COURT FILE NO.: FS-20-19563 DATE: 20240202 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Dave Bisnath, Applicant and: Indera Ann Bisnath, Respondent

BEFORE: M. Kraft, J.

COUNSEL: Narvin Radhamohan, for the Applicant Marcy Segal, for the Respondent

HEARD: February 1, 2024

Endorsement

Nature of the Motion

1. The applicant, Dave Bisnath (“Dave”), brings a summary judgment motion to enforce Final Minutes of Settlement (“Final Minutes”) entered into by the parties at the conclusion of a mediation process, by turning the Final Minutes into a Court Order. The respondent, Indera Ann Bisnath (“Indera”) will not comply with the terms of the Final Minutes.
2. Indera did not file responding material to the motion. Indera did not appear at the motion despite being duly served with Dave’s materials and being provided with the zoom link for the hearing. Marcy Segal, who remains Indera’s solicitor of record, appeared and did not make submissions. Ms. Segal confirmed that Indera was served with Dave’s motion materials and was aware that Dave would be bringing a motion to enforce the terms of the Final Minutes by turning it into a Court Order. Indera has discharged Ms. Segal’s services but has not signed the Notice of Change in Representation. As a result, Ms. Segal will have to bring a motion to be removed as Solicitor of Record.
3. For the reasons that follow, I find that the Final Minutes are a valid and binding domestic contract between the parties, the terms of which shall be turned into a Court Order.

Issue to be Determined

4. The one issue for me to decide on this motion is whether the Final Minutes are binding on the parties.

Analysis

5. In determining whether an agreement has been reached, the court must find that the parties intended to create a legally binding contract and that there was an agreement on all essential terms of the settlement agreement: Olivieri v. Sherman, 2009 ONCA 772, [2009] O.J. No. 6235, at para. 41.
6. The general law of contracts is applicable in the family law context, such that settlement agreements are enforceable where there is a meeting of the meetings: Williams v. Williams, 2022 ONSC 3867, at para. 16; Lindsay v. Lindsay, 2021 ONSC 7085 (Div. Ct.), at paras. 32-42; and Gorman v. Gorman, 2021 ONSC 2577, at paras. 64-69.
7. Pursuant to s. 16 of the Family Law Rules, O. Reg. 114/99 (“FLRs”), the court can enforce agreements reached by parties in the final resolution of their disputes by way of summary judgment, since there is no genuine issue for trial. This matter turns on a review of the Final Minutes, and there are no credibility issues: Hryniak v. Mauldin, 2014 SCC 7.
8. The Final Minutes comply with the formalities required by s.55(1) of the Family Law Act, R.S.O. 1990, c.F.3, as they were made in writing, signed and witnessed.
9. Indera is not defending this motion. If she were, she could argue that s.56(4) of the Family Law Act provides the court with jurisdiction to set aside a domestic contract in the face of significant non-disclosure, where a party did not understand the nature of consequences of the domestic contract or in accordance with the law of contract, which includes grounds such as unconscionability, duress, uncertainty, undue influence, mistake and misrepresentation: Ward v. Ward, 2011 ONCA 178, at para. 21.
10. I find, in any event, that there are no grounds upon which one could argue the Final Minutes should be set aside because: a. there is no dispute in this matter that Final Minutes were signed by the parties. b. the terms of the Final Minutes are clear and unambiguous. c. financial disclosure was exchanged by the parties. d. the one unknown, namely, the value of the property owned by Indera was determined by way of an appraisal jointly retained by the parties. e. both parties had counsel assisting them in mediation. Indera was represented by senior counsel. f. a retired judge of the Ontario Superior Court of Justice acted as the parties’ mediator. g. the Final Minutes state that neither party was under duress and they signed the agreement voluntarily and not under any threats. h. the Final Minutes confirm that each party understood the terms of the agreement and that they each received independent legal advice.
11. By way of factual background, the parties were married on June 4, 1986. They have one child of their marriage, who is an independent adult, aged 33.
12. The parties do not agree on their date of separation. Dave argues that the date of separation was October 19, 2019 and Indera argues that it was February 1, 2012.
13. Dave issued this Application on October 21, 2020, seeking a divorce, equalization of net family property and, alternatively, division of property on the basis of a trust claim. Dave had difficulty serving Indera and his Application was not served on her until June 28, 2021.
14. Indera did not file her Answer/Claim until 11 months after the Application was issued, in which she sought spousal support and defended Dave’s claim for an equalization payment on the basis that the limitation period had passed.
15. The parties’ assets consisted of two properties. A jointly-held matrimonial home, which had been sold, and a property located at 26 Haymarket Road in Indera’s sole name. The net sale proceeds from the matrimonial home are being held in trust by the real estate lawyer. Indera resides at 26 Haymarket Road.
16. The parties’ first case conference was held on July 6, 2022. Indera did not file any materials. She arrived a half-hour late for the conference, as noted in the Endorsement of O’Brien, J., dated July 6, 2022. Pursuant to O’Brien, J.’s Endorsement, Indera received $25,000 from the net proceeds of sale from the matrimonial home to enable her to retain counsel since she had discharged her first counsel prior to the case conference.
17. On January 18, 2023, the parties participated in their first case conference, at which Indera was represented by Dilani Gunarajah. Brownstone, J. made procedural orders, including that the parties obtain a valuation of 26 Haymarket Road using 3 different valuation dates. The parties initially retained Jim Parthenis to conduct the appraisal reports. This process was frustrated because Indera told Mr. Parthenis that she had retained her own appraiser.
18. On May 11, 2023, Ms. Gunarajah brought a motion to be removed as counsel of record, which order was granted by Horkins, J.
19. Indera then retained Marcy Segal, who remains her counsel of record.
20. The parties obtained appraisal reports of 26 Haymarket Road as per Brownstone, J.’s order, which determined that as of February 1, 2012 (Indera’s V-date) the property was worth $460,500; as of October 19, 2019 (Dave’s V-date), the property was worth $1,135,000; and as of July 10, 2023, the property was worth $1,400,000.
21. The parties agreed to engage in a one-day mediation process and retained the retired Hon. Justice Kruzick as their mediator. The mediation was conducted in-person on December 7, 2023. The parties jointly shared the cost of the mediation and it was conducted in a neutral location. The parties exchanged disclosure and disclosure briefs at the end of November 2023. With direction from the Hon. Justice Kruzick, they also agreed to exchange mediation briefs on December 1, 2023 and combine their individual disclosure briefs into one joint brief.
22. The mediation lasted for the majority of the day on December 7, 2023. The parties reached a resolution of their outstanding issues. Final Minutes were prepared, reviewed, witnessed and signed by both parties and counsel.
23. The Final Minutes outline a settlement of the issues arising out of this proceeding and provided that Indera was to pay Dave an equalization payment of $290,000 on a final basis as follows: a. Within 5 days of signing the Final Minutes, Indera was to direct the real estate lawyer to release her share of the net proceeds to Dave, of $90,000; b. Indera was to waive any entitlement to the balance of the net proceeds of sale held in the real estate lawyer’s trust account, namely Dave’s half share; c. Indera was to pay Dave the remaining $200,000 within 90 days of signing the Minutes; d. If Indera was to require a further extension of 30 days, after the 90-day period expired, Dave was to agree to such an extension; e. Indera was to pay Dave the $200,000, within 120 days of singing the Final Minutes; f. If necessary, Dave was to act as guarantor if Indera required a mortgage to pay Dave the $200,000; g. Dave was to place the parties’ adult daughter, Sasha Bisnath, on title to his property, as 50% tenants in common, simultaneous to transfer of title in his name; h. Indera was to notify Dave no later than 60 days after signing the Final Minutes whether she qualifies for a mortgage, failing which, within 120 days, the property was to be listed for sale within 130 days of signing the Final Minutes.
24. There were also terms in the Final Minutes that provided as follows: a. The parties agreed to waive any spousal support claim he/she had on a final basis, as a result of settling equalization. Indera was to be estopped from seeking spousal support, retroactively and moving forward, regardless of her personal circumstances. The full Miglin release clauses were to be incorporated into the Separation Agreement; b. Neither party was to owe the other any post-separation adjustments on a final basis; c. All other claims contained in the parties’ application and answer and reply were to have been settled and Dave was to withdraw his claim in the Superior Court of Justice within 7 days of receipt of the $200,000 and Indera was to withdraw her claim within 7 days of receipt of Dave’s withdrawal; d. The parties were to agree to a joint and non-contested divorce and share the cost of same; and e. The parties were to incorporate the terms of the Final Minutes into a separation agreement within 30 days of singing these Minutes of Settlement.
25. In paragraph 7 of the Final Minutes, both parties acknowledged that they had received independent legal advice in full prior to signing the Final Minutes and that they signed the Final Minutes voluntarily, without any threats or duress.
26. The Final Minutes left Indera with roughly $1.2 million, made up of the equity in 26 Haymarket Road and a cash component of $200,000, which she received from the sale of the jointly -owned matrimonial home.
27. On December 9, 2023, Dave attended at his counsel’s office to sign the Authorization and Direction to the real estate counsel to release the funds. On December 13, 2023, Dave’s counsel sent an email to the real estate solicitor advising that the matter had settled and requested the release of funds. The Final Minutes were also sent to the real estate lawyer.
28. Indera refused to sign the Authorization and Direction to the real estate lawyer contrary to paragraph 1(a) of the Final Minutes. In breach of the Final Minutes, Indera refused to consent to the release of the funds to Dave.
29. On December 13, 2023, Marcy Segal, Indera’s counsel emailed Dave’s counsel and the mediator advising that Indera had discharged her services and that Indera “is seeking a review of the final award”. The Hon. Justice Kruzick responded and reiterated that the mediation had concluded with Final Minutes which had been signed, witnessed, and dated.
30. Dave’s counsel advised that the Final Minutes could be turned into a Court Order which led him to bring this motion.

Application of the Law to the Facts

31. The test is objective and parties will be found to have reached a meeting of the minds where it is clear to the objection reasonable bystander in light of all the material facts that the parties intended to contract and the essential terms of that contract can be determined with a reasonable degree of certainty: Cook v. Jouve, 2017 ONCA 49, per Woodley, J. in Fernicola v. Fernicola, 2022 ONSC 1041, at para. 56.

32. There is no dispute that an agreement was reached between the parties. This is not a case where the Court has to review correspondence between parties/counsel and/or offers to settle that were exchanged to objectively determine whether an agreement was reached. Rather, Final Minutes were signed by both parties.

33. Both counsel and the mediator in subsequence correspondence referred to the Minutes as “final”.

34. The parties entered into a mediation process after having been engaged in litigation for over 3 years. They attended two case conferences and exchanged financial disclosure. There was no rushed process.

35. The Final Minutes are clear that there are no outstanding issues. Paragraph 4 of the Final Minutes state that “all other claims contained in the parties’ application and answer and reply have been settled”.

36. Paragraph 6 of the Final Minutes states that the parties will incorporate these Minutes of Settlement into a Separation Agreement within 30 days of signing these Minutes. This is not a condition precedent to the enforcement of the Final Minutes and does not amount to an agreement to agree: Ward v. Ward, at paragraphs 53-55. The purpose of the separation agreement was to include the full Miglin spousal support release clauses. This is a typical term in a separation agreement. In Ward v. Ward, the Ontario Court of Appeal addressed this specific issue. In the Ward case, the parties had executed a Memorandum of Agreement, setting out the terms of the “deal”, which was subject to counsel working out terms of a separation agreement with satisfactory language. The court held that the proposed separation agreement that was to follow was not a condition precedent to the binding nature of the Memorandum of Understanding (“MOA”). In paragraphs 54-56, the court noted as follows:

    [54] As well, to be binding, it is not necessary that the original contract include all the ancillary terms that are already implicit in its content. As Rosenberg J.A. observed in Bogue, at para. 13:

    While there was no express discussion about a release, the settlement of the action implied an obligation to furnish releases: Fieguth v. Acklands Ltd. (1989), 59 D.L.R. (4th) 114 (B.C.C.A.). At the end of those negotiations, the parties had bound themselves to the settlement. It only remained for the lawyers to reduce the terms to a formal document. This was not simply an agreement to agree.

    [55] In my view, there are three reasons to conclude that the MOA was binding and the proposed separation agreement that [page414] was to follow was not a condition precedent to its binding nature. First, the plain language of the preamble says so. Second, the parties reached agreement on all essential terms and the subsequent points of contention were merely incidental to or were implicit in the final agreement already reached. Third, the parties' conduct at the time supports the conclusion that the parties had reached a final and binding settlement with the execution of the MOA.

37. I am persuaded that the Final Minutes themselves are binding on the parties. The proposed separation agreement referred to in paragraph 6 of the Final Minutes which were to follow was not a condition precent to the binding nature of the Final Minutes because the parties reached agreement on all essential terms. To be binding, it is not necessary that the original contract include all the ancillary terms that are already implicit in its content: Ward .v Ward, at para. 54.

38. Further, the terms of the Final Minutes were reasonable and fair. The settlement leaves Dave with cash of about $590,000 and frees him of a spousal support obligation, while Indera is left with cash of about $200,000 and the Haymarket property which has equity of about $1.2 million, using the appraiser’s current fair market value. From this equity, she is required under the Final Minutes to pay Dave the sum of $200,000. She will be left, therefore, with a total of $1.2 million as a full and final settlement of the parties’ property and spousal support issues. There would be significant prejudice to Dave if the Final Minutes were not enforced and Indera chose not to attend the motion, thereby, not defending this matter.

Costs

39. Dave seeks his full indemnity costs of this motion in the fixed sum of $6,456.25 pursuant to r.24(1) of the FLRs, since he was the successful party in the motion.

40. Subject to the provisions of an Act or the rules of court, costs are in the discretion of the court, Courts of Justice Act, R.S.O. 1990, c. C.43, s.131. By r. 24(10)(a) of the FLRs, the court is to decide on the costs of a step in the case promptly after dealing with the step, in a summary manner.

41. Modern costs rules are designed to foster four fundamental purposes: (1) to partially indemnify successful litigants; (2) to encourage settlement, (3) to discourage and sanction inappropriate behaviour by litigants; and (4) to ensure that cases are dealt with justly under Rule 2 (2) of the FLRs: Mattina v. Mattina, 2018 ONCA 867.

42. While a successful party in a family law case is presumptively entitled to costs, an award of costs is subject to the factors listed in r. 24(11), the directions set out under r. 24(4) (unreasonable conduct), r. 24(8) (bad faith), r. 18(14) (offers to settle), and the reasonableness of the costs sought by the successful party: M. (A.C.) v. M. (D.), 2003 ONCA 680, at paras. 40–43; Berta v. Berta, 2015 ONCA 918 at para. 94.

43. The touchstone considerations of costs awards are proportionality and reasonableness: Beaver v. Hill, 2013 ONCA 255, at para. 12. In Boucher v. Public Accountants Council (Ontario), 2004 ONCA 14579, at paras. 28-29, 37, the court held that costs must be fair and reasonable, and consistent with the reasonable expectations of the parties.

44. Dave argues that Indera’s conduct in this proceeding was unreasonable and, as such, costs should be ordered against her to discourage and sanction her inappropriate behavior. Specifically, Dave argues that Indera was unreasonable as follows: a. She evaded service of his application and filed her Answer/Claim 11 months after he issued this application; b. She did not appear at the first case conference until part-way through, her failure to file materials at the first case conference rendered the conference unproductive and the conference was subsequently adjourned; c. Having agreed at the second conference to retain an appraisal to value the Haymarket property at three dates, she frustrated the chosen appraiser by telling him she retained her own appraiser; d. After agreeing to a mediation process and signing the Final Minutes, she has breached the terms of the Minutes and indicated she wished to review the terms of the Minutes, without any basis; and e. Despite being served with these motion materials, she failed to file responding materials, or appear on the motion.

45. The applicant submits that the respondent’s conduct in this matter has increased his costs substantially. I agree.

46. I have reviewed the applicant’s costs outline. The time spent on this motion was reasonable in the circumstances and amounted to 11.5 hours, including the time to prepare the motion materials and prepare the Factum. Counsel for the applicant has been a member of the Ontario bar for 16 years and bills out a reasonable rate of $375 an hour.

47. The FLRs do not explicitly refer to costs on either a partial or substantial indemnity scale. Rule 24(8) refers to “costs on a full recovery basis,” where a party has acted in bad faith. I did not find bad faith in this case. The court has a range of costs awards open to it, from no In Sims-Howarth v. Bilcliffe, 2000 ONSC 22584, [2000] O.J. No. 330 (S.C.J.), Aston J. held that the two traditional scales of costs are no longer an appropriate way to quantify costs under the FLRs. He stated that, having determined that one party is liable to pay costs, the court must fix the amount at some figure between a nominal sum and full recovery, having regard to the factors set out in Rule 24, without any assumptions about categories of costs. This characterization of costs under the FLRs was approved of by the Court of Appeal in M. (A.C.) v. M. (D.), 2003 ONCA 680, [2003] O.J. No. 3707 (C.A.), at para. 42.

48. Costs must always be proportional to what is at stake in the case, and to the unsuccessful party’s reasonable expectation as to what costs he may face if he is unsuccessful. In appropriate circumstances, unreasonable behavior will result in a higher award of costs.

49. In arriving at a costs figure which is reasonable, I must balance many considerations, a. Indera’s breach of the Final Minutes within days of having signed the Minutes with the benefit of counsel; b. Indera’s refusal to consent to the real estate lawyer releasing the net proceeds of sale to Dave as per the terms of the Final Minutes; c. Indera’s claim that now she wishes to review the Final Minutes and taking no steps to identify on what basis she makes this claim; d. Indera’s refusal to file responding materials to Dave’s motion or to attend the motion, despite being duly served with the motion material and being provided with the Zoom link; e. Dave being entirely successful on this motion; and f. Dave is presumptively entitled to recovery for costs by virtue of his success and reasonable behaviour (as a litigant).

50. Dave’s request for full indemnity costs of $6,356.25 must be considered in the context of fairness, proportionality, affordability and reasonable expectations and allocation of resources. Dave’s counsel assumed his attendance at court would be 3 hours when it was 45 minutes, amounting to $281.25 of his hourly rate, and not $1,125 as he estimated.

51. For all of these reasons, Indera shall pay Dave’s costs of this motion, in the fixed sum of $5,500, inclusive of HST and disbursements within 10 days.

ORDER

52. This court makes the following order: a. The Final Minutes of Settlement signed by the applicant and respondent on December 7, 2023, shall be made into a Court Order and enforced. b. The respondent shall pay the applicant an equalization payment of $290,000 on a final basis as follows: i. The real estate lawyer, Basdim Nehal, currently holding the net proceeds of sale of the matrimonial home shall release the respondent’s half-share of the proceeds of $90,000 to the applicant; ii. The respondent shall pay the applicant the remaining $200,000 within 90 days of the Order; iii. If the respondent requires a further extension of 30 days beyond the 90-day period has expired, the applicant shall agree to such an extension; iv. By no later than 120 days after this Order, the respondent shall pay the applicant the $200,000; v. If the respondent requires a mortgage to pay the applicant $200,000, the applicant shall act as a guarantor; vi. The applicant shall not be responsible for any payments associated with the mortgage referred to in v. above and shall be indemnified on a final basis, including the mortgage, legal fees and/or any fees relating to the Haymarket property; vii. The applicant shall place Sasha Bisnath on title to his property, as 50% tenant in common simultaneous to the transfer of title in his name; viii. The respondent shall notify the applicant no later than 60 days after this Order that she qualifies for a mortgage. Should the respondent not qualify for a mortgage within 120 days, the Haymarket property shall be listed for sale within 130 days of this Order and ix. The parties each waive his/her entitlement to spousal support on a final basis on account of settling the equalization of net family property claims. The respondent shall be estopped from seeking spousal support, retroactively or prospectively. c. The Spousal support paragraph of the parties’ Final Minutes of Settlement is hereby binding. d. Neither party shall pay the other any post-separation adjustments on a final basis e. All other claims in this proceeding have been settled. The applicant shall withdraw his claims in this proceeding within seven days of the receipt of the $200,000 set out in this order. The respondent shall withdraw her claims in this proceeding within seven days of the receipt of the applicant’s withdrawal. f. The applicant shall proceed to obtain a divorce on an uncontested basis. The parties shall share the cost of the divorce. g. The respondent shall pay the applicant costs for this motion, fixed in the sum of $5,500, inclusive of HST and disbursements, payable within ten days.

M. Kraft, J. Date Released: February 2, 2024