Court File and Parties

COURT FILE NO.: FC-20-009 DATE: 2023-02-13 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: David Karpuk, Applicant AND: Aimee Michelle Davidson, Respondent Philip John Foster, Respondent Ken Altenburg, Respondent

BEFORE: Justice M. Tweedie

COUNSEL: Katerina Svozilkova, Counsel for the Applicant Ben Fortino, Counsel for the Respondent Ms. Davidson Mr. Foster, not appearing Mr. Altenberg, not appearing

HEARD: December 14, 2022

Endorsement

[1] The Applicant, Mr. Karpuk, seeks enforcement of a settlement he claims was reached when, on March 9, 2022, he accepted the Respondent Ms. Davidson’s Offer to Settle, which was attached to Ms. Davidson’s settlement conference brief in the form of Minutes of Settlement, dated May 25, 2021.

[2] Ms. Davidson opposes the relief requested and does not agree that Mr. Karpuk’s execution of what she refers to as outdated and previously rejected Minutes of Settlement constitutes acceptance of an offer. Ms. Davidson seeks dismissal of Mr. Karpuk’s motion and an order setting the next conference date in order to move the matter forward.

Background

[3] Ms. Davidson has two children, M. and B. The respondent Mr. Foster is M.’s biological father. There is an order that Mr. Foster pay child support to Ms. Davidson for M. Mr. Foster is paying this support. The Respondent Mr. Altenburg is B.’s biological father. There is an order that Mr. Altenberg pay child support to Ms. Davidson for B. Ms. Davidson’s evidence is that Mr. Altenberg is not paying support, but it is enforceable through the Family Responsibility Office. Neither Mr. Foster nor Mr. Altenberg are participating in these proceedings.

[4] Mr. Karpuk and Ms. Davidson had a long-term friendship and a brief romantic relationship. In 2008 Mr. Karpuk became involved in the children’s care due to personal circumstances of Ms. Davidson. The extent of his involvement is unclear. Mr. Karpuk states that the parties shared time with the children until approximately May 2019 when he alleges Ms. Davidson began to “minimize” the Applicant’s role in the children’s lives. Ms. Davidson denies he was ever the primary caregiver to the children.

[5] Mr. Karpuk commenced an Application on January 6, 2020. In his Application he seeks joint custody, specified access, holiday timesharing, retroactive and ongoing child support, and sharing of section 7 expenses. In her Answer, dated January 27, 2020, the mother seeks sole custody, specified access for Mr. Karpuk, child support from Mr. Karpuk, but does not make any claims against Mr. Foster or Mr. Altenberg.

Litigation History

[6] On January 27, 2020 the parties attended an emergency case conference. On that date an Order requesting involvement of the Office of the Children’s Lawyer was made.

[7] There was a further case conference on January 30, 2020. Mr. Karpuk and Ms. Davidson resolved interim issues by way of temporary without prejudice Minutes of Settlement, which resulted in the Order of Justice Lafrenière dated January 30, 2020.

[8] On June 15, 2021 a combined Settlement Conference and Trial Scheduling Conference was held. Justice Lafrenière’s endorsement reads as follows:

a. This matter was set for a combined settlement conference and TSC today. The parties are very close to resolving all issues in this matter. The issue of child support cannot be finalized until the Respondent mother produces income disclosure and confirmation of the child support she receives from the children’s biological fathers who are Respondent Phillip Foster and Respondent Ken Altenburg. Mr. Karpuk is a step-parent to the children. b. Mr. Altenberg has not filed an Answer and is noted in default. c. On consent the settlement conference will continue on July 20, 2021 at 1:30 p.m. and no costs of today.

[9] Ms. Davidson attached Minutes of Settlement to her June 15, 2021 settlement conference brief in fulfilment of the requirement to include an Offer to Settle. Those Minutes of Settlement were dated May 25, 2021, were signed by Ms. Davidson, and stated “The Applicant offers to settle all outstanding issues in these proceedings on the following terms”. The Minutes of Settlement reflect an offer to settle all issues. There is no expiry date. It is these Minutes of Settlement that the Respondent seeks to enforce. I will refer to these Minutes of Settlement as the May 25, 2021 Offer.

[10] There were further conferences and to be spoken to appearances on July 20, 2021, November 18, 2021, January 21, 2022. The endorsements from each of these dates indicate that the parties were continuing to negotiate and were close to settling.

[11] A motion seeking financial disclosure brought by Mr. Karpuk was argued on November 10, 2021. The motion was dismissed.

[12] On March 7, 2022, the parties again used the time at a trial scheduling conference to continue to negotiate. Justice Lafrenière’s endorsement indicates that the parties had resolved the parenting issues, the outstanding issue was child support, and the parties were hopeful that issue would also settle.

[13] On March 8, 2022, Ms. Davidson sent an Offer to Settle dated March 8, 2022. This offer addresses parenting time and states that the issues of retroactive and prospective child support, and section 7 expenses remain outstanding. I will call this the March 8, 2022 Offer.

[14] On March 9, 2022, Mr. Karpuk signed the May 25, 2021 Offer. He seeks to enforce this agreement.

Position of the Parties

[15] Mr. Karpuk states that he accepted an offer that was open for acceptance for the following reasons:

a. The May 25, 2021 Offer was never formally withdrawn. A text sent by Ms. Davidson to Mr. Karpuk on January 6, 2022 further confirms that the offer remained open for acceptance on that date. b. Family Law Rule 18(10) states that a party may accept an offer even if the party has previously rejected the offer or made a counter-offer. c. Participating in negotiations after the offer was made does not implicitly withdraw an offer to settle. d. While an offer may be implicitly withdrawn by making a newer offer that less favourable to the recipient of the offer, the second offer made by Ms. Davidson is more favourable to Mr. Karpuk than the one he accepted. e. While an offer to settle that is attached to a settlement conference brief does not form an offer under Rule 18 of the Family Law Rules for the purposes of cost consequences, it can still be turned into a court order and enforced. f. Although the Court may exercise discretion to refuse to enforce a settlement, the Court should not do so in this situation. The settlement reached is in the interest of justice and in the children’s best interest.

[16] Ms. Davidson states that the May 25, 2021 Offer was not open for acceptance for the following reasons:

a. Ms. Davidson did not formally withdraw the May 25, 2021 Offer. This is because Ms. Davidson understood that they would not be accepted by the Court in any event, and therefore did not need to be withdrawn. (Recall Justice Lafreniere’s endorsement that the issue of child support could not be finalized before the mother produced disclosure) b. The May 25, 2021 Offer was intended to be used at the Conference of June 15, 2021 only. It was attached to the brief only due to the requirement of the Family Law Rules. c. The May 25, 2021 Offer was rejected by Mr. Karpuk. d. The parties continued to have negotiations after the June 15, 2021, settlement conference. e. The March 8, 2022 Offer was less favourable to Mr. Karpuk than the May 25, 2021 Offer, resulting in an implicit withdrawal of the May 25, 2021 offer.

Law and Analysis

[17] An offer to settle that is attached to a settlement conference brief is enforceable. Form 17C: Settlement Conference Brief – General indicates that an offer to settle must be attached to the settlement conference brief. It also states the following:

The other side can accept your offer. And if the other side does accept it, the accepted offer becomes a binding contract and can be turned into a court order that can be enforced against you.

[18] Also consider Owen-Lytle v. Lytle, 2015 ONSC 7673, wherein Justice Woodley found the following:

a. The Offer to Settle contained at paragraph 19 of the Respondent’s Settlement Conference Brief does not constitute an offer under Rule 18 of the Family Law Rules. b. Acceptance and enforcement of the Offer to Settled contained at paragraph 18 of the Respondent’s Settlement Brief is governed by the law of contract, analogy to the Family Law Rules, by reference to the Courts of Justice Act and the Rules of Civil Procedure. c. There can be no right without a remedy. The pre-printed settlement conference forms specifically provide that an accepted offer can be turned into a court order and enforced. As such it is clear that Rule 17 does not prohibit parties who seek to enforce settlement agreements arising from offers to settle contained in a settlement conference brief from presenting the offers and acceptance to the court seeking enforcement.

[19] However, upon finding that acceptance of an offer attached to a brief is enforceable, the next step of the analysis is whether the offer that was accepted was, in fact, open for acceptance. If it was not open for acceptance, then it cannot become a binding contract and enforceable.

[20] I do not accept Ms. Davidson’s submissions that the May 25, 2021 Offer was implicitly withdrawn by the fact that Mr. Karpuk initially rejected the offer, and because the parties continued negotiating in the months following. Participation in negotiations does not signal that a party wishes to change their position. For example, the party could be continuing to advocate, through ongoing negotiations, that their previous offer was favourable to the recipient and that the recipient should be reconsidering their initial rejection. See also Owen-Lytle v. Lytle at paragraph 25 which states that an offer is not terminated by a counter-offer or a rejection.

[21] I do not find that the text message from Ms. Davidson to Mr. Karpuk on January 6, 2022, is evidence that the offer remained open. In her text, Ms. Davidson writes “Read back on my previous offers, Dave. Visits the same. No child support. Split hockey 50/50. You STILL found a reason to say no. YOU are the reason this bs is still going on.” To me, this is Ms. Davidson just reminding Mr. Karpuk that she had made what she thought to be a good offer to him, and he refused to accept it. There is nothing to suggest that she is telling Mr. Karpuk that he was welcome to accept it at the time she sent the text.

[22] Mr. Karpuk submits that the May 25, 2021 Offer was open for acceptance because it was not formally withdrawn. The Family Law Rule 18(5) indicates that a party may withdraw an offer by serving a Notice of Withdrawal. The use of the permissive “may” signals that there are other avenues by which a party may withdraw an offer.

[23] Another method by which an offer may be withdrawn is set out in Zheng v. Jiang, 2012 ONSC 6756 and also outlined in Owen-Lytle v. Lytle at paragraph 24:

An offer to settle may be implicitly withdrawn by a subsequent offer in writing that is less favourable to the opposing party.

[24] The March 8, 2022 Offer is less favourable to Mr. Karpuk than the May 25, 2021 Offer. The March 8, 2022 Offer does include a slight increase of parenting time over the course of the year, but it is only partial settlement. Issues of child support remain outstanding in the March 8, 2022 Offer. Ms. Davidson waived child support in the May 25, 2021 Offer, and that offer also included a provision that there would be no retroactive child support payable by Ms. Davidson to Mr. Karpuk.

[25] Mr. Karpuk submits that it is unlikely he will be ordered to pay child support, Ms. Davidson will owe him a significant amount for retroactive child support, and therefore the waiver of child support does not result in the March 8, 2022 Offer being more favourable to him. I cannot agree. There is little evidence before the court regarding the sharing of time and expenses for the children in the past, and the parties’ evidence conflicts. Each party’s obligation to pay is currently undetermined, an issue for the trial of the matter, and not for the Court’s speculation. Accordingly, the March 8, 2022 Offer, by leaving the issue of child support unresolved, results in that offer being less favourable for Mr. Karpuk.

[26] Counsel for the Respondent also argued, and I agree, that the fact that Mr. Karpuk accepted the May 25, 2021 offer one day after receiving the March 8, 2022 offer is evidence that he, himself thought that the original offer was more favourable to him, otherwise, why would have he accepted it?

[27] Therefore, I conclude that Mr. Karpuk’s acceptance of the May 25, 2021 offer does not constitute a binding contract because the March 8, 2022 Offer implicitly withdrew the May 25, 2021 Offer.

[28] The Applicant’s motion is dismissed.

[29] The parties shall contact the trial coordinator to set a Trial Scheduling Conference.

[30] The parties are to have meaningful discussions to resolve the issue of Costs. If they are unable to agree, the Respondent shall serve and file written submissions, no more than three pages double spaced (with case law hyperlinked), plus a detailed Bill of Costs and copies of any Offers to Settle by February 27, 2023. Any responding submissions, no more than three pages, double spaced (with case law hyperlinked), plus a detailed Bill of Costs and copies of any Offers to Settle shall be served and filed by March 13, 2023. Reply submissions (no more than two pages, double spaced), if any, shall be served and filed by March 20, 2023. If a party does not meet these deadlines, there shall be no extensions.

Tweedie, J. Date: February 13, 2023