COURT FILE NO.: FS-22-31690-0000
DATE: 20240729
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Jami Clark, Applicant
AND:
Emerson Clark, Respondent
BEFORE: Shin Doi J.
COUNSEL: Chloe van Wirdum and Candice Santaguida, for the Applicant
Respondent – Self-Represented
HEARD: May 2, 2024
ENDORSEMENT
[1] The Applicant Mother brought a motion on May 2, 2024 to enforce a settlement agreement that she alleges was accepted by the Respondent Father on February 23, 2024. The Father opposed the motion and alleged that he was under duress. The Father stated that he had evidence, but he was not able to access it or obtain legal advice. The Father complained that the motion date was changed from May 1 to May 2, 2024. The Father stated that while he was prepared to argue the motion on May 1, 2024, he was unprepared to argue the motion on May 2, 2024, due to childcare issues and work commitments. I adjourned the motion to be heard in writing to give the Father time to locate his evidence and obtain legal advice.
[2] The parties subsequently filed written submissions on or about May 12, 2024. Upon review, I grant the Mother’s motion to enforce the settlement agreement. The settlement agreement is binding and enforceable. The Father clearly accepted the offer to settle and there was consideration supporting the settlement agreement. The Mother and the Father would be prejudiced if the settlement agreement is not enforced.
Facts
[3] The parties dated in high school and began co-habiting in October 2013. The parties were married on July 7, 2018 and separated on April 27, 2022. The parties have three children, born September 8, 2019, March 18, 2021 and October 18, 2022.
[4] The Mother alleges that she fled her marriage to escape the abuse by the Father. The Mother claims that the Father refused to pay any child or spousal support.
[5] The Office of the Children’s Lawyer completed a report dated October 16, 2023. Ms. Shari Burrows, clinician in the Office of the Children’s Lawyer, opines in the report, “Mr. Clark’s behaviour appears to be a pattern of coercive and controlling abusive behaviour, both during the relationship and after the separation.” She recommends, in part, that the Mother should have primary residence and decision-making responsibility for the children, the Father should have supervised parenting time with the children on one day each weekend for a few hours and one evening during the week at a supervised access centre and/or by a private professional supervisor.
[6] On October 27, 2023, the Mother served a without prejudice interim offer to settle child support. On November 16, 2023, the Father responded, “I suggest your client agrees to [my offer] immediately…” The Mother submits that the Father continued to provide offers tied to the release of funds. The Father confirms that he sent multiple offers (over 20).
[7] On February 22, 2024, the Father wrote asking for an update on when he would receive the Mother’s offer to settle.
[8] The Mother served a comprehensive offer to settle on the Father on February 23, 2024. The Father responded that he was not given the option to sign the offer and sent another email dated February 23, 2024 at 3:36 pm requesting the ability to sign the offer. The Mother’s lawyer replied “If you are accepting this Offer there is nothing to sign. You would respond that you accept it in full.” The Father responded by email dated February 23, 2024 at 3:41 pm “Accept in full”.
[9] The offer to settle covers parenting time and decision-making, equalization, child support and section 7 expenses, the Canada Child Tax Benefit, the matrimonial home, retroactive child support, retroactive spousal support and prospective spousal support. The offer to settle, clause 3 (i) states that in full and final satisfaction of any and all outstanding retroactive child support, spousal support and prospective spousal support, the net proceeds of sale from the matrimonial home shall be released as follows: $50,000.00 to the Father, and remaining monies, approximately $121,736.34 to the Mother.
[10] The Father forwarded the accepted offer to settle to the parties’ real estate lawyer by email on February 23, 2024 at 4:30 pm.
[11] The Mother subsequently requested the Father’s consent to a 14B motion to convert the offer to settle into a court order. The Father replied on February 29, 2024, “Do NOT consent”.
[12] The Father alleges that the Mother waited until he did not have a lawyer to send her offer to settle. He alleges that the Mother planted “fake stories” including false allegations of abuse and that he took luxury vacations with the funds received.
[13] The Father further alleges that the offer was “very shady and one sided”. He explains that the Mother is receiving $165K of his money and that he was left with $75K with debt owing to his family and matrimonial debt.
Analysis and Disposition
Issue: Is the settlement agreement binding and enforceable?
[14] The settlement agreement is binding and enforceable.
[15] Rule 18 of the Family Law Rules governs Offers to Settle. Rule 18(3) notes that a "party may serve an offer on any other party" while Rule 18(9) deals with what is required to validly accept an offer. Rule 18(9) notes that the only valid way of accepting an offer is by serving an acceptance on the party who made the offer, at any time before the offer is withdrawn or the court begins to give a decision that disposes of a claim dealt with in the offer.
[16] The test is objective as to whether a contract exists: “the offer, acceptance, consideration, and terms may be inferred from the parties’ conduct and from the surrounding circumstances.” (Owners, Strata Plan LMS 3905 v. Crystal Square Parking Corp., 2020 SCC 29, [2020] 3 S.C.R. 247).
[17] The Mother served an offer to settle on the Father pursuant to the Family Law Rules. The Father’s acceptance of the offer to settle from the Mother was valid and clear. The Father specifically asked how to sign back the offer. After the Father clarified the signature process by email, he stated clearly, “Accept in Full”.
[18] There was consideration supporting the settlement agreement. The Father on his own initiative sent the offer to settle to the parties’ real estate lawyer who released $50,000 to the Father pursuant to the settlement agreement. The Father argues that he did not spend any of the funds received. The law requires only an exchange of consideration to support a binding agreement.
[19] The fact that the Father sent the offer to settle to the parties’ real estate lawyer indicates conduct that there was a binding agreement between the parties. I do not find that there was any misunderstanding, error or other irregularity during the contract formation process. The doctrines of mistake, misrepresentation, non est factum or unconscionability do not apply (Owners, Strata Plan LMS 3905).
[20] There is also no evidence of duress on the Father. The case law has established that the threshold to prove that an agreement was made under duress is high. The Mother submits that in Ludmer v. Ludmer, 2013 ONSC 784 (varied in part 2014 ONCA 827), Justice Penny states at para 53:
Duress involves a coercion of the will or a situation in which one party has no realistic alternative but to submit to pressure. There can be no duress without evidence of an attempt by one party to dominate the will of the other at the time of the execution of the contract. To prove duress, the applicant must show [they were] compelled to enter into the [agreement] out of fear of actual or threatened harm of some kind. There must be something more than stress associated with a potential breakdown in familial relations. There must be credible evidence demonstrating that the complaining party was subject to intimidation or illegitimate pressure to sign the agreement.
The Father has not shown that he was coerced or compelled to enter into the settlement agreement out of fear of actual or threatened harm or subject to intimidation or illegitimate pressure to sign. The Mother argues that the Father was not under any financial or economic duress because he submitted that he did not use the funds received from the real estate lawyer. I agree.
[21] In my view, the parties will be prejudiced if the settlement agreement is not enforced (Milios v. Zagas 1998 CanLII 7119 (ONCA), as cited in Perrin v. Cara Operations Ltd, 2004 CanLII 8625 (ON SC) at para 17). The Mother would be prejudiced if the settlement agreement is not enforced because the settlement agreement covers retroactive support payable to the Mother. The Father will also be prejudiced if the settlement agreement is not enforced. The settlement agreement permits unsupervised parenting time rather than supervised parenting time for the Father. The parenting terms of the settlement agreement are more favourable to the Father than what was recommended by the Office of the Children’s Lawyer. Also, if the settlement agreement is not enforced, the parties would have to incur additional costs and time in a trial.
[22] In consideration of all the relevant factors disclosed by the evidence, the enforcement of the settlement agreement would not lead to clear injustice (Srebot v. Srebot Farms Ltd., 2013 ONCA 84).
[23] Accordingly, the Mother’s motion is granted, and the settlement agreement is binding and hereby enforced. The exit pre-trial date and trial dates in September 2024 are hereby vacated.
[24] If the parties are unable to agree on costs, the parties may make written submissions of up to 5 pages in length, double spaced, within 30 days.
Shin Doi, J.
Released: July 29, 2024