COURT FILE NO.: FS-21-100158-00
Date: 2023 02 01
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Kathy S. Wright v. Radane Edward Wright
BEFORE: Fowler Byrne J.
COUNSEL: Afra Khattak, for the Applicant
Raymond E. Sharpe, for the Respondent
HEARD: November 14, 2022
E N D O R S E M E N T
[1] The Applicant Mother has brought a motion seeking an order enforcing the terms of an accepted offer to settle, and that the accepted offer become an order of this Court.
[2] The Respondent Father had brought a motion seeking an Order compelling a paternity test for the child R.W., who is currently 3 years old. He also sought financial disclosure from the Mother, that the Mother prepare an up-to-date financial statement, and that the matrimonial home be appraised. Finally, he sought leave to amend his Answer, and that the Mother have leave to serve and file a Reply. Since his motion was served, a paternity test was performed, confirming the Father’s paternity of the child at issue. In addition, the Father advises that all disclosure has been provided except for the Mother’s pension valuation. He still is seeking his costs.
[3] The Mother maintains that a final settlement was negotiated in good faith and that the correspondence exchanged between the parties shows they had an agreement. The Father maintains that he never provided his instructions to accept the offer made to him. In any event, the offer should not be enforced as it is unconscionable, he did not have full financial disclosure from the Mother, and it is not in the best interests of their child.
[4] As a result of the foregoing, the main issue to be determined is whether there was an accepted offer, and if so, whether I should make it an order of this Court.
I. Facts
A. Family History
[5] The parties were married on September 3, 2016, after cohabitating for almost two years. They separated on September 3, 2019. They have one child, R.W., as referred to above. The Father moved out of the matrimonial home in October 2020. The parties have a matrimonial home which is held by the parties as tenants in common – 99% owned by the Mother and 1% owned by the Father. This house was purchased a few months prior to separation for $415,000. The reasons that ownership was taken in this manner are disputed.
[6] Prior to the marriage, in 2006, the Father was hit by a car and sustained a serious head injury. The Mother alleges that his vision is especially limited at night. She states that he also suffers from short term memory loss and cannot drive. She claims he was also diagnosed with hyperactive disorder. As a result, he has no filter when he speaks and cannot remain inactive.
[7] The Father states that as a result of this accident, he had soft tissue damage to his hip, arm, spine and his skull was split open. He was also involved in another motor vehicle accident in 2014 when he was struck as a pedestrian, which aggravated his earlier injuries. Again in 2016 he was a passenger in his sister’s car when she was “t-boned”. He sustained whiplash injury and soft tissue injuries, which aggravated his earlier injuries. Finally, in 2021 he was again struck by a motor vehicle while a pedestrian and suffered a lower spine injury and a contusion to his left hip. He admits that his injuries have impacted his cognition, memory and vision. In order to maintain his self-confidence and to find a purpose in life, he trains and competes as a para-athlete for Canada.
[8] In support of the Father’s injuries, the Father has provided a letter from Dr. Kyriakos Mandadakis, his optometrist, dated March 2, 2022. Mr. Mandadakis confirmed that he had been treating the Father for 12 years for low vision, due to cortical damage from a motor vehicle accident as well as vision loss from flare-ups of his multiple sclerosis. He is considered legally blind. Dr. Mandadakis claims gainful employment would be extremely difficult for the Father and that he can expect further deterioration in his vision over time.
[9] The Father has also provided a letter from his family doctor, Dr. Bowen Chan, dated April 11, 2022. Dr. Chan confirms that the Father suffers from anxiety, bilateral visual acuity impairment and optic nerve atrophy, right shoulder dislocation and a prior history of a traumatic brain injury from a motor vehicle accident. He opines that these injuries have impacted his ability to obtain employment given his cognitive deficits and that his long-term prognosis is guarded. He does not believe the father will regain his prior cognitive and visual capabilities. He confirmed that the Father is or has been followed by a neuro-ophthalmologist, a physiatrist, a neurologist, an orthopedic specialist, as well as a urologist.
[10] The Mother maintains that she is R.W.’s primary care giver in every respect. Despite the Father not exercising any parenting time, he has not paid any child support – either monthly or of section 7 expenses. Unfortunately, the Father appears to not want to have a meaningful relationship with R.W. since separation. Whether this is a product of his cognitive impairments is not clear.
[11] The Mother was a credit analyst with Ford Credit and earns $57,000 annually. She recently changed jobs and now works with John Deere earning $76,000. The Father works as a consultant and as a track and field coach with Athletics Ontario. He also competes as a Paralympian in 200 m, 400 m and long distance track. He obtains “Quest for Gold” grants from the government and is also in receipt of ODSP, which he claims total $13,932 annually. He also earns interest income.
[12] Since separation, the Father has not paid any carrying costs of the matrimonial home, although he is a 1% owner. The Mother claims she pays close to $2,000 per month in matrimonial home expenses, without contribution from the Father.
[13] The Father’s draft net family property statement shows that he claims a 50% interest in the matrimonial home, and that the Mother owes him an equalization payment of $94,979, due to his assets as of the date of marriage. The Mother has not filed a net family property statement as of the date of the hearing of this motion, despite an earlier order that she do so.
B. Settlement Negotiations
[14] The Mother served a formal offer to settle dated January 21, 2022. The copy of this offer was attached to the Mother’s affidavit. It was not signed by either the Mother or her counsel. It dealt with all outstanding issues –parenting, child support, spousal support, equalization, post-separation adjustments, divorce and costs. It was not severable.
[15] On January 25, 2022, Mr. Boiani, counsel for the Father, emailed the Mother’s counsel, Mr. Khattak. He indicated, “I have had a chance to review your offer with Mr. Wright.” He then went on to indicate that the parenting provisions were acceptable and confirmed what the property settlement included. The only issue with which Mr. Boiani took exception was the child support provisions. Mr. Boiani indicated that his client was prepared to pay child support on a lower income, namely $14,028 per year, and not the higher sum proposed by the Mother.
[16] The Mother has indicated in her affidavit that she was content with the counter-proposal and instructed her lawyer to draft Minutes of Settlement. She indicated that this was negotiated on the day of the scheduled case conference, which was also January 25, 2022. No correspondence was exchanged that day between counsel confirming the Mother’s acceptance of the Father’s counter-proposal. Nonetheless, the Mother indicates that the evidence that her counter-proposal was accepted is set out in the endorsement sheet of the case conference of that day. In his endorsement, Justice Price indicated that a case conference was held and:
- Counsel have confirmed that the parties have settled all outstanding issues, subject to the signing of Minutes of Settlement.
[17] All parties and their counsel were present, by videoconference, for the case conference.
[18] The next day, Mr. Khattak prepared new Minutes of Settlement which included the new child support amount inserted. He asked that Mr. Boiani review them and track any changes. If they were agreeable as sent, he asked that he and the Father sign them and send them back for his client to sign.
[19] The next day, Mr. Boiani responded by email and indicated, “Normally I would arrange for electronic signing, but I think it is better in Mr. Wright’s case that I go over this with him in person.” He indicated that he contacted Mr. Wright to make an appointment.
[20] Approximately one hour later, Mr. Boiani emailed Mr. Khattak, and indicated that he had reviewed the Minutes of Settlement and proposed “minor changes”, which he tracked and forwarded. He indicated that he had spoken to Mr. Wright on the phone, and that they would be meeting in person within the next few days. When addressing who would proceed with the divorce, Mr. Boiani stated “This matter, once settled, can simply proceed for an uncontested order for divorce…”
[21] Approximately one-half hour after that, Mr. Khattak emailed back to Mr. Boiani, accepting the minor changes. He indicated that once the Father had signed the documents, he would have his client do the same. The final version of the Minutes of Settlement and draft order are found as Exhibit “I” to the Mother’s affidavit.
[22] Despite following up, Mr. Khattak heard nothing further until receiving a Notice of Change in Representation dated February 7, 2022, wherein the Father indicated he was representing himself.
[23] Mr. Khattak tried to reach the Father in order to finalize the apparent settlement, but heard nothing until the Father’s new counsel, Mr. Sharpe, contacted Mr. Khattak and indicated his client’s position that no settlement had actually been reached. There had only been settlement discussions between counsel and not an offer and acceptance. It was also at this time that Mr. Sharpe raised the issue of a paternity test, made a claim of spousal support for his client and sought additional financial disclosure.
[24] Questioning took place prior to the return of this motion. In questioning, the Father confirmed that Mr. Boiani was his counsel in this family law matter prior to retaining Mr. Sharpe. He also stated that when Mr. Khattak sent the January 21, 2022 Minutes of Settlement to his lawyer Mr. Boiani, that Mr. Boiani never reviewed them with him in person, “only through a phone call to come into his office.” He stated they only discussed him coming in because he did not understand the settlement documents.
[25] The Father also testified that he did not instruct Mr. Boiani to accept the January 21, 2022 offer because it omitted some issues that were important to him. He acknowledges that Mr. Boiani thought it was a good deal, but he did not agree with it. He does acknowledge that Mr. Boiani made a counter-proposal for a lower child support payment, but he never addressed the Father’s other concerns, such as his ongoing medical expenses and his declining eyesight. The Father confirmed that he told Mr. Boiani that he would pay that child support, but only if he got a DNA test confirming that that child was his.
[26] The Father also stated in his questioning that he did not instruct his counsel to advise Justice Price at the settlement conference that there was a settlement, as there were important issues outstanding for him, such as a DNA test, equalization, spousal support and medical support.
[27] The Father also indicated in questioning that he never attended at Mr. Boiani’s office to review the Minutes of Settlement because the other important issues were not addressed, such as equalization, medical care, his eyesight and parenting time.
C. Terms of Settlement
[28] This is not a situation where the parties disagree on the terms of settlement. They disagree as to whether the Father accepted its final form.
[29] Accordingly, if the settlement is enforced by this court, it would be, briefly, as follows:
a) Mother to have sole decision making authority for the child, after consultation with the Father; Mother to have authority to sign all documentation, but Father has the right to communicate with all teachers, doctors, etc.
b) Father is to have supervised access to child on a liberal and generous basis;
c) Father is to pay child support based on his annual income of $14,028, in the sum of $61 per month; and pay 21% of s. 7 expenses;
d) The Mother is to purchase the matrimonial home from the Father for the sum of $100,000;
e) This sum would be in settlement of any property issues, the equalization payment owed to the Father, lump sum spousal support owed to the Father, retroactive child support owed by the Father and any post-separation adjustments owed by the Father; and
f) Both parties will waive spousal support and sign a “full Miglin” spousal support release.
II. Analysis
[30] The Mother has the onus of proving that a full and final settlement was reached. If I accept that she has met her onus, the onus then switches to the Father to convince me that the settlement should not be enforced, as it is unconscionable, that there was a lack of full financial disclosure, or because it is not in the best interest of the child.
A. Was there a Settlement?
[31] Rule 18(3) of the Family Law Rules, O. Reg. 114/99 permits a party to serve an offer, even before a case has begun. Rule 18(9) states that the only way of accepting an offer is by serving an acceptance on the party who made the offer before it is withdrawn.
[32] Rule 18(13) states that if a party to an accepted offer does not carry out the terms of the offer, the other party may either bring a motion to turn the accepted offer into an order of the court or continue the case as if there was no settlement. The Mother has chosen the former option.
[33] Rule 18(4) defines an offer as a document that must be signed by the person making the offer and their lawyer if they have one. It is clear in this case that there has never been a signed offer to settle nor a signed acceptance. The Mother has argued that the terms of the settlement are well laid out in the exchange of unsigned offers to settle and communication as between counsel.
[34] This strict requirement of delivering a signed offer has been relaxed in some instances keeping in mind the primary objective under rule 2(2) of the Family Law Rules to deal with matters justly, which includes saving time and expense. This is particularly the case when parties acknowledge receipt of the various offers and communication that were exchanged between the parties: Browne v. Cerasa, 2018 ONSC 2242, at paras. 14-15. It should be noted though, that Browne was with respect to a costs award and not for the enforcement of an alleged accepted offer. When deciding costs, the court is required to review all offers exchanged, whether or not they comply with the strict requirements of rule 18.
[35] When deciding whether to enforce an alleged settlement though, the court must be certain that an offer, clearly laid out, was clearly accepted by the other party, in writing.
[36] On the facts before me, I do not find that a final settlement was reached. It is clear from the correspondence that the lawyers had agreed to the terms, but the Father’s lawyer was also very clear that he still needed to review the matter with his client in person, even though he had already dealt with it on the phone. Both parties recognize the Father’s cognitive and vision deficits. Mr. Boiani wrote in his email of January 27, 2022: “Normally I would arrange for electronic signing, but I think it is better in Mr. Wright’s case that I go over this with him in person.” This clearly contemplates further consultation and leaves open the possibility of further amendments when reviewing the Minutes of Settlement with the Father. Had the Father attended the next day to sign and upon further discussion with counsel, made a counter-proposal on any of the issues, would the Mother not be required to consider it? I find that she understood that nothing would be finalized until the Minutes of Settlement were signed and the draft order approved, hence her haste in preparing and delivering them for signature. It is not for the Mother to dictate how or when another party is to with consult counsel before signing a binding agreement.
B. Should the Agreement be Enforced?
[37] In the event I am wrong on the first issue, I would not enforce the agreement as reached.
[38] The discretion not to enforce an offer to settle is to be exercised on a case by case basis and only rarely and in the presence of compelling circumstances: Yonge Village Recreation Centre Limited v. York Condominium Corporation No. 201, 2007 CanLII 36647 (ON SCDC), 229 O.A.C. 144 (Div. Ct.), adopted by Hashemi-Sabet Estate v. Oak Ridges Pharmasave Inc., 2018 ONCA 839, at para. 39.
[39] This is one of those rare cases. The Father has a clear disability. There is medical evidence that his ability to work and support himself is questionable. There is also the question of his diagnosis of multiple sclerosis which is disclosed in his family doctor’s letter. It appears that he earns significantly less than the Mother. I acknowledge that it was a short relationship, but his disability may change the landscape. Also, at the time the settlement was allegedly reached, the Mother had not provided complete financial disclosure, which was to include a valuation of her pension. I understand she has now provided that disclosure, but at the time of the settlement, it had not been provided.
III. Conclusion
[40] I know this must be extremely frustrating for the Mother. She has been trying in good faith to bring this matter to a resolution for many years, with the Father pulling back at the last minute. This could very well be a factor in assessing the costs of this matter if it is found that the Father’s conduct was unreasonable.
[41] That being said, this court must be cautious when one of the litigants has a cognitive deficiency. The primary objective under r. 2(2) includes direction to ensure that the procedure is fair to all parties and that the case be dealt with in a way that is appropriate to its importance and complexity.
[42] Given that the Father suffers from cognitive impairment and short term memory loss, it may be that he requires extra time to consider any settlement proposed.
[43] Accordingly, based on the foregoing, I make the following orders:
a) The Mother’s motion is dismissed;
b) The Mother shall provide a valuation for her pension on or before April 1, 2023;
c) Each party is to serve an up to date sworn financial statement on or before April 1, 2023;
d) The Father is granted leave to amend his Answer, if not already done; the Mother is entitled to serve and file an amended pleading in response, within 30 days of being served with the Father’s amended pleadings;
e) This matter is adjourned to a settlement conference, fixed for June 28, 2023 at 2:15 p.m.;
f) The parties are encouraged to resolve the issue of costs as between them. If they are unable, both parties shall serve and file written costs submissions, limited to two pages, double space and single-sided, exclusive of offers to settle, plus a Costs Outline, on or before February 17, 2023; the other party may serve and file their responding submissions, with the same size restrictions, no later than March 3, 2023; and
g) The remainder of both motions is dismissed.
Fowler Byrne J.
DATE: February 1, 2023
COURT FILE NO.: FS-21-100158-00
Date: 2023 02 01
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Kathy S. Wright v. Radane Edward Wright
COUNSEL: Afra Khattak, for the Applicant
Raymond E. Sharpe, for the Respondent
ENDORSEMENT
Fowler Byrne J.
DATE: February 1, 2023