COURT FILE NO.: FS-22-00032412
DATE: 2024-12-24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
IRENE LAM HO Applicant
– and –
HO YEUNG TANG Respondent
R. Avery Zeidman, for the Plaintiff
Eduardo Lam, for the Respondent
HEARD: December 12, 2024
JUSTICE M. SHARMA
[1] This is the Respondent father’s motion for summary judgment under r. 16 of the Family Law Rules.
[2] He seeks a declaration that Minutes of Settlement (“Minutes”) delivered by his former counsel to the Applicant’s former counsel on January 17, 2024 at 4:07 pm were accepted by the Applicant and are enforceable, inclusive of a change to para. 41 that parties adopted at a Settlement Conference. He seeks an Order that the Respondent execute the Minutes, or in the alternative, that an Order issue in accordance with the Minutes.
[3] The Respondent also sought relief regarding missed parenting time with his son. That relief was withdrawn 10 days after his Notice of Motion was served.
[4] The Applicant mother brings a cross-motion. She seeks an order for costs of the withdrawn parenting motion, and a dismissal of the Respondent’s summary judgment motion. If the Court finds the Minutes are enforceable, the Applicant asks that they be set aside due to lack of financial disclosure, material misrepresentations, absence of approval by the Applicant, and other reasons.
[5] I dismiss the Respondent’s motion for summary judgment. I also dismiss the Applicant’s motion for costs of withdrawing the Respondent’s parenting motion. I grant leave to the Respondent to bring a 1-hour parenting motion.
Brief Background
[6] The parties were married on March 23, 2019 and separated on June 16, 2022. They have one child, N, born in 2021 and who is 3 years old. This application was commenced in 2022.
[7] On April 26, 2023, parties entered into without prejudice, temporary Minutes of Settlement (“April Minutes”). The April Minutes dealt with parenting time, child support and spousal support, among other things. The April Minutes were signed by the parties, and by Applicant’s former counsel, Ms. Letitia Lee, and the Respondent’s former lawyer, Ms. Vivian Leung. Ms. Lee served a 14B motion to convert the April Minutes to a court Order, which was approved by Ms. Leung. It appears this Order was never issued, although the Respondent understood it was.
[8] The April Minutes stated that as of February 18, 2024, the Respondent was to have weekly overnights from Friday at 4:00 pm to Saturday at 6 pm, and that any changes to his parenting time would be agreed upon in advance. Between February and April 26, 2024, the Respondent had nine overnights with the child. The Respondent states the Applicant then unilaterally changed his parenting time.
[9] I have reviewed the Applicant’s email communication to the Respondent on April 26, April 27, and May 3, 2024. I am satisfied that the Applicant unilaterally changed the Respondent’s parenting time, in breach of their April Minutes. In the May 3, 2024 communication, the Respondent requested make-up parenting time from April 26, 2024. This has not been provided. It was the reason the Respondent requested this relief on this motion but later withdrew it.
January 17, 2024 Settlement Conference with Kraft J.
[10] On January 17, 2024, parties attended a settlement conference before Kraft J. Ms. Lee attended with the Applicant, and Ms. Leung attended with the Respondent. In her Endorsement, Kraft J. stated:
The parties had reached an agreement on all issues except on how the EP is to be paid, when the lifting of matrimonial home designation will take place, the real estate lawyer, and the issue of relocation. Views were expressed.
The parties were able to reach Minutes of Settlement on all issues. The parties have agreed on mobility boundaries…The parties will endeavour to have the Minutes of Settlement signed as soon as possible.
[11] Kraft J. ordered parties to send a draft order incorporating the terms of the Minutes to her assistant. She further ordered, “If necessary, the parties shall attend a TMC on June 3, 2024 at 12:00 p.m. The parties shall complete one jointly prepared TSEF.”
[12] Following the conference, between January 17 and January 19, 2024, Ms. Lee and Ms. Leung exchanged several emails with respect to the Minutes.
[13] Ms. Lee sent an email on January 17, 2024 at 2:08 pm which contains a subject line “FINAL FINAL MOS incorporating all that was agreed today at the conference”.
[14] This draft of the Minutes sent by Ms. Lee was in evidence. It reflects a comprehensive and final agreement on parenting issues, moving/relocation, insurance, child support, spousal support, and equalization.
[15] On the same day, at 4:07 pm and 4:13 pm, Ms. Leung for the Respondent replied. She attached changes to the Word version of the Minutes. Her covering email summarized changes to 11 paragraphs she had made. Ms. Leung’s version of the Minutes was not in evidence, even though it is this version the Respondent seeks to enforce.
[16] Subsequently, Ms. Lee did not raise any objections around the edits made by Ms. Leung, except for a term dealing with when the matrimonial home designation would be lifted.
[17] It appears parties differed on a single term in the final Minutes, namely a change made by Ms. Leung as to when the matrimonial home designation on the home would be lifted. Ms. Leung had proposed a term that was different than what parties agreed to at the settlement conference. Unable to reach a resolution, parties both indicated they would return to Justice Kraft to deal with this issue. Ms. Leung emailed Justice Kraft’s assistant requesting an appointment, but unfortunately, the parties did not hear back from the Court.
[18] On January 25, 2024, the Applicant changed lawyers. She is now represented by Mr. Zeidman. On that date, Mr. Zeidman wrote to Ms. Leung seeking to discuss the case “to come to an agreement about moving forward towards a resolution” and advising that he had discovered “serious errors” in the NFP statements each side prepared for their settlement meeting.
[19] Parties appeared before Kraft J. on June 3, 2024 where she ordered this summary judgment motion to proceed, along with the Applicant’s cross-motion. She did not grant leave for make-up parenting time.
Issues
[20] I address the following issues:
a. Is the Applicant entitled to costs because the Respondent sought relief of make-up parenting time but then withdrew that relief?
b. Is there a genuine issue requiring a trial regarding the enforceability of the Minutes discussed at the conference before Kraft J. on January 17, 2024?
c. If the Minutes are enforceable, should they be set aside, and if so, on what basis?
Issue 1: Is the Applicant entitled to costs because the Respondent sought relief of make-up parenting time on this motion but then withdrew that relief?
[21] I decline to grant costs requested by the Applicant. I spent no more than 10 minutes reading this portion of the Respondent’s affidavit. This relief was withdrawn 10 days after the motion material was served, and without a responding affidavit delivered. The Applicant has not demonstrated how costs of $500 could have been incurred by her or her counsel for this minor aspect of the relief.
[22] Furthermore, the documentary evidence makes clear that the Applicant unilaterally withheld the child from the Respondent. I appreciate that the Applicant did not respond to this allegation, but the email evidence sets out her lack of responsiveness and unilateral actions. It would be manifestly unfair and inconsistent with the primary objective of the Family Law Rules (“FLR”) to reward unilateral action of the Applicant, particularly following the execution of the April Minutes, with an award of costs.
Issue 2: Is there a genuine issue requiring a trial regarding the enforceability of the Minutes discussed at the conference before Kraft J. on January 17, 2024?
Legal Principles
[23] A party seeking summary judgment must present evidence showing that there is no genuine issue requiring a trial: r. 16(4), FLR. A responding party may not rest on mere allegations or denials but shall set out specific facts showing that there is a genuine issue for trial: r. 16(4.1) FLR.
[24] If there is no genuine issue requiring a trial, the court shall make a final order accordingly: r. 16(6) FLR. The court has expanded powers to weigh evidence, evaluate credibility of a deponent and draw any reasonable inference from the evidence on a summary judgment motion: r. 16(6.2) FLR.
[25] Two statutory or regulatory provisions address what is required to render an agreement between a separated couple enforceable.
[26] S. 55(1) of the Family Law Act states that a domestic contract, which is defined as including a separation agreement, is “unenforceable unless made in writing, signed by the parties and witnessed.”
[27] Rule 17(19) of the FLR states:
No agreement reached at a conference is effective until it is signed by the parties, witnessed and, in a case involving a special party or a child party, approved by the court.
[28] Under the common law, the court has enforced agreements reached orally or by way of exchanged correspondence even in the absence of a formal document being executed that memorializes the agreement. However, certain conditions must be met. The legal principles may be stated as follows:
a. “When parties agree on all the essential provisions to be incorporated in a formal document with the intention that their agreement shall thereupon become binding, they will have fulfilled all the requisites for the formation of a contract. The fact that a formal written document to the same effect is to be thereafter prepared and signed does not alter the binding validity of the original contract.” Bawitko Investments Ltd. v. Kernel Popcorn Ltd., 1991 2734 (ON CA) at p. 12 [emphasis added].
b. However, when the original contract is incomplete (e.g., essential provisions have not been settled or agreed upon; the contract is too general or uncertain to be valid; the understanding or intention of the parties is that their legal obligations are to be deferred until a formal contract has been approved and executed), the original or preliminary agreement cannot constitute an enforceable contract. Put differently, "a contract to make a contract" is not a contract at all. “The execution of the contemplated formal document is not intended only as a solemn record or memorial of an already complete and binding contract but is essential to the formation of the contract itself.” Bawitko at p. 13.
c. These principles have been applied in cases where family settlements were reached. See, e.g., Bogue v. Bogue, 1999 3284 (ON CA), Swift v. Swift, 2010 ONSC 6049, Ward v. Ward, 2011 ONCA 178.
d. In deciding whether there was a meeting of the minds, the test is whether a reasonable observer, standing in the position of either party or observing the circumstances surrounding the making of the agreement, would have believed or understood that the parties were making a final agreement on all essential issues sought to be settled: Iofcea v. Dinoiu, 2018 ONSC 6882 at para 28, and cases cited therein.
Analysis
[29] The Respondent’s position is that parties reached a binding agreement at the settlement conference before Kraft J. on January 17, 2024, subject to two incidental issues – how the equalization payment is to be paid and when the matrimonial home designation was to be lifted. He claims that the version of the Minutes sent by Ms. Leung on January 17, 2024 at 4:07 p.m. reflects their agreement “other than paragraph 41 thereof, which was to be amended by adopting the terms that Ms. Lee screen-shared earlier that day.”
[30] I find that there was an agreement on January 17, 2024 on the essential substantive terms of the parties agreement, but the parties’ agreement was subject to formal Minutes being executed. Therefore, I decline to grant summary judgment. I would also decline to grant summary judgment because of an evidentiary problem with the Applicant’s material.
Was an agreement reached on January 17, 2024?
[31] Justice Kraft’s endorsement demonstrates parties reached a full and final settlement on all substantive terms. Para. 2 states that the parties “had reached an agreement on all issues except on how the EP is to be paid, when the lifting of the matrimonial home designation will take place, the real estate lawyer, and the issue of relocation. Views were expressed” [emphasis added]. But the following paragraph states: “The parties were able to reach Minutes of Settlement on all issues.” She then described the resolution of the mobility issues. She then stated, “The parties will endeavour to have the Minutes of Settlement signed as soon as possible.”
[32] This suggests that coming into the conference, parties had reached an agreement on all but four issues, but then with Justice Kraft’s assistance, were able to resolve all substantive issues.
[33] This is consistent with the evidence. For example, how mobility was to be addressed was set out in para. 3 of Justice Kraft’s endorsement, which term was included in the version of the Minutes sent by Ms. Lee on January 17, 2024 at 2:08 p.m. As further evidence, Ms. Lee’s email stated: “Please find attached Final Minutes of Settlement for your review and approval. Please notify immediately if changes need to be made. Upon confirmation by all parties, our office will circulate one soft copy for all parties’ execution.” The re: line of this email stated “FINAL FINAL MOS incorporating all that was agreed today at the conference.” This suggests Ms. Lee also understood parties settled all terms of the Minutes.
[34] I have considered the email exchanges between counsel from January 17, 2024 to January 19, 2024. They suggest that any changes made by Ms. Leung to the version of the Minutes sent by Ms. Lee were to correct typographical errors or to make modest other changes that were not significant changes to the essential terms that parties had agreed upon. The Applicant has not led evidence that demonstrate any changes made by Ms. Leung were to the substantive terms of the agreement reached when parties were before Kraft J.
[35] The only remaining issue on which they disagreed, and which was the sole issue discussed in this email chain, was when the matrimonial home designation would be lifted. In Ms. Lee’s original version at para. 40, it would be lifted when the equalization payment is paid to the Applicant or upon a biding agreement to sell the home. From Ms. Leung’s emails, she proposed it be lifted 7 days prior to the sale of the home.
[36] On a balance of probabilities, I find that parties had settled the issue of the timing of the lifting of the matrimonial home designation when they were before Kraft J. and that para. 40 of Ms. Lee’s version of the Minutes reflects the parties’ agreement. I come to this conclusion for two reasons.
[37] First, on January 19, 2024, Ms. Lee responded to an email from Ms. Leung, stating:
In response to your draft MOS sent on January 17, 2024 4:07 pm following the conference, my client disagrees with removing the designation 7 day prior to the sale. It was neither mentioned nor agreed upon by both parties at the settlement conference. If you recall at the conference, I shared your ADOBE PDF REQUEST TO SIGN MOS on zoom. That clause was drafted by you and your client. We agreed to it before Justice Kraft. I will attach that version of the MOS for your reference. In the endorsement, the parties were able to reach minutes of settlement on all issues and your last minute change (unsurprisingly) that such designation has to be removed 7 days before the sale was a material change in the principles agreed upon. My client does not agree to including this clause. If your client insists, we shall seek direction from the court and will seek fully costs against your client, and will rely on all email correspondence we had from January 17, 2024 to present as evidence of vexatious positions taken by your client regarding this issue.
[38] Second, the Respondent produced the screen shot that was displayed during the settlement conference which contains language consistent with para. 40 of Ms. Lee’s version of the Minutes. The Applicant has not disputed that this was the term that was agreed upon at the settlement conference. How could she, given Ms. Lee’s statement in her January 19, 2024 email?
[39] I find that a reasonable observer standing in the position of either party and considering the circumstances surrounding the making of the agreement would conclude that the parties reached an agreement on all substantive terms of the Minutes on January 17, 2024.
[40] The Minutes were comprehensive. They address decision-making responsibility, regular and holiday parenting time, including a review of parenting time in 2026, the child’s documents and renewals, relocation (consistent with what is contained in the Endorsement of Kraft J.), insurance, child support and s. 7 expenses, support enforcement and spousal support, equalization, and the sale of the matrimonial home. These were all detailed terms.
[41] What prevented the Minutes from being executed was a disagreement, after the settlement conference, on one related issue - the timing of payment of the equalization payment and the lifting of the matrimonial home designation. It is not uncommon for separated spouses to wrestle with this issue which is usually connected with when and how the equalization payment will be paid. One party wants the designation lifted to ensure there are no problems on the closing of the sale of the matrimonial home and to permit proceeds from the sale to be used to pay an equalization payment. In contrast, the other party wants the matrimonial home designation to remain to ensure there is security for the equalization payment.
[42] I am not persuaded that this term was an essential substantive term. It did not deal with the quantum of equalization payment or entail a significant delay around its payment. It was a disagreement around process of maintaining security for the Applicant, not a substantive dispute on an essential term. The statement agreed upon by parties at the settlement conference and which appears at para. 40 in the Minutes sent by Ms. Lee states:
“Upon satisfaction of all Equalization payment or upon receiving a binding agreement to sell the matrimonial home before the Equalization Payment has been paid to the Applicant, the Applicant shall cause her real estate lawyer to prepare all documents (i.e. Acknowledgment and Direction to remove) for the removal/cancellation of the matrimonial home designation to give effect to the removal/cancellation and/or the sale of the matrimonial home. The Applicant shall bear the costs of removing the matrimonial home designation.”
[43] This term would have provided sufficient security for the Applicant. As stated by Ms. Leung in one email, if a deal to purchase the matrimonial home before closing did not close, it remained open to the Applicant to re-register the matrimonial home designation.
[44] In any event, whether it was an essential or incidental term, it is clear from the evidence that this term was agreed upon at the settlement conference, as confirmed by Ms. Lee’s email on January 19, 2024.
Was the execution of Minutes of Settlement an essential term of their agreement?
[45] I am persuaded that the signing of the Minutes was an essential procedural term of their agreement, necessary for the formation of their agreement. Without execution of the Minutes, there was no settlement. Justice Kraft’s endorsement suggests that parties “will endeavour to have the Minutes of Settlement signed as soon as possible” suggesting this was a necessary component of their deal.
[46] The Applicant asserts that she had always understood that there was no agreement reached until the Minutes were signed, and that she communicated this to her lawyer very clearly. However, the Court received no evidence from Ms. Lee. The Applicant was required to “put her best foot forward” in responding to this summary judgment motion. Regardless of what the Applicant may now assert as her intention, what governs is not the parties’ subjective intention, “because parties generally govern themselves in a self-serving fashion when the issue of enforceability arises, in order to bolster their respective positions as to whether a binding agreement has been formed or not.” Cole v. Cole, 2011 CarswellOnt 8459 (S.C.J. at para 41.
[47] Instead, the court must consider intention objectively. As stated by the Court of Appeal in Andrews v. Lundrigan, 2009 ONCA 160 at para. 8:
“…the intention of the parties is important in determining whether or not there was a final settlement that was merely to be recorded in a formal document. The term “intention” is not used in a subjective sense but rather to refer to whether “in the eyes of a hypothetical onlooker [the parties] appeared to have reached an agreement”: G.H.L. Fridman, The Law of Contract in Canada, 5th ed. (Toronto: Thomson Carswell, 2006), at p. 6. In making this determination, the court will look at the conduct of the parties at the time. As was said in Bawitko at p. 104, if in examining what transpired it is apparent that “execution of the contemplated formal document is not intended only as a solemn record or memorial of an already complete and binding contract but is essential to the formation of the contract itself”, there is no contract, or in this case, no settlement.”
[48] After parties were unable to settle the language of the Minutes, neither party through their lawyers asserted that a binding agreement was reached even though the Minutes were not executed. Instead, they sought to return to Kraft J. for assistance in finalizing the Minutes, suggesting that the completion and execution of the Minutes was a necessary and essential component of their entire deal.
[49] Furthermore, it was open to the Respondent to accept the version of the Minutes with para. 40 as drafted by Ms. Lee, if he truly believed that that was agreed upon. He did not do so. He opposed inclusion of this paragraph, which was the sole reason why the Minutes were not executed. This term was apparently important to the Applicant and a different version was obviously important to the Respondent. The Respondent only changed his position after the Applicant retained a new lawyer who identified purported errors with the net family property statements relied upon at the settlement conference.
[50] The Respondent did not lead evidence as to whether there was compliance or a demand for compliance with other terms of the Minutes since January 2024. For example, the Minutes created a parenting schedule over the holiday and long weekends in 2024, and there was no evidence of him having asserted a claim to those holidays from January 2024 until June 2024 when this motion was scheduled. It is unknown whether parties acted in compliance with the holiday schedule in the Minutes. It was the Respondent’s burden to establish compliance had there been.
[51] The Minutes would have also given the Respondent an additional two hours of regular parenting time each week. He explained that he did not follow the Minutes, and instead continued to follow the April Minutes because he was concerned that if he kept the child for an additional two hours, the Applicant would unilaterally withhold the child from him in the future as she did in the past. While I am sympathetic to this argument because it is supported by the evidence, it does not explain why his lawyer did not formally assert rights under the Minutes agreed to in January 2024. He could have written to advise he was following the April Minutes under protest. Instead, his evidence was that before he did so, he wanted to have executed Minutes that were converted to an Order so that he could rely on the Order for police enforcement purposes. This course of conduct, and the Respondent’s desire for an Order for police enforcement, further suggests executed Minutes were essential.
[52] There was no evidence of him offering to make the equalization payment required under the Minutes. Indeed, para 38(a) of the Minutes states that his first instalment of the equalization payment was due three months from “the execution of these Minutes of Settlement”. This is further evidence that parties intended execution of the Minutes to be a necessary and important aspect of their global settlement.
[53] There was evidence of the Respondent urging the Applicant to sign the Minutes in an email he sent to her on March 12, 2024. He advised he had been ready to sign off on them and hoped the Applicant was ready to do the same. This also demonstrates the Respondent understood the execution of the Minutes was necessary.
[54] In these circumstances, and considering all the facts of this case, I find that a reasonable observer would conclude that until Minutes were executed, there was no agreement reached.
Evidence of Minutes
[55] A further problem with the Respondent’s motion is that the Minutes sent by Ms. Leung on January 17, 2024 at 4:07 p.m. were not directly in evidence. The Respondent’s Notice of Motion said that those were the Minutes he sought to enforce.
[56] Those Minutes appear to be in the Respondent’s Reply affidavit at Exhibit D, which is an email from Ms. Leung, dated April 19, 2024, attaching an Offer to Settle of the same date, which Offer references and attaches the Minutes delivered by Ms. Leung on January 17, 2024 at 4:07 p.m.
[57] As the Respondent sought to enforce this version of the Minutes, it ought to have been an exhibit to his primary affidavit or part of an affidavit from Ms. Leung. Para 7(c) of the Respondent’s Reply Affidavit, which references Exhibit D contains no statement or statement on information and belief that the version of the Minutes attached to the Offer to Settle was in fact the version of the Minutes sent by Ms. Leung on January 17, 2024 at 4:07 pm. As such, there was no evidence that the version of the Minutes attached to the Offer was in fact the version sent by Ms. Leung on January 17, 2024 at 4:07 p.m. Rules 20.02(1) and 39.01(4) of the Rules of Civil Procedure permit an affidavit for use on a summary judgment motion to be made on information and belief, if the source of the information and the fact of the belief are specified in the affidavit.
Effect of rule 17(19) FLR
[58] I comment briefly on r. 17(19) FLR. This rule appears to create a mandatory requirement that agreements reached at conferences be signed and witnessed to be effective. However, in at least one decision, this court has given effect to a settlement reached by family litigants, even though Minutes of Settlement were never signed.
[59] In Swift v. Swift, 2010 ONSC 6049, the Court applied the common law test to determine whether parties reached an agreement on all outstanding issues at a settlement conference heard by Wildman J., which agreement was not recorded in signed Minutes of Settlement. After applying the common law test, DiTomaso J. concluded an agreement was reached and found it enforceable. The Court, however, did not expressly consider r. 17(19).
[60] At least one other case has suggested that r. 17(19) is mandatory, although its decision was not based solely on r. 17(19): McIntyre v. McIntyre, 2023 ONSC 4504 at para. 52. There are no other known reported cases applying r. 17(19).
[61] Because I have found that a reasonable observer in this case would conclude the execution of the Minutes was a necessary part of the parties’ agreement, it is not necessary for me to consider the applicability of r. 17(19) in this case.
[62] However, I note that Perell J. in Pastoor v. Pastoor, 2007 28331 (ON SC) has set out compelling policy reasons why this Court should enforce a separation agreement that is not in writing, signed or witnessed under s. 55(1) FLA - a provision analogous to r. 17(19) FLR. That case dealt with enforcement of a settlement reached prior to litigation, and not at a conference. In his analysis, he relies on rationale from Geropoulos v. Geropoulos (1982), 1982 2020 (ON CA) 35 O.R. (2d) 763 (C.A.).
[63] Geropoulos is authority that if litigation is commenced, then compliance with s. 55(1) FLA is not required and a settlement may be enforced in accordance with Scherer v. Paletta, 1966 286 (ON CA), [1996] 2 O.R. 524 (C.A.). The reasoning in Geropoulus is that domestic contracts reached outside of court require some evidence of an agreement actually having been reached – hence the formal requirements in s. 55(1), similar to a Statute of Frauds type provision. But the Court said the same logic does not apply to settlements reached in the course of court proceedings. As explained in Geropoulus at 768-769:
In my opinion, the section plainly is not aimed at or intended to apply to authorized settlement agreements like the present, made with legal advice during the pendency of court proceedings which, to be effective, require the intervention of the court. Such agreements derive their effect from an act of the court; their authenticity is assured by the court's supervision and control over them; and ample protection is afforded the parties to these agreements, wholly independent of the section. The court's jurisdiction to enforce settlements or refuse to do so, notwithstanding any agreement between solicitors or counsel, is well established; whether they should be enforced or not, in the final analysis, is a matter for the discretion of the court and, in litigation under the Family Law Reform Act, a matter that would be subject to the court's overriding jurisdiction with respect to domestic contracts. Scherer v. Paletta, supra; 3 Hals. 4th ed., paras. 1182-83, pp. 650-651 and ss. 18(4) and 55 of the Act.
[64] At p. 769, the Court continued:
No purpose is to be served in compelling agreements of this kind to comply with the formalities of s. 54(1) [now s. 55(1) of the Family Law Act] and, if not, permitting parties to withdraw at will from compromises properly entered into by their legal representatives before trial of their action or, if the appellant's position were to be accepted, compromises concluded even during the trial of the action. It may well be that, given the nature of matrimonial litigation, prudence would dictate that lawyers ensure that settlement agreements are signed by the parties personally witnessed. But I cannot construe the section as requiring that an otherwise valid compromise of an action must be rendered void and defeated on this ground alone, nor do I believe that the legislation could have contemplated or intended that result. Such a construction would be wholly inconsonant with the established policy of encouraging the settlement of disputed claims and recognizing and preserving the validity of settlements freely and properly entered into under advice. [emphasis added]
[65] Given the reasoning in Geropoulos, it is difficult to reconcile why r. 17(19) mandates that settlements, achieved during litigation at a conference, and often with the benefit of legal advice, must be signed and witnessed to be effective. The Court already retains jurisdiction over the case and the parties. It can exercise its discretion to enforce any settlement in the context of the litigation. If this is the rationale for not applying s. 55(1) FLA to settlements reaching in the midst of litigation, it begs the question why r. 17(19) FLR is needed.
[66] Practically, r. 17(19) is inefficient. It is a rare day when a judge has the time to oversee the parties’ drafting and execution of Minutes of Settlement following a negotiated settlement at a conference. Many judges will often seek to have parties return before them at a continued conference for the sole purpose of ensuring Minutes are executed. This places an unnecessary drain on limited judicial resources to achieve compliance with a family law rule. Judges should not “babysit” cases; their skills are needed to mediate or adjudicate a demanding caseload.
[67] One might also question whether r. 17(19) has achieved an unintended consequence of permitting a litigant with “buyer’s remorse” from reneging on a deal reached, simply by refusing to sign properly negotiated Minutes of Settlement. This was the allegation in this case. One may also imagine an unscrupulous family litigant engaging in drawn out negotiations with no intention of ever signing Minutes of Settlement for the sole purpose of draining the opposing parties’ resources. If a case has commenced, the Court in the proper exercise of its discretion can control these consequences, without the need for r. 17(19).
[68] In the end, judges must give effect to provisions enacted through legislation or regulation “regardless of any reservations they might have concerning its wisdom.” Ruth Sullivan, The Construction of Statutes, 7th ed (Toronto: LexisNexis 2022), ch. 17 [1]. This, however, does not arrest a judge from commenting on the wisdom.
Issue 3: If the Minutes are enforceable, is there a genuine issue for trial that they be set aside, and if so, on what basis?
[69] Given my previous finding, it is not necessary for me to address this issue.
Conclusion
[70] For these reasons, there is a genuine issue requiring a trial. The parties did not execute Minutes of Settlement, which a reasonable observer would conclude is a necessary and essential part of the parties’ settlement. As such, the Respondent’s motion for summary judgment based on the purported settlement is dismissed.
[71] I am concerned about the limited parenting time that has been afforded the Respondent. There was no evidence it has been expanded as was contemplated in the parties’ draft Minutes from January 2024. If the Minutes were enforceable, the Applicant sought to have them set aside because of calculation errors – not because of parenting concerns. This begs the question why further parenting time has not been given to the Respondent, in the child’s best interests. The child is now a year older and will turn four in February 2025. There was evidence of the Applicant in the past unilaterally reducing the Respondent’s parenting time. None of this is child focussed. As the Minutes are not enforceable, the Respondent is not bound by the parenting terms set out therein. Accordingly, I grant leave to the Respondent to bring a 1-hour motion for expanded parenting time. The Respondent should not have to wait five or six months to the next conference to obtain leave for a motion date.
[72] I dismiss the Applicant’s cross-motion for costs relating to time spent reviewing the withdrawn make-up parenting time relief.
[73] As parties have already had a settlement conference, I direct parties to forthwith contact the Family Trial Office to request a trial management conference. It shall be heard without delay. Parties shall jointly prepare a Trial Scheduling Endorsement Form in advance of the trial management conference.
Costs
[74] I strongly urge parties to settle costs. If no settlement is achieved, parties shall submit a maximum of 3 pages of written submissions (double-spaced), attaching a Bill of Costs and any Offers to Settle that were made. The Applicant shall deliver her cost submissions by January 17, 2025, and responding submissions from the Respondent shall be delivered by January 31, 2025.
Justice M. Sharma
Released: December 24, 2024
Amended: January 3, 2025. Paras 55 to 57 were replaced to respond to an issue raised by the Respondent in correspondence dated January 2, 2025, following release of Judgment.
COURT FILE NO.: FS-22-00032412
DATE: 20241224
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
IRENE LAM HO Applicant
– and –
HO YEUNG TANG Respondent
REASONS FOR JUDGMENT
M. Sharma, J.
Released: December 23, 2024