CITATION: Jeffrey v. McNab, 2025 ONSC 3109
SUPERIOR COURT OF JUSTICE, FAMILY COURT- ONTARIO
RE: Lisa Ann Jeffrey, Applicant
AND:
Casey McNab, Respondent
BEFORE: The Honourable Mr. Justice Robert B. Reid
COUNSEL: J. Singer, Counsel, for the Applicant
A. Turner and K. Morris, Counsel, for the Respondent
HEARD: May 20, 2025
Corrected Decision: Corrections were made on page 1 (date heard) and paras.
13, 14, 16, 17, 18, 19 as underlined on August 20, 2025. No other changes to content.
decision on motionS
Introduction:
1In advance of the trial in this application, which was set for the sittings at St. Catharines that commenced May 12, 2025, the applicant (“Ms. Jeffrey”) moved for an order that the matter proceed as if the respondent’s acceptance of the applicant’s offer to settle dated April 7, 2025, had not occurred. She requested that funds paid to her, purportedly pursuant to the accepted offer, be paid into court.
2The respondent (“Mr. McNab”) made a cross-motion for summary judgment to enforce the terms of settlement as per the accepted offer to settle, and for an order that any required rescheduling of the matter be marked peremptory to the applicant. In the alternative, if the offer was not found to be binding, he asked for a return of the funds.
3Both parties sought costs.
Background:
4The parties cohabited for 14 years through to their separation in June 2015. In her application dated April 15, 2016, Ms. Jeffrey sought an equal share of family assets accumulated during their cohabitation. She also claimed support.
5The matter was scheduled for a 14-day trial.
6On April 7, 2025, Ms. Jeffrey made a severable offer to settle as to the two outstanding issues. On April 10, 2025, Mr. McNab accepted the offer as to the joint family venture/unjust enrichment issue. As a result, a second trial scheduling conference was convened on May 5, 2025, pursuant to which the trial time was reduced to eight days, to deal with support as the sole remaining issue.
7One term of the accepted offer to settle was that Mr. McNab pay Ms. Jeffrey the sum of $1,220,000 within 30 days. Through counsel, the parties debated the meaning of that term, and eventually agreed that the payment would be made by Mr. McNab on or before May 10, 2025. Other additional terms were proposed by Mr. McNab and rejected.
8A draft order including the May 10 payment date and a provision for post-judgment interest was sent by counsel for Ms. Jeffrey on April 23, 2025. It was approved by counsel for Mr. McNab. The interest provision did not appear in the offer to settle and had not previously been discussed.
9Partial payments were made on and before May 10, leaving a balance owing of $456,000.
10Ms. Jeffrey sent a notice to counsel for Mr. McNab on May 11 advising that she was electing to re-open the case.
11The balance of the required payment pursuant to the accepted offer was made on May 12, 2025.
Position of the parties:
12Ms. Jeffrey relies on subrule 18(13)(b) of the Family Law Rules, O. Reg. 114/99 (“the Rules”) which provides, as to offers to settle as follows: “If a party to an accepted offer to settle does not carry out the terms of the offer, the other party may … (b) continue the case as if the offer had never been made.”
13She asserts that time was of the essence in the accepted offer and that the May 10 payment date was critical. The provision for post-judgment interest was irrelevant: it was not mentioned in the offer to settle, or in its acceptance by Mr. McNab. A previous draft order without that provision had been approved by counsel for Mr. McNab on April 13.
14Mr. McNab submits that the payment date, while of importance to the applicant as appears from the negotiations and correspondence about the payment date following the acceptance of the offer, was nevertheless not critical. There were no underlying facts which made the due date (a Saturday) of special importance. The final payment, made a mere two days after the agreed date, may have generated the basis for an interest claim but was not a failure to carry out an essential term of the offer.
Analysis:
15Both motions are based on Mr. McNab’s compliance, or lack of compliance with his acceptance of Ms. Jeffrey’s offer to settle.
16The single issue is whether the failure to comply with the payment date of “on or before May 10” constitutes a failure on the part of Mr. McNab to carry out the term of the offer made April 7 and accepted April 10, thereby permitting Ms. Jeffrey to resile pursuant to the terms of subrule 18(13)(b) of the Rules.
17More specifically, the question is whether time was of the essence contractually as to the May 10 payment date? Did Mr. McNab’s delay in payment by two days open the door so that Ms. Jeffrey could walk away from her offer?
18The accepted offer to settle provided that payment was to be made within 30 days. Counsel debated whether the payment was to be within 30 days of the offer or of the acceptance. The May 10 date was the negotiated outcome.
19Correspondence from counsel for Ms. Jeffrey after the May 10 date was established made it clear that there was an expectation that the date be honoured. On May 7, counsel for Ms. Jeffrey advised that: “The due date for payment of the $1,220,000 is Saturday, May 10th. I assume the funds will be wired into my trust account.” On Friday, May 9, Mr. McNab’s counsel sent an email to the effect that: “Our client is waiting on the $320,000 mortgage advance re: Van Horne property. This may not arrive until Monday, but Mr. McNab is making every effort to obtain the funds as soon as possible.” On Sunday, May 11 counsel for Ms. Jeffrey wrote: “the applicant elects to continue the case (property) as if the offer had never been accepted.” Both counsel advised the trial coordinator of their respective positions on May 12, the opening day of the trial sittings.
20There is no dispute that the accepted offer constituted a binding contract. There was a meeting of the minds, and there were no essential terms missing.
21Ms. Jeffrey relies on the principles of repudiation to justify her actions as set out by the Ontario Court of Appeal in Ching v. Pier 27 Toronto Inc., 2021 ONCA 551, 460 DLR (4th) 678, at para. 26 (quoting its earlier decision in Ali v. O-Two Medical Technologies Inc., 2013 ONCA 733, 118 O.R. (3d) 321):
Once the counterparty shows its intention not to be bound by the contract, the innocent party has a choice. The innocent party may accept the breach and elect to sue immediately for damages – in which case, the innocent party must “clearly and unequivocally” accept the repudiation to terminate the contract: Brown, at para. 45. Alternatively, the innocent party may choose to treat the contract as subsisting, “continue to press for performance and bring the action only when the promised performance fails to materialize”; by choosing this option, however, the innocent party is also bound to accept performance if the repudiating party decides to carry out its obligations: S.M. Waddams, The Law of Contracts, 6th ed. (Toronto: Canada Law Book 2010), at para. 621.
22The principles of repudiation are not challenged by Mr. McNab. He simply asserts that he did not show an intention not to be bound by the agreement by making the final payment on the next business day after the full payment was due.
23The payment date was obviously important to Ms. Jeffrey. Not only was it referred to in the offer (as to a 30-day period), but it was specifically negotiated (as to a calendar date) after the offer was accepted. Correspondence was exchanged on the point.
24One may speculate as to why the date was important. Its importance could be based on a lack of confidence by Ms. Jeffrey that prompt payment would be made, or on any other reason. However, there is no evidence about why the date (or the 30-day compliance period) was significant. For example, there is no evidence that the funds were to be used for a specific purpose by Ms. Jeffrey upon receipt.
25This agreement in this case is distinguishable from other contracts, such as real estate purchases, where time is specifically expressed to be “of the essence” as part of the deal. In such cases, it may well be that the transaction is required to close in order to fund other consecutive commitments. A term specifically setting out that time is “of the essence” is notice that dates are contractually so important that if the requirements are not met within the requisite time, there will be a breach, with the potential for a justified rescission.
26The key here is that there was no statement that time was of the essence in the offer to settle. It is not enough for Ms. Jeffrey to simply imply such a provision.
27The provision for post-judgment interest in the draft order is a red herring. Counsel for Ms. Jeffrey alleges that it was inserted by mistake. Regardless of that allegation, an order for the payment of money is presumed pursuant to s. 129 of the Courts of Justice Act, R.S.O 1990, c. C.43 to bear interest at the court’s post-judgment rate. As this court held in Bradley v. Bradley, 1997 CanLII 15689 (ON SC) at para. 22, interest is presumed unless the parties agree to its exclusion. I find the inclusion of the post-judgment interest clause in the draft order to be of no relevance in deciding the issue of whether time was of the essence.
28In summary, just because the payment date was important does not make it “of the essence”.
Conclusion:
29For the foregoing reasons, the motion of Ms. Jeffrey is dismissed.
30The motion of Mr. McNab is also dismissed except as to the issue of costs thrown away.
31There is no need to grant a summary judgment. There is an accepted offer to settle which is contractually binding by virtue of the dismissal of Ms. Jeffrey’s motion. Full payment has been made, subject to a possible claim by Ms. Jeffrey for two days’ interest which the parties can discuss.
32The matter should be scheduled for trial on the issue of support at an upcoming trial sitting in St. Catharines.
33When the motions were argued, there remained eight available days in the trial sittings. If Ms. Jeffrey was successful in her motion and both trial issues (support and unjust enrichment) remained outstanding, more than eight days would have been required, even if the total time needed was less than the original estimate based on some agreed facts. In those circumstances, the trial could not have been accommodated in the available time. If Ms. Jeffrey’s motion had been dismissed for oral reasons at the time and the trial was to start immediately, the available eight days might have been sufficient. However, counsel was not available on two of those days – one day for each counsel. Counsel for Mr. McNab suggested that the trial estimate could be reduced by one day if final submissions were to be made in writing. That would still not leave enough time for the trial to be completed during the sittings, and in fact counsel for Mr. McNab indicated that a written decision was needed. As a result, counsel were advised at the conclusion of the motions that the case would not be called during the May 2025 sittings.
34In those circumstances, it is not appropriate to make the trial peremptory on Ms. Jeffrey, since neither counsel was available during all the remaining available days in the May trial sittings.
Costs:
35The parties are encouraged to resolve the issue of costs of the motions between themselves. If they are unable to do so, they may submit Bills of Costs and make written submissions, consisting of not more than three pages in length according to the following timetable:
The respondent is to serve his Bill of Costs and submissions by June 23, 2025;
The applicant is to serve her Bill of Costs and submissions by July 7, 2025;
The respondent is to serve his reply submissions, if any, by July 14, 2025;
All submissions are to be filed with the court with a copy to St.Catharines.SCJJA@ontario.ca and uploaded to Case Center by July 16, 2025.
36If no submissions are received by the court by July 16, 2025, or any agreed extension, the matter of costs will be deemed to have been settled.
Reid J.
Date: June 9, 2025