ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
S.R.
Plaintiff/Responding Party
– and –
S.H.
Defendant/Moving Party
Ivanna Iwasykiw, for the Plaintiff/Responding party.
Ken Dunham, for the Defendant/Moving party.
Heard: January 27, 2022
Endorsement
Maranger J.
[1]
Introduction
This was a motion by the defendant/moving party S.H. for an order dismissing the plaintiff/responding party S.R.’s claim for damages pursuant to rule 21.01 (3) of the Rules of Civil Procedure. The grounds for the relief sought was the proposition that the action was barred by reason of a prior settlement and consent order that resolved her claim on a final basis.
2The plaintiff/responding party takes the position that the plaintiff at the time of the “settlement” was a party under disability and that the settlement did not comply with rule 7.08 of the Rules of Civil Procedure in either form or substance and thus does not act as a bar to this plaintiff in continuing with her action.
[3]
Background
The relevant background to the motion can be summarized as follows:
i. In 2008 the defendant/moving party was married to V.R.; she had twin girls from a prior marriage they were 10 years old at the time. S.R. the plaintiff was one of her daughters.
ii. During the relationship S.H. the defendant had inappropriate sexual contact with the two children. In December 2009 he pled guilty to two counts of invitation to sexual touching and was sentenced to 90 days in jail followed by a period of probation.
iii. V.R. brought a Family Court application against S.H. The application included a tort claim for $500,000 on behalf of her two daughters alleging a broad range of sexual abuse.
iv. Minutes of settlement for all matters were executed and a Family Court order was consented to and signed by a local Master on March 8, 2011. The minutes of settlement and order stipulated that S.H. would forgo a $55,000 equalization payment; and that V.R. would agree/undertake to invest those funds for both daughters educations; he would also pay $5000 in trust to the mother for the benefit of the two daughters.
v. When the minutes of settlement and consent order were filed they included an affidavit by V.R. on behalf of her children, as well as an affidavit from her counsel. Counsel’s affidavit included a letter of opinion concerning the range of damages for sexual abuse against children. The material was filed in support of the settlement and consent order.
vi. In May 2021, the plaintiff S.R. issued a statement of claim against S.H. for damages in the overall amount of $1,750,000 for sexual abuse said to have occurred between 2004 to 2008 when she was 6 to 10 years old.
[4]
Issue
The issue to be determined on this motion is whether the FLA order of March 8, 2011, binds the plaintiff S.R. and bars her from suing the defendant S.H.
[5]
Analysis
After reading the material filed and hearing the oral arguments presented at the motion, I come to the conclusion that the order does not bind S.R. nor does it bar her from suing S.H. Consequently, I would dismiss the motion and for the following specific reasons:
i. The settlement arrived at and order signed on March 8, 2011 was not an infant settlement approved in accordance with rule 7.08 of the Rules of Civil Procedure. A master does not have the jurisdiction to approve an infant settlement. The rule stipulates “no settlement of a claim made by or against a person under disability, whether or not a proceeding has been commenced in respect of the claim, is binding on the person without the approval of a judge.”(emphasis added) The plaintiff at the time of the settlement was a party under disability in that she was an infant.
ii. The settlement itself was improvident, a share in $5000 is minimal and a $55,000 payment to the plaintiff’s mother with an undertaking by her that part of it will go towards S.R.’s education is not analogous to the payment of damages into court for her future benefit.
iii. The material filed in support of the settlement did not contain a professional opinion concerning the nature and extent of the potential long-term consequences that S.R. might face because of the sexual abuse she suffered at the hands of the defendant/moving party.
iv. The parties did not bring a proper rule 7.08 motion for the approval of an infant settlement. Obtaining such approval was a prerequisite for the resolution/order to bind the party under disability.
v. The protection of parties under disability is a vital concept in our civil justice system. Insisting upon strict compliance with rule 7.08 is an important safeguard in maintaining that fundamental principle.
vi. Res-judicata and issue estoppel do not apply here because the matter was never judicially decided and S.R.’s claim never legally finalised.
6While the court can understand the likely frustration of the defendant/moving party, in that he believed what took place more than a decade ago would be a full and final settlement of the claim against him. That said, however, nothing precludes him from bringing a third-party claim against V.R. or claiming a set-off against any compensation received by S.R. resulting from the settlement and court order of March 8, 2011.
[7]
Costs
With respect to the issue of costs, the court will accept two pages of written argument. The successful responding party shall deliver their arguments within 15 days of the release of this endorsement, and with the defendant moving party shall respond within seven days thereafter.
Released: February 9, 2022