94274
DATE: 20220118
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Rodney Steven McNeil v. Mary Anne Cortez McNeil
BEFORE: Van Melle J.
COUNSEL: Ross W. Milliken, for the Applicant
Eun-Kyung Lee, for the Respondent
HEARD: January 18, 2022
E N D O R S E M E N T
[1] The respondent, Mary Anne Cortez McNeil, moves for judgment in accordance with the terms of the Offer to Settle dated October 14, 2020 (“October Offer”) of the applicant, Rodney Steven McNeil.
[2] Mary Anne accept the October Offer without any conditions, on October 5, 2021.
[3] Rodney takes the position that the October Offer was not a Rule 18 Offer pursuant to the Family Law Act, as he had not signed it personally.
[4] He takes the position that under the common law the Offer was not capable of acceptance because:
a) It was revoked by Mary Anne’s counter-offer dated October 30, 2020 (“counter-offer”), or
b) The October Offer ws implicitly revoked by a subsequent Offer to Settled dated April 26, 2021 (“April Offer”) made by Rodney, whose terms were less generous to Mary Anne than the October Offer.
[5] The parties married November 27, 1999 and separated April 6, 2017. There is one child of the marriage born June 2, 2002. Rodney commenced this court proceeding in February 2019. The main issues in this case are property division, child support and post-separation accounting.
[6] Mary Anne submits that the October Order was capable of being accepted as a Rule 18 Offer. Rodney says that because his lawyer signed on the line that he should have signed, the October Order is not a Rule 18 offer thus becoming an offer governed by common law. He says that as such a counter-offer revokes the offer.
[7] Rule 18 of the Family Law Act reads:
- (1) In this rule,
“offer” means an offer to settle one or more claims in a case, motion, appeal or enforcement, and includes a counter-offer. O. Reg. 114/99, r. 18 (1).
(2) This rule applies to an offer made at any time, even before the case is started. O. Reg. 114/99, r. 18 (2).
(3) A party may serve an offer on any other party. O. Reg. 114/99, r. 18 (3).
(4) An offer shall be signed personally by the party making it and also by the party’s lawyer, if any. O. Reg. 114/99, r. 18 (4).
(5) A party who made an offer may withdraw it by serving a notice of withdrawal, at any time before the offer is accepted. O. Reg. 114/99, r. 18 (5).
(6) An offer that is not accepted within the time set out in the offer is considered to have been withdrawn. O. Reg. 114/99, r. 18 (6).
(7) An offer may not be accepted after the court begins to give a decision that disposes of a claim dealt with in the offer. O. Reg. 114/99, r. 18 (7).
(8) The terms of an offer,
(a) shall not be mentioned in any document filed in the continuing record; and
(b) shall not be mentioned to the judge hearing the claim dealt with in the offer, until the judge has dealt with all the issues in dispute except costs. O. Reg. 114/99, r. 18 (8).
(9) The only valid way of accepting an offer is by serving an acceptance on the party who made the offer, at any time before,
(a) the offer is withdrawn; or
(b) the court begins to give a decision that disposes of a claim dealt with in the offer. O. Reg. 114/99, r. 18 (9).
(10) A party may accept an offer in accordance with subrule (9) even if the party has previously rejected the offer or made a counter-offer. O. Reg. 114/99, r. 18 (10).
(11) If an accepted offer does not deal with costs, either party is entitled to ask the court for costs. O. Reg. 114/99, r. 18 (11).
(12) An offer may be made, withdrawn or accepted by a special party or a child party, but neither a party’s acceptance of a special party’s or child party’s offer nor the special party’s or child party’s acceptance of another party’s offer are binding on the special party or child party until the court approves. O. Reg. 250/19, s. 6.
(13) If a party to an accepted offer does not carry out the terms of the offer, the other party may,
(a) make a motion to turn the parts of the offer within the court’s jurisdiction into an order; or
(b) continue the case as if the offer had never been accepted. O. Reg. 114/99, r. 18 (13).
(14) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:
If the offer relates to a motion, it is made at least one day before the motion date.
If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
The offer does not expire and is not withdrawn before the hearing starts.
The offer is not accepted.
The party who made the offer obtains an order that is as favourable as or more favourable than the offer. O. Reg. 114/99, r. 18 (14).
(15) The burden of proving that the order is as favourable as or more favourable than the offer to settle is on the party who claims the benefit of subrule (14). O. Reg. 114/99, r. 18 (15).
(16) When the court exercises its discretion over costs, it may take into account any written offer to settle, the date it was made and its terms, even if subrule (14) does not apply. O. Reg. 114/99, r. 18 (16).
[8] Rodney relies on the decision of Justice Quinn in Riss v. Greenough, 2002 CarswellOnt 1450 where he discussed Subrule 18(4) of the Family Law Rules. He said at paragraph 32 that the requirement to have an offer signed personally by the party making it and also by the party’s lawyer, if any was a straightforward, uncomplicated requirement and was mandatory. He held that the lack of a signature by counsel was sufficient to invalidate the offer and that there was nothing in rule 2 that should be used to resuscitate the offer. In addition, he found that the offer was not capable of enforcement and thus was not an offer under the Family Law Rules.
[9] I prefer Justice Healey’s interpretation of Rule 18(4). In Gogas v. Gogas, 2011 ONSC 5368 she said:
15 The result in Riss arose from a strict interpretation of subrule 18(4), which provides that an offer shall be signed personally by the party making it and also by the party's lawyer, if any. Quinn J. found that a lack of signature on an offer by a lawyer was sufficient to invalidate the offer. At para. 32 of the judgment he wrote:
...Subrule 18(4) states that "an offer shall be signed personally by the party making it and also by the party's lawyer, if any". This is a straightforward, uncomplicated requirement. It also is mandatory. The lack of a signature by counsel is sufficient to invalidate the offer. I do not think that anything in rule 2 should be used to resuscitate the offer and, being invalid, resort cannot be had to subrule 18(16)...
16 Pursuant to subrule 2.01(1)(a) of the Rules of Civil Procedure R.R.O. 1990, Reg. 194, a failure to comply with those rules is an irregularity, does not render a document in a proceeding a nullity, and the court may grant all relief on such terms as are just to secure the just determination of the real matters in dispute. The same wording is not found in Rule 2 of the Family Law Rules. Instead, the court is required to promote the primary objective, which is to deal justly with cases. Dealing with a case justly includes, as set out in subrule 2(3)(a), ensuring that the procedure is fair to all parties. With the greatest of respect to Quinn, J., I find it implicit in this directive that the court should not require strict compliance with a rule where to do so would mean that the case is dealt with unjustly. That would include, in appropriate circumstances, not nullifying a document. (emphasis added)
17 The policy reasons behind subrule 18(4) are unknown; the Rules Committee did not publish discussion papers prior to or after the Family Law Rules came into effect. One can easily speculate that the requirement of a lawyer's signature was included to ensure that the terms of an offer had received the scrutiny and advice of legal counsel before being extended to the opposing party in order to lessen the likelihood of the offer being ambiguously drafted, reneged or set aside. Where, as in this case, the offer is delivered to the opposing party through the offeror's lawyer's office, there can be little doubt that the lawyer has had input into the creation of the offer, has provided advice on the offer, and is aware of it being delivered to the opposing party. The signature of the lawyer adds nothing in such circumstances.
[10] In both Riss and Gogas, the subject offers were missing the signature of the lawyer. In the case at bar the October Offer has counsel’s signature twice and is missing Rodney’s signature. With two signatures on the document, it would appear at a glance to be in compliance and capable of acceptance in accordance with the Family Law Rules.
[11] In his affidavit in response to the motion, Rodney confirms that he authorized the October Offer. There is no explanation as to why Mr. Milliken signed the Offer twice and Rodney did not personally sign the Offer. Given that Rodney and his counsel prepared and delivered the October Offer, to now rely on Rodney’s failure to personally sign the October Offer is, in my view, contrary to common sense and the intent of the Family Law Rules.
[12] In addition to what I find to be the valid acceptance of the October Offer, the evidence establishes that there has been partial compliance with the Offer in that:
a) Rodney has taken possession of his personal property from the matrimonial home;
b) To date, the child has received $80,000 in connection with his inheritance from an estate (with the balance to be provided once the clearance certificate has been issued);
c) The funds which were being held by Rodney in trust for the child have been transferred to the child;
d) The subscribership to the RESP account (which at that time was in Rodney’s control) was transferred to Mary Anne on June 1, 2021.
[13] Two steps remain to be taken.
Mary Anne is to make an equalization payment to Rodney of $278,729 contemporaneously with the transfer of his interest in the matrimonial home to Mary Anne., with Mary Anne bearing the costs of the transfer.
Rodney is to pay to Mary Anne $829.88 on account of outstanding s.7 expenses.
[14] By virtue of her success on the motion, Mary Anne is entitled to her costs. I have reviewed both parties’ cost outlines. The respondent made an Offer to Settle on December 24, 2021. It achieves the same result as my order today. She is therefore entitled to a higher scale of costs from the date of the offer. I therefore award costs of $8,000 to Mary Anne. The costs are payable within 30 days but can be credited against Mary Anne’s payment to Rodney pursuant to the October Offer, if all agree.
Van Melle, J.
DATE: January 18, 2022
COURT FILE NO.: FS-19-94274
DATE: 20220118
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Rodney Steven McNeil, Applicant
AND
Mary Anne Cortez McNeil, Respondent
COUNSEL: Ross W. Milliken, for the Applicant
Eun-Kyung Lee, for the Respondent
ENDORSEMENT
Van Melle J.
DATE: January 18, 2022