Ontario Superior Court of Justice

Court File No.: FC-22-142
Date: 2025/06/03

Between:
Marsha-Yolaine Ingrid Grant (Applicant)
and
Michael Livingstone Kirlew (Respondent)

Applicant Counsel: H. Keith Juriansz
Respondent Counsel: Paul Riley

Heard: March 24, 2025
Released: June 3, 2025

Justice: Brian Holowka

Reasons for Decision

Overview

[1] Three matters were presented for the court’s consideration.

[2] First, the Applicant filed a motion seeking an order following the establishment of settlement terms between the parties, as set out in the Memorandum of Understanding prepared by Gil Rumstein, with revisions proposed and accepted by both parties.

[3] Second, the Respondent filed a motion concerning parenting issues. Specifically, the Respondent seeks the following orders:

a. A declaratory order that the Applicant has breached the parenting order of Smith J., dated November 27, 2023;
b. An order that the order of Smith J. be strictly followed by the parties in relation to one of the parties’ children, Neriah Kirlew;
c. An order that the Respondent resume counselling with Neriah Kirlew, with the assistance of Martha Njoku or another mutually agreed upon professional, on a bi-weekly basis for a period of six months, such therapy to take place pursuant to the children’s current availability and their extra-curricular schedule;
d. An order that the Respondent resume counselling with Naomi-Celia Kirlew, one of the parties’ children, with the assistance of Martha Njoku or another mutually agreed upon professional, on a bi-weekly basis for a period of six months, such therapy to take place pursuant to the children’s current availability and their extra-curricular schedule;
e. An order that the Applicant provide the Respondent with copies of Naomi’s physics course transcripts within 30 days of this order;
f. An order that the Applicant shall provide to the Respondent copies of all applications submitted by Naomi for post-secondary programs, including any offers of enrollment, confirmation of acceptance, and registration information, once available;
g. Costs of the motion on a full indemnity basis.

[4] Third, the Applicant made a written motion requesting an order directing the Respondent to pay for a s. 30 assessment, pursuant to the Children’s Law Reform Act, RSO 1990, c C.12, following the order dated February 22, 2024, and my direction dated October 2, 2024.

[5] Regarding the motion in writing, the issue is now moot. The Respondent has paid the amount necessary for the assessment to begin, albeit over a year later. The assessment process is now underway. Beyond the dispute about whether the order was properly made, there was also some confusion surrounding it. The parties state that they never received the endorsement from the October 2, 2024, case conference, nor the endorsement that related to the motion in writing which deferred the motion to today for discussion. A copy of both endorsements accompanies this decision. The Applicant seeks her costs concerning this motion in writing, asserting that it should never have been necessary. The Applicant may file brief written materials in support of her request for costs within 30 days of the release of this decision. The materials should not exceed three pages, excluding the bill of costs. The Respondent may file a similar brief response within 21 days of receiving the Applicant’s submissions regarding costs.

[6] The motion regarding parenting issues filed by the Respondent was recently submitted without the consent of the Applicant’s counsel. The Applicant’s counsel argued that there was insufficient time to respond appropriately. Only one hour had been allocated for the Applicant’s motion, and no additional time was provided to hear the Respondent’s motion. Consequently, the parenting motion could not be addressed within the available time. Given all the circumstances before me, I declined to hear the motion. The Respondent’s motion has been rescheduled to proceed on August 1, 2025, at 10:00 a.m. via Zoom. The parties may contact the trial coordinator in L’Orignal to seek earlier dates if desired.

[7] The balance of these reasons pertains to the Applicant’s motion for an order following the Memorandum of Understanding as amended by the parties.

[8] The motion raises the following issue: was a binding, enforceable settlement reached between the parties?

[9] For the reasons outlined below, I find that the parties indeed reached such an agreement.

Background Facts

[10] The parties were married on July 30, 2006, and separated on October 28, 2021. They have two children from the marriage, Neriah Kirlew, born June 14, 2014, and Naomi-Celia Kirlew, born February 1, 2009. The Applicant seeks, among other things, child support, spousal support, and several claims related to property, including equalization of the net family property and the sale of the family property. The Respondent also seeks equalization of the net family property and the sale of the family property.

[11] The parties attended mediation with mediator Gil Rumstein on February 19, 2024, regarding support and property issues. Legal counsel represented the parties.

[12] Following the mediation on February 20, 2024, Mr. Rumstein emailed the parties and their lawyers to summarize the tentative agreements reached. The email began with the following:

As promised, this email is meant to summarize the tentative agreements reached at yesterday’s mediation. This email does not constitute [a] binding and enforceable agreement. However, if you instruct your counsel to email me and accept the terms of the settlement, that exchange of emails will bind you in accepting the settlement.

[13] The email outlined tentative agreements regarding ongoing support, retroactive support, property settlement, and costs. It concludes with Mr. Rumstein stating that he will draft the separation agreement and invites recipients to inform him of whether anything was overlooked or misstated.

[14] On February 22, 2024, Mr. Rumstein follows up with an additional email outlining the terms of the proposed Memorandum of Understanding. The email indicates that counsel had jointly reviewed the terms that afternoon. Mr. Rumstein notes that he will await confirmation from each lawyer that the matter is settled on those terms, allowing him to proceed with drafting the separation agreement.

[15] The Respondent’s counsel, Ms. Margeit, replies to Mr. Rumstein’s email the same day at 4:19 p.m. She states the following:

I will be forwarding the email to my client momentarily. I expect no issues subject to the small item below.

One thing to note is that paragraph 13 should read:

Yolaine will pay to Michael a property settlement (equalization payment - $115,020, which is to be paid first, and purchase of his interest in the matrimonial home - $330,040) of $445,060.00 payable as follows

This reflects our conversation today, and I expect is not a problem.

I will be in touch soon,

Jessica

[Emphasis in original.]

[16] On behalf of the Applicant’s counsel, a law clerk agreed to the proposed amendment and proposed another, the same day at 4:46 p.m. The substance of the email states:

Mr. Juriansz has no problem with Ms. Margeit’s amendment, outlined in her e-mail below. There is one slight revision Mr. Juriansz would also like to make:

2. Should Yolaine have a future obligation to pay support for the children her obligation will be determined at that time, taking into account provision 3 below.

As well – please change the word “gas” to “mileage” at para. 8 and please change dates of payment throughout to the 2nd rather than the 1st.

[Emphasis in original.]

[17] The Respondent’s counsel, on behalf of his client, consents to the Memorandum of Understanding, subject to further changes, the same day at 9:26 p.m. The email states as follows:

I confirm that Michael consents to the MOU, as set out in Gil’s email sent at 3:12 p.m. subject to the following changes:

The beginning of paragraph 13 should read:

Yolaine will pay to Michael a property settlement (equalization payment - $115,020, which is to be paid first, and purchase of his interest in the matrimonial home - $330,040) of $445,060.00 payable as follows

Paragraph 2 should read:

Should Yolaine have a future obligation to pay support for the children her obligation will be determined at that time, taking into account provision 3 below. Michael will pay Yolaine child support for Naomi and Neriah of $5,415 per month commencing March 1, 2024 to and including February 1, 2029. This amount will not be deductible to Michael or includable by Yolaine in their incomes for tax purposes and it shall be non-variable regardless of any changes to Michael’s or Yolaine’s incomes during that period of time.

Paragraph 8 change from the word "gas" to "mileage"

I do believe that the dates for the payments are correct as set out in Gil’s email- but point me to the errors if I am mistaken (I don’t think this should be an issue).

[Emphasis in original.]

[18] On February 23, 2024, at 8:56 a.m., Mr. Juriansz, on behalf of the Applicant, confirms that his client agrees with the proposed changes. He states that they have an agreement. The email states as follows:

See paragraphs 1 and 6, which have the payments on the 1st day of the month. I believe Jessica, that you requested that payments be on the 2nd day of the month, which is acceptable.

I have spoken to my client and she is in agreement with the changes proposed by Jessica on behalf of Michael and by my office on behalf of Yolaine.

So we do have an agreement. Gil, I prefer Minutes of Settlement, but they would incorporate the usual terms in a separation agreement and include a provision that certain terms would be captured in a Court Order.

[19] Ms. Margeit, on behalf of the Respondent, confirms the agreement, the same day at 9:31 a.m. Her email reply, sent shortly after, states as follows:

The dates that should be changed to the second are the ones where Yolaine pays Michael back (which I think is reflected in Gil’s original email).

So, Michael pays Yolaine on the 1st of every month and Yolaine pays Michael back on the 2nd of every month for years 6, 7, and 8.

I don’t think this is a big deal for the purposes of the agreement.

I am glad we were able to resolve this

[20] Three versions of the Minutes of Settlement were exchanged between the parties from March 5 to November 8, 2024. Ultimately, the parties could not reach an agreement on the terms to be included in the Minutes of Settlement.

[21] The evidence provided by the Applicant indicates that counsel for the Respondent delayed in addressing the Minutes of Settlement, failed to respond to the Applicant’s counsel, and neglected to consider amendments proposed by the Applicant’s counsel to Mr. Rumstein’s original version. Ultimately, the Respondent attempted to modify the settlement terms and introduce provisions that were not originally agreed upon and did not form part of the Memorandum of Understanding.

[22] In light of the parties’ inability to agree on the Minutes of Settlement, the Applicant’s counsel prepared a final order based on the Memorandum of Understanding for the Respondent’s consent. This was sent to the Respondent’s counsel on December 4, 2024.

[23] The Respondent’s counsel replied the same day, taking the position that there was no settlement agreement between the parties.

[24] The Respondent’s affidavit, dated March 18, 2025, acknowledges that the parties engaged in a private and closed mediation on February 19, 2024. He notes that the agreement signed by him and the Applicant stated, “[i]n other words, if no agreement is reached during mediation, the only information which may be communicated to a judge or to an arbitrator is the fact that we participated in mediation and were not successful in negotiating an Agreement.”

[25] The Respondent’s affidavit outlines the communications between him and his counsel concerning the mediation and subsequent steps taken towards potential Minutes of Settlement. The affidavit does not contain an explicit waiver of solicitor-client privilege.

Positions of the Parties

[26] The Applicant contends that the parties have reached an agreement concerning support and property claims arising from the mediation. Therefore, she asserts that she is entitled to a final order in accordance with the terms of the settlement agreement. She maintains that an email thread between the parties and the mediator is sufficient to demonstrate the existence of an agreement regarding its essential terms.

[27] The Applicant submits that the requirement outlined in section 55(1) of the Family Law Act, RSO 1990, c F.3—that a domestic contract is only enforceable if it is in writing, signed by the parties, and witnessed—does not preclude the court from enforcing family law settlements in appropriate circumstances. The Applicant relies on the factors established in Geropoulos v. Geropoulos, 35 O.R. (2d) 763, at p. 769 (C.A.).

[28] Notwithstanding the assertion made by the Respondent in his affidavit that the Applicant’s motion improperly discloses to the court the confidential and privileged settlement discussions that transpired during mediation, the oral and written submissions presented by the Respondent’s counsel focused on their argument that (a) in the absence of a signed document, a binding agreement exists only if there is a consensus on all essential terms of the agreement, and that (b) the parties’ intention is of paramount importance and may be inferred from their conduct.

Analysis

[29] In Fernicola v. Fernicola, 2022 ONSC 1041, Woodley J. confirmed that three lines of inquiry must be considered when determining whether the parties have reached a settlement. She stated at para. 55 as follows:

To determine whether the parties have reached a settlement, the Ontario Court of Appeal in Halpern v. Halpern, 2014 ONSC 4246, citing Lundrigan v. Andrews, 2009 ONCA 160 and Ward v. Ward, 2011 ONCA 178, has set out three distinct lines of inquiry to consider:

(1) was there a "meeting of the minds" or consensus ad idem, that was manifest to the reasonable observers?

(2) was there a consensus on all of the essential terms of the agreement? and

(3) did the parties make the agreement conditional upon any other term, or subject to execution or a formal contract?

[30] Woodley J. also observed, at para. 56, that “[t]he test is objective and the parties will be found to have reached a meeting of the minds where it is clear to the objective 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. (See Cook v. Joyce, 2017 ONCA 49).”

Was there a consensus ad idem?

[31] In my view, when considering the facts objectively and reasonably, the email exchanges between the parties’ counsel and Mr. Rumstein demonstrate a meeting of the minds. The emails from both lawyers reflect this state of affairs. The Applicant’s counsel, in his email dated February 23, 2024, states, in part, “so we do have an agreement. Gil, I prefer Minutes of Settlement, but they would incorporate the usual terms in a separation agreement and include a provision that certain terms would be captured in a Court Order” (Emphasis added).

[32] The Respondent’s counsel responds by email shortly thereafter, stating, in part, “I am glad we were able to resolve this”.

[33] The parties’ conduct indicates that an agreement was reached and that there was a meeting of the minds, demonstrated by the following additional factors:

a. The Respondent has paid child and spousal support following the negotiated settlement.
b. The Respondent’s counsel emailed the Applicant’s counsel on February 28, 2024, confirming that the parties had settled the financial issues and advising that she wished to vacate a motion date scheduled to address the settlement and property issues. The email stated, “[f]urther to the parties settling the financial issues, I want to confirm that the parties are not proceeding with the motion on March 12, 2024 and that we can vacate the date with the court.”
c. The Respondent filed a case conference brief on September 25, 2024, stating that the issues of spousal support, child support, and equalization of net family property had been settled.

[34] The Respondent asserts that the Applicant failed to fulfill her duties under the contested agreement, indicating that no agreement was reached. Specifically, the Respondent states that the Applicant refused to provide a receipt for $100,000 for spousal support in 2023, which hindered the Respondent’s ability to file his income taxes on time and consequently led to a financial penalty for late filing. The Applicant claims that she did perform her duties under the agreement. I conclude that, at most, the Applicant failed to provide the receipt on time. It is common ground that she did give the receipt. I do not attribute significant weight to this submission in determining whether an agreement was formed.

Was there a consensus regarding all the essential terms of the agreement?

[35] In my view, there was a consensus on all of the essential terms of the agreement.

[36] The Respondent submits that there was only an agreement in principle on some, but not all, of the essential terms of the agreement, and that further refinement would occur through discussions. The Respondent submits, by example, that the term “reasonable post-secondary expenses” was not defined and requires further definition and clarity to avoid ambiguity or uncertainty.

[37] The law regarding settlement was reviewed by Conlan J. in N.C. v. M.D., 2024 ONSC 2296, at paras. 15-16:

An agreement is binding if the parties consider that it contains all of the essential terms. That the parties intend those terms to be incorporated into a formal document, like minutes of settlement or a consent, together with the usual provisions ancillary to that type of agreement, does not defeat the fact of an agreement having been reached. An agreement is not final or binding, however, if it is nothing more than an agreement to later agree on essential terms or to defer the binding nature of the agreement until execution of a formal document. Further, to be binding, it is not necessary that the agreement include all of the ancillary terms that are already implicit in its content. Ward v. Ward, 2011 ONCA 178, at paragraphs 53-54, Bogue v. Bogue, at paragraphs 12-13, Bawitko Investments Ltd. v. Kernels Popcorn Ltd., at pages 103-104 of the decision reported at 79 D.L.R. (4th) 97 (C.A.).

In determining whether there was a meeting of the minds—whether the parties reached a settlement, it is important to discern the intention of the parties, including by looking at the conduct of the parties. Here"intention" is not used in a subjective sense. Rather, it refers to whether, from the perspective of a hypothetical observer, the parties appeared to have reached an agreement. Ward, supra, at paragraph 66, Andrews v. Lundrigan, 2009 ONCA 160, at paragraph 8, citing Bawitko, supra at page 104 and G.H.L. Fridman, The Law of Contract in Canada, 5th edition (Toronto: Thomson Carswell, 2006), at page 6.

[38] In my view, the agreement contained all of the essential terms and was not merely an agreement to later agree on those terms. It was not necessary for the agreement to include all of the ancillary terms implicit in its content. The term “reasonable post-secondary expenses” does not require further elaboration for the agreement to be complete. Section 7 of the Child Support Guidelines, O. Reg. 391/97, provides tests of necessity and reasonableness if the parties cannot agree regarding the expense under consideration. If necessary, the application of the term “reasonable post-secondary expenses” may be resolved by resorting to the usual family law processes. I do not consider the additional detailed particularization of the extent of the Respondent’s obligation to contribute to post-secondary expenses to be essential to a binding agreement.

[39] In Ward v. Ward, 2011 ONCA 178, 104 O.R. (3d) 401, Lang J.A. considered an argument similar to that submitted by the Respondent regarding missing or insufficiently defined terms of the agreement. She held at para. 63:

Finally, the wife describes uncertainty regarding the agreed-upon term in the MOA that she would have use of the cottage for three weeks each year “with specific times to be finalized”. However, any problem in reaching an agreement in a year regarding specific times could be resolved through the usual family law processes. The need to particularize timing could not be said to have rendered the MOA uncertain in any essential way. The wife’s subsequent proposal, incorporated into her draft separation agreement, that she would notify the husband by May 1 of each year when she would use the cottage and on which days, does not diminish the finality of the term to which the parties had already agreed. Any breach of the provisions of the agreed-upon term would be the subject of separate negotiations or proceedings. [Citations omitted.]

[40] The circumstances, as well as the reasoning of Lang J.A. in Ward, are analogous and applicable to the situation before me.

[41] I conclude that the email thread between the parties, as well as their post-mediation conduct, is sufficient to establish an agreement on the essential terms of the settlement. The lack of formally prepared and signed Minutes of Settlement does not affect the binding nature of the agreement: see Widdifield v. Hunter, 2023 ONSC 6522, 97 R.F.L. (8th) 194, at para. 110; Bogue v. Bogue, at para. 12, citing Bawitko Investments Ltd. v. Kernels Popcorn Ltd., 79 D.L.R. (4th) 97 (Ont. C.A.), at pp. 103-104.

Requirement for a Written Domestic Contract

[42] Section 55(1) of the Family Law Act provides that a domestic contract will only be enforceable if it is in writing, signed by the parties, and witnessed. Despite this provision, the court nevertheless has the authority to enforce family law settlements that do not meet the formal requirements of that section: see Geropoulos, at p. 769; Harris v. Harris, [1996] O.J. No. 2430 (Gen. Div.); and Gorman v. Gorman, 2021 ONSC 2577, at para. 64.

[43] Considering the factors outlined in these cases, I am confident that the agreement here is appropriate to enforce, even though it does not meet the formal requirements described above.

Conclusion

[44] Considering the preceding reasons, the Applicant’s motion is granted, and a final order shall be issued in accordance with the settlement terms reached by the parties, as outlined in the Memorandum of Understanding prepared by Mr. Rumstein. This includes the revisions proposed and accepted by both parties, as detailed in the draft order attached as schedule “A” to the notice of motion, dated January 16, 2025.

Costs

[45] The Applicant shall serve and file written cost submissions within 20 days of the release of this decision, limited to no more than three pages, excluding a Bill of Costs or Offers to Settle. The Respondent shall deliver written cost submissions within 20 days of being served with the Applicant’s cost submissions, also limited to three pages, excluding a Bill of Costs or Offers to Settle. Any reply submissions shall be served and filed by the Applicant within five days of receiving the Respondent’s cost submissions.

Justice Brian Holowka
Released: 2025/06/03