COURT FILE NO.: FC-16-1246
DATE: 2023/08/11
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Ewa Katarzyna Petruczynik, Applicant
AND
Andrew Thomas Legge, Respondent
BEFORE: Justice Engelking
COUNSEL: Julie Gravel, for the Applicant
Angela Livingston, for the Respondent
HEARD: April 25, 2023
Endorsement on Motion
[1] The Respondent brings a motion seeking an order declaring that the draft Minutes of Settlement were accepted by the Applicant and are enforceable, as well as an order in accordance with said Minutes and costs.
[2] The Applicant cross-moves for an order that certain paragraphs of the draft Minutes of Settlement which are agreed to be turned into a Final Order, and that those paragraphs not agreed to be identified as the final issues for a trial.
Background Facts
[3] The parties were married on June 17, 2010, and separated on August 15, 2015. A Divorce Order was granted on January 20, 2020. One child was born of the marriage, A.T.L., in 2013. A. resides in a shared parenting arrangement and has done so since March of 2020.
[4] After a TMC held in November of 2021, there was an exchange of various draft Minutes of Settlement between counsel for the parties. A version of the draft Minutes was sent by email to counsel for the Applicant, Ms. Gravelle, on November 12, 2021.
[5] On December 9, 2021, Ms. Gravelle requested a Word version of the draft, which was provided to her by counsel for the Respondent, Ms. Livingstone’s assistant on December 13, 2021.
[6] Between December 23, 2021, and March 2, 2022, Ms. Livingstone sent seven emails to Ms. Gravelle to determine the status of the Minutes. On March 2, 2022, Ms. Livingstone received revised draft of the Minutes of Settlement from Ms. Gravelle.
[7] Over the next two months, the Applicant and the Respondent negotiated the final details of the Minutes of Settlement. On May 10, 2022, Ms. Gravelle emailed Ms. Livingstone with the final draft of the Minutes of Settlement. In her email to Ms. Livingstone of this date, Ms. Gravelle stated:
“Enclosed are the edited proposed final minutes of settlement. My client is prepared to sign these, if they are agreeable to Mr. Legge, I shall send this out via an electronic signing program. Please let me know if any changes are required or if we can get this matter finalized.”
[8] On May 12, 2022, the Respondent agreed to sign the Minutes provided by Ms. Gravelle on May 10, 2022, and this was communicated to the Applicant via the following email from Ms. Livingstone to Ms. Gravelle:
“Everything is good to go on our end. Please forward the final Minutes for electronic signature.”
[9] Ms. Gravelle sent the Minutes to Ms. Livingstone for the Respondent’s electronic signature vial email dated May 13, 2023. Both Ms. Livingstone and the Respondent signed the Minutes, which were then to be automatically sent to the Applicant and Ms. Gravelle. The automated messaged attached to the email stated: “After you sign Minutes of Settlement Final May 10, 2022, the agreement will be sent electronically to [the Applicant’s email] and Julie Gravelle. Then, the parties will receive a final PDF copy by email.”
[10] On May 16, 2022, Ms. Livingstone emailed Ms. Gravelle requesting a fully executed copy of the Minutes of Settlement. Ms. Gravelle responded by email with:
“Angela, Still waiting for my client to sign. As soon as she does, everyone will receive a fully executed copy.”
[11] On May 20 and May 26, 2022, Ms. Livingstone emailed Ms. Gravelle to determine the status of the Minutes.
[12] On June 1, 2022, Ms. Livingstone wrote to Ms. Gravelle inquiring about the Minutes. Ms. Gravelle responded as follows:
“I believe Ms. Petruczynik intends on signing the agreement she was just waiting for Mr. Legge to confirm that the sleeping conditions in his home are satisfactory (it seems [A.] has been complaining about not being able to sleep at night due to excessive hear). She wrote to your client and was waiting to hear back.”
[13] Although A.’s sleeping arrangements did not constitute a term of the Minutes of Settlement, the Respondent confirmed through counsel that he had installed a fan in the room in question and requested a fully executed copy of the Minutes by the end of the day.
[14] On June 3 and 8, 2022, Ms. Livingstone sent emails to Ms. Gravelle regarding the status of the Minutes, to which she received no response.
[15] On June 15 and 16, 2022, Ms. Gravelle and Ms. Livingston attempted to schedule a telephone call, which did not ultimately take place.
[16] On June 16, 2022, the Applicant attended a feedback session with Dr. Elizabeth Melsom regarding the results of a learning/psychological assessment of A. Dr. Melsom issued a report dated June 23, 2022.
[17] On June 23, 2022, Ms. Gravelle advised Ms. Livingston that she was meeting with the Applicant “regarding some current issues to address”. No mention was made of the Minutes of Settlement.
[18] On June 28, 2022, in response to the Respondent’s notice through counsel that he would be bringing a motion. the Applicant, through counsel, proposed revised Minutes of Settlement, to which the Respondent did not agree.
[19] Nothing appears to have happened thereafter until December 3, 2022, when the Applicant requested extensive financial disclosure from the Respondent.
[20] Although she agrees to numerous paragraphs in the Minutes of Settlement signed by the Respondent (indeed, she seeks an order in relation to those paragraphs with which she agrees), the Applicant has not signed the Minutes of Settlement.
Positions of the Parties
[21] The Respondent’s position is that a binding agreement was reached between the parties as evinced by the May 10, 2022, Minutes of Settlement provided to him by Ms. Gravelle, confirmed to Ms. Gravelle by Ms. Livingston on May 12, 2022, and signed by him and his counsel, Ms. Livingstone on May 13, 2023. He seeks an order declaring same and incorporating the Minutes into a Final Order.
[22] The Applicant’s position is that no binding agreement was reached as she did not sign the Minutes. She states that based on their history of exchanging drafts and never reaching a final settlement, there could be no expectation by either the parties or their counsel that a binding agreement was reached until the Minutes were signed and dated by both parties. She further alleges that the Respondent has not been compliant with the Minutes, and, therefore, must not feel bound by them.
[23] The Applicant states that between the time the Minutes were sent out for the Respondent’s signature and returned to her for her signature, she received an assessment report regarding A., which “changed [her] understanding of [her] son’s particular needs highlighting the importance of decision making and specifically, tutoring, extra-curriculars, and counseling.”
[24] The Applicant also alleges that the Respondent was withholding financial support for activities recommended for A. as a means to pressure her into signing the Agreement.
[25] The Applicant consents to paragraphs 1, 2, 4, 5, 6, 7, 9, 11, 16, 17, 18, 19, 20, 21, 22, 23, 24, 26, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38 and 39 of the May 10, 2023, Minutes of Settlement being turned into a Final Order.
[26] She objects to paragraphs 3, 8, 10, 12, 13, 14, 15, 25, 27 and 40 being included in a Final Order. The Applicant requests that the issues dealt with in these paragraphs, being decision-making authority, costs of extra-curricular activities and child support, be identified issues for trial.
[27] The Respondent submits that there is nothing in the Assessment Report of Dr. Melsom that was unknown to the parties at the time they were negotiating the Minutes of Settlement. Nor does it contain any reference to the parents being unable to make joint decisions for A. Additionally, he points out that Dr. Melsom noted: “[A.]’s family provides him with an enriched environment at home and are very supportive of his interests and intellectual growth.”
Analysis
[28] The issue before the court is whether the parties reached a settlement between May 10 and 13, 2022.
[29] The Respondent relies on Fernicola v. Fernicola, 2022 ONSC 1041. As indicated in paragraph 55 of that case, the motion judge, referencing Halpern v. Halpern, 2014 ONSC 44246, indicates that the three following distinct lines of inquiry must be considered when determining whether parties have reached a settlement:
a. Was there a “meeting of the minds” or consensus ad idem, that was manifest to reasonable observers?
b. Was there a consensus on all of the essential terms of the agreement? and,
c. Did the parties make the agreement conditional upon any other term, or subject to execution or a formal contract?
[30] Justice Woodley stated at paragraph 56 of Fernicola:
[56] The test is objective and the parties will be found to have reached a meeting of the minds where it is clear to the objective reasonable bystander in light of all the material facts that the parties intended to contract and the essential terms of that contract can be determined with a reasonable degree of certainty. (See Cook v. Joyce, 2017 ONCA 49).
[31] The Applicant relies on the case of Nigris v. Nigris, 1999 14972 (ON SC), in which Justice Jenkins indicated at paragraph 28, referencing Tembath v. Tembath (January 12, 1993), Doc. Thunder Bay 3089-92 (Ont. Gen Div), that in a motion to enforce a settlement, the court should consider the following:
There must be an agreement in law, example was there an offer, an acceptance, consideration. Was there an intention to create a legal relationship. Was there duress or undue influence as those terms are understood in contract law? Was there fraud? If there is no enforceable agreement in law then the motion for judgment must be dismissed. No discretion is involved.
[32] When, however, discretion is involved, Justice Jenkins indicated at paragraph 29 that the court should consider the following factors:
Whether the settlement is unconscionable and improvident.
Has the person resiling been subject to an inequality of bargaining power as explained in such cases as Lloyd’s Bank Ltd. v. Bundy, [1974] 3 All E.R. 757 (Eng. C.A.) at 763 and 765.
Has a party failed to act in good faith.
Did counsel act without authority.
Are the terms of the agreement sufficiently clear that an attempt to enforce them will not spawn further litigation.
Does the agreement encompass most if not all of the issues in dispute.
Was the settlement negotiated with the parties physically in each others presence.
What period of time has elapsed between the agreement and notification that a party is resiling.
At what stage in the litigation did the negotiations take place.
Has the other party suffered a disadvantage as a result of the agreement being abrogated.
[33] The Applicant submits that the agreement is “improvident related to the child’s needs and his well-being”; that she was “harassed” by the Respondent and that he was not transparent about his corporate dealings; that the Minutes do not address decision making adequately, that they lack terms to follow through with the expert’s recommendations regarding the child’s needs, and that she will bear the brunt of the financial burden to meet those needs; that the Minutes contain no mechanism to enforce the expert’s recommendations or for financial contribution by the parties thereto; that notice was provided on June 28, 2022, that she was resiling; that negotiations have gone on throughout the litigation; and, that there is no disadvantage suffered by the Respondent.
[34] The Applicant acknowledges that no bad faith is alleged, that counsel had authority to act, that the Minutes deal with most issues in dispute, and that the parties were not physically present for the negotiations.
[35] Notwithstanding the history between these parties as it relates to negotiations and draft Minutes being passed between them, I do not find the Applicant’s position that no agreement was reached because she did not sign the Minutes of Settlement reasonable for several reasons. First, the Applicant’s counsel was acting upon her instructions and had full authority to do so. Second, it was the Applicant’s counsel who sent the “final” draft to the Respondent on May 10, 2023, not the other way around. Third, the Respondent clearly communicated his acceptance of the Applicant’s offer (final draft) on May 12, 2023, which acceptance was then evinced by his and his counsel’s execution of the Minutes on May 13, 2023. Finally, the agreement was not conditional on any other term.
[36] In my view, looking at the matter objectively, there was a meeting of the minds, or consensus ad idem, that was manifest to any reasonable observer as of May 12, 2022.
[37] Additionally, I am not swayed by the Applicant’s submission that the agreement is improvident to the child’s needs, or that the Assessment Report of Dr. Melsom supports that proposition. Indeed, the provisions of the report provided to the court evince that the child has been very positively parented by both parents. It does not speak to any issues or delays, moreover, relating to or caused by faulty decision-making by them. Nor does the report identify any issues with respect to the parents’ abilities to follow through with recommendations. I cannot find that the Applicant’s feedback session with Dr. Melsom on June 16, 2022, or the receipt of her report on June 23, 2022, justify her resiling from what was clearly an agreement on May 12, 2022.
Order
[38] For these reasons, the Respondent’s motion is granted. There shall be a final order as follows:
(a) The Minutes of Settlement dated May 10, 2022 and executed by the Respondent and his counsel on May 13, 2022 were accepted by the Applicant and are enforceable;
(b) The terms of the Minutes of Settlement dated May 10, 2022 and executed by the Respondent and his counsel on May 13, 2022, shall be incorporated into an Order of the Court.
Costs
[39] If the parties are unable to agree on costs for the motion by August 31, 2023, they may make written submissions of no more than three double-spaced, 12-point font pages, along with offers to settle and bills of costs, at 10-day intervals from that date and I will make an order.
Engelking J.
Date: August 11, 2023
COURT FILE NO.: FC-16-1246
DATE: 2023/08/11
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Ewa Katarzyna Petruczynik, Applicant
AND
Andrew Thomas Legge, Respondent
BEFORE: Justice Engelking
COUNSEL: Julie Gravel, for the Applicant
Angela Livingston, for the Respondent
ENDORSEMENT on motion
Engelking J.
Released: August 11, 2023