GUELPH COURT FILE NO.: FS-18-00000379-0000 DATE: 20240704 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
PAUL DOCHERTY Applicant – and – DEBRA CATHERWOOD Respondent
Counsel: On his own behalf G. Punnett, for the Respondent
HEARD: June 25, 2024
PETERSEN J
OVERVIEW
[1] The parties were married and are now divorced. They separated in or about March 2011. They have two sons, who are 17 and 16 years old.
[2] The Respondent, Ms. Catherwood, brings this motion for enforcement of a settlement agreement with respect to child support covering the period from January 1, 2013 to August 4, 2021. She claims that the terms of settlement require Mr. Docherty to pay her a lump sum of $150,000 within 9 months of February 2, 2022. She seeks an order for payment of that amount, plus pre-judgment interest calculated from November 2, 2022. She is effectively seeking partial summary judgment against Mr. Docherty. She did not word her Notice of Motion as such, but she was self-represented when she drafted her pleadings.
[3] Ms. Catherwood also seeks an order for Mr. Docherty to pay her $24,800 to compensate her for expenses that she incurred in connection with the renewal of a second mortgage. She claims that the renewal would not have been necessary if Mr. Docherty had complied with his obligations under the settlement agreement. Finally, Ms. Catherwood seeks an Order for the payments to be made from funds held in a Docherty Family Trust.
[4] Mr. Docherty opposes the motion. He argues that there was no settlement with respect to child support or, in the alternative, that the settlement ought not to be enforced. He also argues that there needs to be a trial to decide the issues raised by the motion.
SUMMARY JUDGMENT MOTIONS
[5] The court's authority to decide a family law case by way of a summary judgment motion is set out in Rule 16 of the Family Law Rules, O.Reg. 114/99. Rule 16(6) provides: "If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly."
[6] The moving party bears the legal burden of establishing that there is no genuine issue requiring a trial: Chao v. Chao, 2017 ONCA 701, at para. 16. However, once the moving party leads evidence to support that position, the evidentiary burden shifts to the responding party: Sanzone v. Schechter, 2016 ONCA 566, at para. 30, leave to appeal refused, .
[7] Rules 16(4) and (4.1) of the Family Law Rules stipulate:
(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.
(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.
[8] Rules 16(6.1) and (6.2) set out the court's fact-finding powers in a summary judgment motion:
(6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence.
(6.2) The court may, for the purposes of exercising any of the powers set out in subrule (6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.
[9] Rules 16(6), 16(4.1), 16(6.1) and 16(6.2) are virtually identical to Rules 20.04(2)(a), 20.02(2), 20.04(2.1) and 20.04(2.2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The jurisprudence interpreting the Rules of Civil Procedure is therefore applicable to the Family Law Rules regarding summary judgment motions: O'Dacre v. Cross, 2019 ONSC 2265, at para. 17; Chao, at paras. 27-28.
[10] The analytical framework for deciding a summary judgment motion is set out in Hryniak v. Mauldin, 2014 SCC 7, at para. 66. The analysis involves a two-step inquiry. The motion judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the fact-finding powers in Rule 16(6.1) or (6.2). There will be no genuine issue requiring a trial "if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure." If there appears to be a genuine issue requiring a trial, the motion judge should then determine if the need for a trial can be avoided by using the fact-finding powers set out in the Rules. "She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole."
[11] With or without the use of these fact-finding powers, summary judgment will only be appropriate if the motion record "gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute": Hryniak, at para. 50.
[12] To defeat a motion for summary judgment, the responding party must put forward some evidence to show that there is a genuine issue requiring a trial: Rule 16(4.1). Both parties have an obligation to "put their best foot forward": Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, at para. 32, aff'd 214 ONCA 878, leave to appeal refused, ; Ramdial v. Davis, 2016 ONCA 726, at para. 27; Chao, at para. 24. Given the onus placed on the moving party to provide a supporting affidavit or other evidence under Rule 16(4), "it is not just the responding party who has an obligation to 'lead trump or risk losing'": Ipex Inc. v. Lubrizol Advanced Materials Canada, 2015 ONSC 6580, at para. 28.
[13] The motion judge is entitled to assume that the record contains all the evidence that would be introduced by both parties at trial. A summary judgment motion cannot be defeated by references as to what may be adduced if the matter is allowed to proceed to trial: Sweda Farms, at para. 33; O'Dacre, at para. 22. Neither party can "succeed on summary judgment by saying that further or better evidence would be available in the future": Chao, at para. 24.
[14] Before I consider whether summary judgment should be awarded in this case, it will be helpful to summarize some of the relevant background facts.
HISTORY OF PROCEEDINGS
[15] The parties have been involved in litigation for many years. I will not outline all the prior steps and Orders in the proceedings, but the following summary of some of the history provides useful background.
[16] The parties had an initial trial in late 2012 and early 2013. On August 15, 2013, Justice Donohue issued a Judgment in which she ruled that Ms. Catherwood would have sole custody of the children, who were then 6 years old and 5 years old. She made detailed orders with respect to the parties' respective parenting time. She also ordered Mr. Docherty to pay Ms. Catherwood monthly spousal support and monthly child support effective January 1, 2013. The monthly amounts of support were based on Mr. Docherty's "estimated annual income" of $206,700. The child support was in the monthly amount of $2,658. Justice Donohue ordered an annual review of the amount of the child support and ordered extensive financial disclosure by both parties to inform the first review. Finally, Justice Donohue also ordered Ms. Catherwood to pay Mr. Docherty an equalization payment of $91,056.
[17] In September 2013, the parties executed Minutes of Settlement that departed from some of the terms of Justice Donohue's Judgment. They were both represented by counsel at the time. Mr. Docherty was represented by Sheila Holmes and Audrey Shecter. Ms. Catherwood was represented by Geoffrey Wells.
[18] The parties consented to a court order reflecting the terms of their settlement. Justice Bielby issued the consent Final Order on October 4, 2013. With respect to property issues, he ordered Ms. Catherwood to transfer her interest in the parties' cottage property to Mr. Docherty in exchange for a waiver of Mr. Docherty's entitlement to a $91,056 equalization payment. Justice Bielby also ordered that Ms. Catherwood "shall be responsible for all past, present and future debts owed by her and in her name, including any and all registered encumbrances on the cottage property."
[19] With respect to child support, Justice Bielby ordered Mr. Docherty to make monthly payments for the period from September 1, 2013 until August 1, 2019. The monthly amount payable up until December 1, 2015 was $2,658, based on Mr. Docherty's projected annual income of $207,700. The monthly amount payable thereafter, up until August 1, 2019, was $3,000, based on his projected annual income of $230,000. The Order specifies that these amounts are "fixed and non-variable" during these periods and "subject to change only in the event of a catastrophic change in [Mr. Docherty's] financial circumstances." The Order further states, "No request for disclosure of [Mr. Docherty's] income is to be made while the support payable is fixed and non-variable." Finally, the Order provides that any adjustments of child support owing for the period from January 1, 2013 to August 1, 2013 pursuant to Justice Donohue's Order shall be waived by Ms. Catherwood. Justice Bielby declared, "there are no arrears of child support owing.”
[20] In 2018, Mr. Docherty commenced a Motion to Change Justice Donohue's custody and access orders.
[21] On August 1, 2019, Justice Bielby's child support order terminated. The parties informally agreed that Mr. Docherty would begin paying an increased amount of $5,350 monthly for child support based on his annual income in excess of $420,000.
[22] Ms. Catherwood made a counterclaim to Mr. Docherty's Motion to Change, seeking an order for retroactive increase in child support back to January 1, 2013. She alleged that Mr. Docherty misled the court by intentionally misrepresenting his income to Justice Donohue during the trial in 2012 and 2013. She asserted that he was earning far in excess of $230,000 at that time. She claimed that he also misrepresented his income to her when she entered into the Minutes of Settlement that resulted in Justice Bielby's October 4, 2013 consent Order. She sought a retroactive variation of child support back to January 1, 2013, based on Mr. Docherty's alleged fraudulent misrepresentations.
[23] Justice Mossip bifurcated the child support issues in the counterclaim from the custody and access issues raised by the Motion to Change.
[24] At some point in 2020, Mr. Docherty became unemployed, and became involved in litigation with his former employer, Dexterra.
[25] On February 15, 2021, Justice Lemon made a Temporary Order for Mr. Docherty to pay child support in the amount of $2,817 monthly, based on an income of $211,666.
[26] Justice Lemon conducted a trial of the custody and access issues and dismissed Mr. Docherty's Motion to Change the orders made by Justice Donohue. His Judgment was released on March 22, 2021. The children's principal residence remained with Ms. Catherwood and Mr. Docherty's obligation to pay child support continued.
[27] The amount of child support, if any, paid by Mr. Docherty after November 2020 is unclear from the motion record. Ms. Catherwood claims that he was not paying any child support. She eventually enlisted the assistance of the Family Responsibility Office ("FRO") in November 2022, to collect the support owing. Mr. Docherty claims that he was paying Ms. Catherwood child support directly and was unaware that she had contacted the FRO to assist with enforcement. He alleges that she lied to the FRO. I make no findings about this issue because there is insufficient evidence in the motion record to determine the relevant facts. Moreover, it is unnecessary for me to make findings on this issue in order to decide this summary judgment motion.
[28] Ms. Catherwood continued to pursue her counterclaim for child support retroactive to January 1, 2013, and for an increase in the amount of ongoing child support payable. She argued that Mr. Docherty was intentionally unemployed and should be paying more than the monthly amount of child support ordered by Justice Lemon on an interim basis.
[29] At some point in 2023, the FRO registered a lien against Mr. Docherty's property based on $41,636.53 in arrears owing. Mr. Docherty brought an urgent motion to cancel the arrears in child support and to vary (reduce) Justice Lemon's Temporary Order with respect to the amount of child support he is obligated to pay. He also sought to have the FRO lien on his property lifted. Justice Andre dismissed his motion on April 30, 2024.
[30] Ms. Catherwood's counterclaim has yet to be tried. However, she asserts that the parties partially settled the counterclaim, and she has brought this motion to ask the Court to enforce the settlement. Specifically, she submits that the issue of retroactive child support owing for the period from January 1, 2013 to August 4, 2021 was resolved on February 2, 2022 with an agreement that Mr. Docherty would pay her a lump sum of $150,000.
THE ALLEGED SETTLEMENT
[31] The parties appeared more than once before Justice Lemay in 2021, with a view to trying to settle the child support issues raised by Ms. Catherwood's counterclaim. Justice Lemay directed the parties to make written offers to settle as part of the negotiation process.
[32] On August 4, 2021, Mr. Docherty delivered a written Offer to Settle all outstanding child support issues. The Offer was in two parts. Part I dealt with retroactive support. It stated the following:
The Applicant Paul Docherty ("Paul") shall pay the Respondent Debra Catherwood the sum of $150,000. The payment shall be made on the earlier of Paul's receipt of payment from his former employer Dexterra or 9 months from the date of acceptance of this Offer to Settle.
The payment set out in paragraph 1 above shall be in full and final satisfaction of all retroactive support adjustments and/or arrears of child support and special and extraordinary expenses owing from 2013 to date.
[33] Part II of Mr. Docherty's Offer dealt with ongoing child support payments, proportionate contributions to the children's future s.7 expenses, and annual income disclosure by the parties with commensurate adjustments to quantum of ongoing child support.
[34] The Offer specified that "Part I and Part II of this Offer to Settle may be accepted either together or independent of each other."
[35] The Offer stated that each party would bear their own costs if the Offer was accepted by Ms. Catherwood by September 13, 2021 at 12:00 PM.
[36] The Offer also contained the following term: "This Offer to Settle remains open for acceptance until one minute after the commencement of the trial in this matter or unless otherwise withdrawn in writing."
[37] The Offer was signed by both Mr. Docherty and his lawyer, Audrey Shecter.
[38] The parties attended a Settlement Conference before Justice Lemay on September 13, 2021. No part of Mr. Docherty's Offer was accepted that day. The parties did not resolve the child support issues on any other terms that day.
[39] Justice Lemay issued an Endorsement dated September 13, 2021 to "provide the parties with directions in order to prepare this matter for trial." His Endorsement included, among other things, a timetable for pre-trial disclosure to be completed by the parties. He did not order either party to produce specific documents, but rather ordered a process and timetable for mutual requests for documentation to be made by the parties and for the parties to respond to those requests either by producing the requested documents, or by swearing an affidavit outlining the efforts made to produce a document and how long it will likely take to do so, or an explanation as to the grounds for the party's refusal to produce a document.
[40] On February 2, 2022, Ms. Catherwood wrote to Mr. Docherty's lawyer via email accepting the terms of Part 1 of the Offer to Settle. She provided a copy of draft Minutes of Settlement, signed by her, setting out the precise terms of Part 1 of Mr. Docherty's Offer to Settle dated August 4, 2021.
[41] Mr. Docherty did not sign the Minutes of Settlement.
[42] On February 9, 2022, Mr. Docherty's lawyer (Audrey Shecter) sent an email to Ms. Catherwood stating: "This serves as Notice that Part II of the Offer to Settle dated August 4, 2021 is withdrawn in its entirety."
PARTIES' POSITIONS
[43] Mr. Docherty submits that he thought the Offer to Settle was "dead" after the Settlement Conference with Justice Lemay on September 13, 2021. There is no evidence to support a finding that any part of the Offer was withdrawn on September 13, 2021, or on any date thereafter, until Part II was withdrawn by his counsel in writing on February 9, 2022. The parties were preparing for trial, but the Offer remained open for acceptance. The only term of the Offer that expired on September 13, 2021, was the term that the parties would bear their own costs.
[44] Mr. Docherty argues that there is no enforceable Settlement Agreement because he never signed the Minutes of Settlement. In the alternative, he argues that the settlement should not be enforced because Ms. Catherwood failed to disclose relevant information to him when the settlement negotiations were taking place, and because the terms of settlement are unfair in the circumstances. He argues that there should be a trial of the issues and that the enforceability of the settlement should not be decided on this motion.
[45] Ms. Catherwood denies any material non-disclosure. She asserts that the settlement represented a reasonable compromise for both of them. She argues that there are no grounds to set it aside. She asks for partial summary judgment against Mr. Docherty and argues that there is no need to have a trial of this issue.
ISSUES AND LAW
Did the parties enter into an enforceable Separation Agreement?
[46] Section 54 of the Family Law Act, R.S.O. 1990, c.F.3 ("FLA") provides that spouses who separate may enter into a Separation Agreement in which they agree to their respective rights and obligations with respect to (among other things) support. Such a Separation Agreement constitutes a "domestic contract" within the meaning of s. 51 of the FLA.
[47] Subsection 55(1) of the FLA stipulates that a domestic contract is "unenforceable unless made in writing, signed by the parties and witnessed." The Offer to Settle made by Mr. Docherty on August 4, 2021 was in writing, was signed by Mr. Docherty and his signature was witnessed by his lawyer. The Minutes of Settlement prepared by Ms. Catherwood's lawyer, which contain the identical wording of Part I of the severable Offer, were in writing and were signed by Ms. Catherwood, but her signature was not witnessed. Mr. Docherty never signed the Minutes of Settlement.
[48] The purported settlement therefore does not satisfy the formal requirements of s. 55(1) of the FLA. However, the Court of Appeal for Ontario has ruled that the strict requirements of s. 55(1) may be relaxed where the court is satisfied that a domestic contract was in fact executed by the parties, where the terms are reasonable and where there was no oppression or unfairness in the circumstances surrounding the negotiation and execution of the contract": Geropoulos v. Geropoulos (1982), 35 O.R. (2d) 763 (C.A.); Gallacher v. Friesen, 2014 ONCA 399, at paras. 26-27; El Rassi-Wight v. Arnold, 2024 ONCA 2, at para. 17.
[49] In this case, there is no doubt that the parties executed a Separation Agreement. The terms of the agreement are in writing. Mr. Docherty signed the severable Offer to Settle and Ms. Catherwood signed the Minutes of Settlement containing Part I of the Offer. Their signatures were not affixed to the same document, both they both signed settlement documents containing identical terms. They did not sign the documents on the same date, but the Offer was never withdrawn by Mr. Docherty after he signed it on August 4, 2021. It remained open for acceptance and Part I was accepted by Ms. Catherwood on February 2, 2022.
[50] The circumstances surrounding the negotiation and execution of the settlement were not oppressive to Mr. Docherty. Both parties were represented by counsel. The Offer to Settle was made in the context of Settlement Conferences before Justice Lemay. The terms of the Offer were drafted by Mr. Docherty's lawyer and were signed by Mr. Docherty voluntarily, in the presence of his lawyer.
[51] For reasons that will be explained below, I have concluded that the terms of the settlement are reasonable, and that the negotiation process was fair. I therefore find that Part I of Mr. Docherty's severable Offer to Settle dated August 4, 2021, which was accepted by Ms. Catherwood on February 2, 2022, constitutes an enforceable domestic contract within the meaning of the FLA, notwithstanding that Mr. Docherty only signed the Offer and not the Minutes of Settlement, and despite the fact that Ms. Catherwood's signature on the Minutes of Settlement was not witnessed. A trial is not required in order for me to make these findings, because none of the relevant facts is in dispute.
[52] I nevertheless retain judicial discretion to set aside the Separation Agreement, pursuant to s. 56(4) of the FLA, if I accept Mr. Docherty's assertion that Ms. Catherwood engaged in material non-disclosure during the negotiation process, or that the terms of the settlement are unreasonable and result in unfairness to him: Dowdall v. Dowdall, 2021 ONCA 260. I have rejected these assertions for the reasons set out below.
Should the Separation Agreement be set aside?
[53] Subsection 56(4) of the FLA states:
A court may, on application, set aside a domestic contract or a provision in it,
(a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;
(b) if a party did not understand the nature or consequences of the domestic contract; or
(c) otherwise in accordance with the law of contract.
[54] The "law of contract" permits a court to set aside an agreement based on grounds that include unconscionability, duress, undue influence, mistake or misrepresentation: Ward v. Ward, 2011 ONCA 178, at para. 21.
[55] The onus is on Mr. Docherty, who is seeking to have the Separation Agreement set aside, to demonstrate that this case falls within one of the three circumstances set out in s. 56(4) of the FLA: LeVan v. LeVan, 2008 ONCA 388, at para. 51, leave to appeal to SCC ref'd, 3 S.C.R. viii. If he satisfies that onus, then I must consider whether it is appropriate in the circumstances to exercise my discretion in favour of setting the agreement aside.
[56] However, since this is a motion for summary judgment, Ms. Catherwood bears the onus of persuading the court there is no genuine issue requiring a trial.
[57] Mr. Docherty argues that the Settlement Agreement should be set aside because Ms. Catherwood did not comply with the terms of Justice Lemay's disclosure Order dated September 13, 2021. He did not specifically cite s. 56(4) of the FLA, but his argument is essentially one of alleged material non-disclosure.
[58] Apart from Mr. Docherty's bald allegation that Ms. Catherwood did not provide documentation requested by him (pursuant to the process ordered by Justice Lemay), there is no evidence of her non-compliance with the court order. Mr. Docherty has adduced no evidence and provided no particulars as to what specifically he requested that she did not disclose. It is therefore impossible for me to make any determination as to the extent of any alleged non-disclosure.
[59] On a motion for summary judgment, both parties must put their best foot forward. Mr. Docherty cannot defeat Ms. Catherwood's claim for summary judgment by stating that he will provide more or better evidence at trial.
[60] In any event, the settlement at issue deals only with retroactive child support owed by Mr. Docherty for the period from January 1, 2013 to the date of the Offer to Settle (August 4, 2021). The only disclosure that would be material to that issue is disclosure pertaining to Mr. Docherty's income for the years 2013-2021. Whatever Mr. Docherty may have asked Ms. Catherwood to disclose after the September 13, 2021 Settlement Conference, it would not have been material to the settlement that was reached. Non-disclosure must be material in order to invalidate a settlement agreement.
[61] The fact that Mr. Docherty made the Offer to Settle, with the benefit of counsel, five weeks before Justice Lemay made the disclosure order on September 13, 2021, further supports my inference that any documents that Mr. Docherty may have requested thereafter were not relevant to the issue of retroactive child support. A trial is therefore not required in order to decide this issue. It is not a basis upon which to exercise discretion to set aside the Separation Agreement.
[62] Mr. Docherty argues that he paid all the child support he was ordered to pay by Justice Bielby and then some. He asserts that there were no arrears owing in 2021. He claims that Ms. Catherwood misrepresented that fact to the FRO when she sought enforcement assistance. He submits that he has documented proof from the FRO that he was not in arrears of any payments, although he did not attach any FRO records to his affidavit. He attempted to adduce an FRO document as evidence during the motion hearing. Because he is a self-represented litigant, I agreed to examine the document. I observed that it did not include any information about support obligations accruing or support payments received between 2013 and 2021. It is therefore immaterial to the settlement at issue, which covers retroactive child support for that very period. I refused to admit the FRO document as evidence based on its irrelevance.
[63] Moreover, even if Ms. Catherwood made a misrepresentation to FRO (an issue upon which I make no ruling) in 2022, that would not amount to a material misrepresentation to Mr. Docherty during the settlement discussions that were occurring when he made the Offer to Settle in August 2021. Ms. Catherwood's representations to the FRO have no bearing on the issue of whether the Settlement Agreement should be set aside pursuant to s.56(4)(a) or 56(4)(c) of the FLA.
[64] Without specifically citing the relevant statutory provisions, Mr. Docherty also raises another argument that could potentially fall under s. 56(4)(b) or 56(4)(c) of the FLA. He submits that he was unaware that he had no arrears outstanding when he offered to settle the claimed arrears with a payment of $150,000. For the reasons that follow, I conclude that this is not a basis upon which I should exercise discretion to set aside the Separation Agreement.
[65] The portion of Ms. Catherwood's counterclaim that was settled was for retroactive variation of Justice Donohue's and Justice Bielby's Orders based on Mr. Docherty's alleged wrongful concealment of his true income. In her counterclaim, Ms. Catherwood was not arguing that Mr. Docherty was in "arrears" in the sense that he was failing to make court-ordered child support payments. Rather, she was arguing that she was entitled to a retroactive increase in the amount of support that he was obligated to pay because he deliberately misrepresented his income during the trial and during their settlement discussions thereafter
[66] There is no evidence that Mr. Docherty made the Offer to Settle on August 4, 2021 because he had been misled by Ms. Catherwood to believe incorrectly that he had arrears outstanding based on the existing court orders. The totality of the evidence supports an inference that Mr. Docherty made the Offer to Settle to avoid litigation on the issue of whether he misrepresented his income to Ms. Catherwood and to the court when the parties appeared before Justice Donohue and Justice Bielby back in 2012-2013. There is no evidence upon which I can reasonably conclude that he did not understand the nature and consequences of the Offer he was making.
[67] Mr. Docherty argues that Ms. Catherwood engaged in deception by concealing Justice Bielby's Order from Justice Lemay during their settlement negotiations in 2021. It is difficult to understand how she could have done so, since Mr. Docherty and his lawyer were present at the Settlement Conferences, and they surely would have informed Justice Lemay of the prior Order. In any event, Mr. Docherty and his lawyer were aware of Justice Bielby's Order when they drafted the terms of the Offer to Settle. Mr. Docherty therefore cannot reasonably claim that the terms of settlement were drafted in circumstances where there had been material non-disclosure (of Justice Bielby’s Order) to him.
[68] Mr. Docherty submits that the terms of settlement are grossly unreasonable and unfair to him. He argues that Justice Bielby's Order for "fixed and non-variable" amounts of child support precludes Ms. Catherwood from seeking any support beyond that which was contained in Justice Bielby's Order. Similarly, he argues that Justice Bielby's Order precludes a claim for child support retroactive to January 1, 2023.
[69] Rule 25(19)(a) of the Family Law Rules permits the court to change an Order that was obtained by fraud. Ms. Catherwood's counterclaim effectively alleges fraud. She accuses Mr. Docherty of intentionally concealing substantial income (approximately $160,000 annually) from Justice Donohue and from her and her lawyer during the settlement negotiations that resulted in the consent Order issued by Justice Bielby. Without commenting on the merits of Ms. Catherwood's allegations, it is clear that Justice Bielby's Order did not preclude the counterclaim being made.
[70] Consequently, when the parties were engaged in settlement discussions before Justice Lemay in the summer of 2021, Mr. Docherty was facing a risk of liability for substantial retroactive child support. Ms. Catherwood was seeking an order for payment of more than $150,000 from the court. In the circumstances, the agreement reached when Ms. Catherwood accepted Part I of the Offer on February 2, 2022 was not unreasonable. The Court should be loathe to interfere with the terms of that private agreement, particularly since both parties had independent legal advice.
[71] Mr. Docherty argues that it would be unfair to force him to pay $150,000 in retroactive child support in compliance with the August 4, 2021 Separation Agreement because Ms. Catherwood did not uphold her end of the bargain after they executed Minutes of Settlement in 2013. As set out above, the terms of the 2013 Minutes of Settlement were incorporated into a consent Order by Justice Bielby. That Order requires Mr. Docherty to waive his entitlement to a $91,056 equalization payment from Ms. Catherwood in exchange for Catherwood transferring her interest in their cottage property to him and paying all "debts owed by her and in her name, including any and all registered encumbrances on the cottage property."
[72] Mr. Docherty deposed that, on the date of Justice Bielby's Order, there was an encumbrance registered on title to the cottage property in the amount of $34,000, which Ms. Catherwood refused to pay. He adduced no evidence of the registration or of the circumstances surrounding the registration, so I am unable to determine whether it pertained to a debt owed by Ms. Catherwood. He deposed that he ended up paying a third party $22,000 to have the encumbrance removed. Ms. Catherwood adduced no evidence and made no submissions on the issue of the encumbrance.
[73] For the reasons that follow, I am not required to decide whether Ms. Catherwood violated the parties' 2013 Minutes of Settlement and Justice Bielby's October 4, 2013 Order by failing to pay for an encumbrance to be removed from title to the parties' cottage property. Assuming (without making a finding) that Justice Bielby's Order obligated her to pay the third party who registered the encumbrance, that could possibly entitle Mr. Docherty to compensation in the amount of $22,000 from her. However, he has taken no steps to enforce Justice Bielby's Order or to recover compensation from Ms. Catherwood in connection with this alleged breach. He cannot now reasonably argue that a Settlement Agreement reached more than seven years after Ms. Catherwood's alleged breach (on February 2, 2022) should be set aside because Ms. Catherwood did not uphold her end of the bargain and respect the consent Order back in September 2013. If she was in breach of Justice Bielby's Order, Mr. Docherty would have been fully aware of that fact when he made the Offer to Settle on August 4, 2021. If he now regrets his decision to make that Offer in those circumstances, that is not a basis upon which to set aside the resulting Separation Agreement: O'Dacre, at para. 40.
[74] Finally, I note that child support, while payable to a spouse, is the right of the child. It would not be appropriate for this court to set aside a reasonable and enforceable Settlement Agreement on child support because of a default by the recipient spouse in making a property-related payment under a different Settlement Agreement.
[75] For all the above reasons, I conclude that there are no grounds upon which to exercise my discretion to set aside the Separation Agreement pursuant to s.56(4) of the FLA.
[76] I am confident that the motion record provides me with the necessary evidence to arrive at this conclusion, without a trial. I am satisfied that summary judgment is a proportionate, expeditious, cost-effective and fair way to decide the issue of the enforceability of the disputed Separation Agreement: Hryniak, at para. 49.
[77] However, before granting the order requested by Ms. Catherwood, I must consider whether it is appropriate for the court to make an order for partial summary judgment, because the other issues raised by Ms. Catherwood's counterclaim have yet to be adjudicated.
[78] The Court of Appeal has repeatedly cautioned against granting motions for partial summary judgment where there is a risk of re-litigation of issues and inconsistent outcomes: Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, at paras. 33-35. The Court of Appeal has ruled that courts should only grant partial summary judgment "in the clearest of cases": Butera v. Chown, Cairns LLP, 2017 ONCA 783, at paras. 26-29; Athanassiades v. Rogers Communications Canada Inc., 2024 ONCA 497, at para. 17.
[79] In my view, this is a clear case in which partial summary judgment should be granted. The issue that was settled on February 2, 2022 pertains to retroactive child support for the period from January 1, 2013 to August 4, 2021 (the date of the Offer to Settle). The remaining issues to be tried pertain to prospective child support and apportionment of prospective s.7 expenses, after August 4, 2021. These are discrete issues. There is, therefore, no risk of duplication of proceedings or of inconsistent outcomes. The parties' children have been deprived of the $150,000 in child support for many years. It would not be in their interests or in the interests of justice to further delay payment by sending this matter to trial.
ENFORCEMENT OF TERMS OF SETTLEMENT
[80] Ms. Catherwood is entitled to Summary Judgment in accordance with the terms of the settlement. Ms. Docherty must therefore pay Ms. Catherwood $150,000 in retroactive child support for the period covering January 1, 2013 to August 4, 2021 inclusive.
[81] Ms. Catherwood seeks pre-judgment interest on the amount outstanding. The settlement obligated Mr. Docherty to pay her $150,000 on the earlier of his receipt of payment from his former employer Dexterra or 9 months from the date of acceptance of the Offer to Settle. Ms. Catherwood alleges that Mr. Docherty received a substantial payment from Dexterra, which Mr. Docherty denies. There is no evidence in the motion record upon which I can determine whether (or when) such a payment was received. Without proof of a payment from Dexterra, I conclude that Mr. Docherty was obligated to pay Ms. Catherwood within 9 months of the date she accepted Part I of his Offer to Settle, namely February 2, 2022. Pre-judgment interest shall therefore be calculated from November 2, 2022, at the rates prescribed by the Courts of Justice Act, R.S.O. 1990, c. C.43.
[82] Ms. Catherwood's request for an Order that the payment be made from the Docherty Family Trust is dismissed. She asserted that the Trust was created by her and Mr. Docherty during their marriage. However, she provided little information about the Trust and no evidence of its ongoing existence. There is no evidence in the motion record about the account in which the Trust is supposedly held, the amount of funds in the trust, the name(s) of the trustee(s), or the name(s) of the beneficiary(ies). In the circumstances, I cannot even consider her request for this Order to be made. If she wants to seek such an Order, she will be required to bring another motion, with proper evidence to support the relief she is seeking. My dismissal of her claim (regarding payment from the Trust) is without prejudice to her right to bring another motion for this same relief.
[83] Ms. Catherwood's claim for compensation in the amount of $24,800 is dismissed. The expenses she incurred are too remote to be claimed as damages for breach of contract (i.e. breach of the settlement agreement).
[84] Mr. Docherty asks for time to pay the $150,000 lump sum on the basis of financial hardship. He has been unemployed for 3.5 years. Ms. Catherwood submits that he is intentionally unemployed. Mr. Docherty tendered no evidence of his efforts to obtain gainful employment. Ms. Catherwood asserts that he has substantial assets from which the payment can be made, even if he has no employment income. Mr. Docherty denies this, but by his own evidence, in a sworn Financial Statement, he had a net worth of $366,778 as of March 14, 2024. He therefore has the assets to pay the sum that has been owing for 18 months. The payment of $150,000, plus prejudgment interest, must therefore be made within 30 days of the date of this judgment.
[85] Ms. Catherwood is entitled to her costs of the summary judgment motion. She seeks only $2,000, which is reasonable. Mr. Docherty is ordered to pay Ms. Catherwood $2,000 in costs within 30 days of today's date.
[86] The $150,000 payment, with pre-judgment interest, and the $2,000 costs award are all enforceable as child support by the FRO.
Petersen J
Released: July 4, 2024