Gyurko v. Gyurko, 2026 ONSC 1399

CITATION: Gyurko v. Gyurko, 2026 ONSC 1399

COURT FILE NO.: FC-16-51535

DATE: 20260309

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

TEREZIA GYURKO

Applicant

– and –

ATTILA GYURKO

Respondent

Jared Persaud, Counsel for the Applicant

Self-Represented

HEARD: January 21, 2026

RULING ON MOTION

JARVIS J.:

1The applicant wife (“the wife”) has brought a motion for summary judgment to enforce the terms of an agreement reached between the parties after mediation. It is opposed by the respondent (“the husband”). The motion is granted. These are the reasons.

Background

2The following facts are relevant:

(a) The parties married on January 23, 1988. Their valuation date is June 30, 2016. The wife started these proceedings shortly afterward. The principal issues involved equalization and spousal support.¹

(b) The wife withdrew her spousal support claim on March 20, 2023, leaving only the equalization, and a related trust, claim outstanding.

(c) The parties were scheduled to start a trial on May 30, 2023. They advised the court that they had agreed to mediate with a respected mediator (Tom Dart). Accordingly, the case was adjourned to the November 2023 sittings.

(d) The wife signed a closed Mediation Agreement (“the mediation agreement”) with Mr. Dart on July 6, 2023, and the husband signed it on August 14, 2023. The parties submitted their mediation briefs, financial statements and net family property statements to the mediator on August 16, 2023.

(e) Among other terms of the mediation agreement, paragraph 4 dealt with confidentiality, subsection (a) of which provided as follows:

a) The Parties agree that the mediation sessions are settlement negotiations and disclosures made in the mediation are inadmissible in any future litigation or arbitration. No transcripts shall be kept of the mediation proceeding.

(f) Paragraph 10 (e) of the mediation agreement said this:

e) We agree that no agreement we reach during mediation will be binding upon us until:

i) after we each get independent legal advice regarding its terms (unless one or both of us does not wish to obtain independent legal advice and specifically, in writing, waives that requirement), and

ii) the agreement is reduced to writing and signed by each of us before a witness.

(g) The mediation proceeded on August 17, 2023. The parties were represented by their solicitors of record, Mr. Jared Persaud for the wife and Ms. Faye McFarlane for the husband.

(h) The mediation was successful. In a detailed report to the parties dated later on August 17th, Mr. Dart identified the property issues involved and summarized where the parties’ positions differed and the negotiating process that led to an agreement. The terms of the agreement were recorded as follows:

Agreement:

They therefore have agreed as follows:

1. Atilla will pay Terezia $900,000, $250,000 on signing the separation agreement and the balance within six months.

2. Jared, Terezia’s lawyer, will draft the separation agreement.

3. Each party will bear their own costs.

4. There will be no prejudgment interest payable on this amount.

5. Each party will waive all entitlement to spousal support.

6. The separation agreement will contain full releases of all other claims.

(i) Under Other Matters immediately below, Mr Dart confirmed that the parties “both have had independent legal counsel” and that it was their intention “to incorporate the above terms of the agreement into a separation agreement.” They were encouraged to return to mediation if there was “any difficulty in finalizing and formalizing the agreement.”

(j) Mr. Dart emailed his report to the parties’ lawyers after the mediation concluded on August 17th.

(k) Ms. McFarlane thanked Mr. Dart and Mr. Persaud for their hard work by email on August 18, 2023. There is no suggestion in that email that no agreement had been reached or that there were outstanding conditions relating to the mediation.

(l) On November 17, 2023, the parties were contacted by the Newmarket Trial Coordinator notifying them that their trial would proceed on the following Monday, November 20, 2023. When Mr. Persaud advised that the matter had settled, counsel were directed to appear virtually before MacPherson J. to speak to the matter.

(m) When the matter proceeded on November 20, 2023, the following exchanges between the court and the lawyers are relevant:

“J. PERSAUD: So, my friend and I have settled the case. We’ve diligently done that. We settled it at a closed mediation a couple months ago and, unfortunately, did not have an opportunity to strike it from the list. But we are in the process of, pursuant to that mediation, going back and forth on a separation agreement that was emanating from that. We’ve agreed to terms, and it fell on my office to send out that separation agreement to my friend. I just actually just sent it out to my friend just now, so we’re going to be going back and forth on that and tidying that up. But I’m content with having noted that the matter is settled, and I’m sure my friend can say the same. And I do thank my friend for that.”

And a little later:

“F. MCFARLANE: Yes, Your Honour. Good morning. And...

THE COURT: Good morning.

F. MCFARLANE: ...I do have instructions from my client that the matter is settled, based on the terms of mediation. As my friend indicated, we just have to tidy up the separation agreement” (bolding added).

(n) MacPherson J. observed that the case was “an old file” and endorsed the record that “To their credit the parties resolved all issues on a final basis and counsel are working on executing a separation agreement.” The matter was marked as “removed from the November 2023 trial sittings as it has settled.”

(o) A draft of the separation agreement was forwarded to Ms. McFarlane at or around the time when the court was hearing the matter. After its receipt, Ms. McFarlane responded that she would send the draft to her client to review but that she was unable to deal with the matter until the holidays. She also confirmed that she would discuss with her client his making the first payment (required by the agreement). I have reviewed the draft agreement; it is unexceptional and captures the terms recorded by Mr. Dart.

(p) On February 21, 2024, Mr. Dart advised Mr. Persaud that the husband and Ms. McFarlane had contacted him “to express their response to the closed mediation report…and to convey to you [the husband’s] request that we return to mediation to deal with the division of property once again.” The wife declined the request, taking the position that there was a binding agreement. Mr. Persaud advised that he had instructions to move for a summary judgment.

(q) The wife’s motion first came before this court on December 18, 2024. In his affidavit sworn on December 11, 2024, the husband claimed that he had only agreed to settle if the figures on which the wife was relying were “real.” He also claimed that he had only received Mr. Dart’s report on November 30, 2023 after the lawyers had appeared before MacPherson J. ten days earlier and the matter was recorded as settled. According to his calculations, the husband acknowledged that he only owed the wife $413,543.87.

(r) The husband opposed disclosure of the mediator’s report as being subject to settlement privilege (more on that issue below). Among other terms, I ordered disclosure of the report, a transcription of the November 20, 2023 proceeding before MacPherson J., provided directions with respect to filing any additional evidence and required the husband to pay the wife $413,543.87 on a without prejudice basis.

(s) A return of the wife’s motion was ultimately scheduled for November 12, 2025.

(t) On October 16, 2025, Ms. McFarlane advised the husband in an email that the wife’s motion was “to enforce the settlement terms that you instructed me to agree to at court. However, you are correct, there is no Consent Order or Written Agreement.” Given that the husband apparently did not agree on the settlement figure “… you have to attend [at the motion] yourself and act on your own behalf or retain other [sic] lawyer to represent you as I am not able to go to the court and put forward the position you are taking.” In an email dated the next day, the husband confirmed that he needed to find a new lawyer and that until he did the November motion date had to be postponed (italics added).

(u) On October 20, 2025, the trial coordinator advised the parties’ lawyers that the wife’s motion was adjourned on consent to January 21, 2026, peremptory to the parties. There is no evidence that Mr. Persaud knew that the husband and Ms. McFarlane had just agreed to end their solicitor/client relationship.

(v) A Notice of Change in Representation was sent to the husband on October 21, 2025 by Ms. McFarlane. There is no evidence that the husband signed this document or, if he did, that it was ever filed with the court.

(w) On December 19, 2025, Ms. McFarlane’s office moved to be discharged as solicitor of record for the husband. This motion was supported by an affidavit from the husband in which the exchanges between him and Ms. McFarlane referenced in (o) and (t) above were disclosed. On January 15, 2026, Bateman J. granted the motion in chambers.

(x) On January 19, 2026, the husband moved to adjourn the motion scheduled for January 21, 2026. The motion was unsupported by an affidavit but contained the following representations:

“During the Christmas season my counsel terminated our relationship…

I have been told by multiple firms that they could not represent me before May, so I would like to ask the court to adjourn the court date to a later time of May or later…

The plaintiff’s lawyer wants to push for a case to be tried, without me having legal representation so we can’t bring to light his false and wilful misrepresentation of the financial statement, his willful (sic) lies and false information given to the mediator hereby tricking him to accept his narrative…. He wastes the court’s time and money as well as his clients and mine, the applicant. He should, at the minimum be repremanded (sic) for his unprofessional conduct. I paid the applicant fully, all monies owed.”

(y) I dismissed the husband’s motion and directed that the wife’s motion proceed the next day as scheduled, which it did. The evidence before the court on January 21, 2026 comprised four affidavits from the wife (August 23, 2024; December 11, 2024; January 16, 2025; and December 18, 2025) and one affidavit from the husband (December 11, 2024), including exhibits.²

Summary Judgment

3A Summary Judgment motion can fulfill important objectives in family law proceedings. It enables the court to make an expeditious, less expensive and proportionate disposition of a case in whole or in part.

4The procedure governing a motion for summary judgment is set out in r.16 of the Family Law Rules,³ the relevant provisions of which provide as follows:

RULE 16: SUMMARY JUDGMENT

WHEN AVAILABLE

16. (l) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case.

EVIDENCE REQUIRED

(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.

EVIDENCE OF RESPONDING PARTY

(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.

EVIDENCE NOT FROM PERSONAL KNOWLEDGE

(5) If a party’s evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.

NO GENUINE ISSUE FOR TRIAL

(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

POWERS

(6. l) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

5As stated by the Supreme Court of Canada in Hryniak v. Mauldin⁴, to succeed on a summary judgment motion, an applicant must prove that there is no genuine issue requiring a trial” (at para. 43). “No genuine issue for trial” has been equated with “no chance of success” and “plain and obvious that the action cannot succeed.”⁵

6A two-step analysis is required. The judge must first determine if there is a genuine issue requiring a trial on the evidence without using the additional fact-finding powers set out in r.16 (6.1) of the FLR. If, after this initial determination, there remains a genuine issue for trial, the judge may resort to the additional fact-finding powers to decide if a trial is required. These powers involve the weighing of evidence, evaluating credibility, drawing inferences and possibly receiving oral evidence on the motion. The use of these powers is discretionary.

Analysis and discussion

Settlement Privilege

7In Union Carbide Canada Inc. v. Bombardier Inc.⁶, the Supreme Court considered whether a confidentiality clause in a mediation agreement precluded review by a court in circumstances where the parties disputed that a settlement had been reached. At issue was the interaction between two important protections: the confidentiality of communications set out in a mediation contract and the common law evidentiary rule excepting those communications where a party was seeking to prove the existence or scope of a settlement. Wagner J. (as he then was) explained the privilege and the exception to it as follows:

[31] Settlement privilege is a common law rule of evidence that protects communications exchanged by parties as they try to settle a dispute. Sometimes called the “without prejudice” rule, it enables parties to participate in settlement negotiations without fear that information they disclose will be used against them in litigation. This promotes honest and frank discussions between the parties, which can make it easier to reach a settlement: “In the absence of such protection, few parties would initiate settlement negotiations for fear that any concession they would be prepared to offer could be used to their detriment if no settlement agreement was forthcoming” (A. W. Bryant, S. N. Lederman and M. K. Fuerst, The Law of Evidence in Canada (3rd ed. 2009), at para. 14.315).

[35] The exception to settlement privilege at issue in the case at bar is the rule that protected communications may be disclosed in order to prove the existence or scope of a settlement. This exception is explained by Bryant, Lederman and Fuerst:

If the negotiations are successful and result in a consensual agreement, then the communications may be tendered in proof of the settlement where the existence or interpretation of the agreement is itself in issue. Such communications form the offer and acceptance of a binding contract, and thus may be given in evidence to establish the existence of a settlement agreement. [para. 14.340]

The rule is simple, and it is consistent with the goal of promoting settlements. A communication that has led to a settlement will cease to be privileged if disclosing it is necessary in order to prove the existence or the scope of the settlement. Once the parties have agreed on a settlement, the general interest of promoting settlements requires that they be able to prove the terms of their agreement. Far from outweighing the policy in favour of promoting settlements (Sable Offshore, at para. 30), the reason for the disclosure — to prove the terms of a settlement — tends to further it. The rule makes sense because it serves the same purpose as the privilege itself: to promote settlements.

8The court found (at para. 67) that while it was open to the parties to limit their ability to prove the terms of any settlement, the confidentiality terms had to be clearly expressed in their mediation contract. In Association de médiation familiale du Quebec v. Bouvier⁷, the Supreme Court held that, as a general rule, the settlement exception applied to communications in family mediations (at para. 102).

9In Butler v. Butler⁸, Himel J. dealt with a motion to enforce the terms of an unsigned Memorandum of Understanding (“MOU”) dictated by the parties’ mediator after a lengthy mediation. The MOU addressed the parties’ property and support claims, and it purported to resolve those claims on a final basis. One of the parties alleged that there was no agreement and argued that settlement privilege should be applied to prevent disclosure of the MOU and of email communications between the parties’ lawyers and the mediator. Applying Bouvier, Himel J. held (at para. 13) that a settlement exception to mediation privilege applied and that only those communications essential to establishing the existence or terms of the agreement were discoverable. The exception was applied in the end, but the evidence fell short of proving that the parties had reached a consensus (at para. 29); in other words, there was no requisite meeting of the minds on the agreement’s terms.

10While in the case before this court, paragraph 4(a) of the mediation agreement dealing with confidentiality provided that “disclosures made in mediation are inadmissible in any future litigation or arbitration” and Mr. Dart reported under “Other Matters” that “neither this report nor any other matter arising in mediation may be used by either party in any subsequent proceeding…” there was no express reference to contracting out of the settlement exception as might be expected given the public policy interest in promoting settlements as explained by Wagner J.J. in Union Carbide (at paras. 32 and 33) and reaffirmed by Kasirer J. in Bouvier (at para. 98). It follows that the exception to the settlement privilege applies in this case. But was there a meeting of the minds on the essential terms of a settlement? In my view, there was.

The agreement

11In his December 11, 2024 affidavit and his submissions, the husband maintained that the settlement recorded by Mr. Dart was conditional on his (i.e., the husband) verifying the net family property calculations which led to the husband owing a $900,000 equalization payment and that he had made this very clear to the mediator, his lawyer and his wife when the mediation concluded. I am unable to accept this for these reasons:

(i) On August 16, 2023, the day before the mediation, both parties’ lawyers submitted mediation briefs to Mr. Dart which contained their client’s net family property statements and relevant pleadings. Ms. McFarlane revised her client’s statement shortly afterward. There was no reference in either party’s materials that there was deficient disclosure (and none referenced later in the mediator’s report).

(ii) The husband confirmed to the court that the mediator had both parties’ financial documents when the mediation proceeded:

THE COURT: But I thought you told me a few moments ago that …the information upon which you are relying upon now was, in fact, information that you had provided to Ms. MacFarlane (sp) and was with you at the time that the mediation proceeded. Is that correct? So the values or the concerns that you had with respect to values or things of that nature, those were known to Mr. Dart at the time that you concluded the mediation on August 17th. Is that correct?

GYURKO: Yes, Your Honour… (bolding added).⁹

(iii) During the mediation, the parties were provided with a spreadsheet outlining the financial differences between them and the mediator then recorded the substance of the negotiations as follows:

Using the above figures the parties still found themselves fairly far apart when taking into account other assets and liabilities not included in the real estate calculations.

As negotiations progressed, Attila offered to pay $700,000 within 6 months. Terezia countered with $1.1 million, $240,000 on signing the agreement and the balance over 6 months. After some back and forth the parties agreed to accept the mediator’s recommendation that Attila pay Terezia $900,000, $250,000 on signing the agreement and the balance within six months.

(iv) There is no reference in the mediator’s report to the recorded terms of the agreement being conditional.

(v) The husband’s assertion that there was no agreement is inconsistent with the mediator reporting that “[A]fter confirming the contents, the parties’ intention is to incorporate the above terms into a separation agreement.”

(vi) The husband told the court when the motion was heard that he “had not seen any numbers during mediation and I got the numbers from Mr. Dart after the fact.” I do not believe him. As already noted, the mediator had the parties’ financial disclosure provided to him before, and during, the mediation.

(vii) There is no evidence in the three months after the mediator’s report was sent to the lawyers that any issue was raised by Ms. McFarlane (or by the husband – but see (x) below) about the report’s contents or that the terms of the recorded agreement were conditional.

(viii) Ms. McFarlane’s representation to MacPherson J. on November 20, 2023 was unambiguous that she had instructions from the husband that the case was settled “based on the terms of the mediation.” There was no reference in Ms. McFarlane’s interaction with MacPherson J. that the settlement was conditional on further financial disclosure or negotiation.

(ix) There is no evidence from Ms. McFarlane after the case was marked as settled by MacPherson J. that qualified her representation to the court.

(x) More problematic for the husband is the fact that he claimed in his December 11, 2024 affidavit (apparently commissioned by his lawyer) that he only received the mediator’s report and related material after his lawyer’s November 20, 2023 court appearance. Ms. McFarlane had the report since shortly after it was circulated.

(xi) It is not an unreasonable inference that the husband’s post-mediation assertion that there was no agreement reached at mediation was the reason why Ms. McFarlane told him that she was unable to go to court and represent him.

12There was no evidence that, at any time, Ms. McFarlane acted without instructions. As observed by the Court of Appeal in Dick v. McKinnon¹⁰, it is well established law that “a solicitor of record has ostensible authority to bind his or her clients and that opposing counsel are entitled to rely on that authority in the absence of some indication to the contrary.” Even more so when the representation is made in unambiguous terms to a court and relied upon by the court. In my view, Ms. McFarlane’s representation to MacPherson J. vitiated the requirement in paragraph 10(e) of the mediation agreement that any settlement agreement between the parties would not be binding unless it was reduced to a writing signed by them and witnessed.

13Based on the foregoing, the wife has presented satisfactory evidence showing on a balance of probabilities that there is no genuine issue requiring a trial. The husband’s bald allegations and denials are simply that; he has failed to set out specific facts showing there is a genuine issue for trial. There is no need to proceed to the second stage of the Hryniak analysis.

Costs

14The wife is the successful party and is presumptively entitled to costs pursuant to the FLR. She claims $40,555.55 on a full recovery basis or $30,416.66 on a partial (75%) recovery basis, both figures inclusive of disbursements and HST. Her Bill of Costs was filed when the motion was argued. No comparative Bill of Costs was filed by the husband.

15The wife’s Bill records Mr. Persaud’s billing rate, year of call and appends a summary of two client invoices covering the period from February 21, 2024 to January 20, 2026. A flat fee of $3,000 is sought for the January 21, 2026 court appearance. The summary notes that 88 hours were spent by Mr. Persaud and a clerk. Mr. Persaud’s hourly billing rate ($375 plus HST) and that of his clerk ($50) are reasonable.

16Neither party made an Offer to Settle.

1There are certain well-established principles guiding the court’s exercise of its discretion pursuant to the FLR. The primary objective, of course, is to enable the court to deal with cases in a fair and timely manner. Four fundamental purposes are served by an award of costs: (1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement; (3) to discourage and sanction inappropriate behaviour by litigants; and (4) to ensure that cases are dealt with justly.¹¹ As observed by the Court of Appeal in Beaver v. Hill¹² reasonableness and proportionality frame the exercise of the court’s discretion. The amount to be awarded is what the “court views as a fair and reasonable amount that should be paid by the unsuccessful [party]”: Boucher v. Public Accountants Council for the Province of Ontario.¹³ Lastly, the court is not required to undertake a detailed inquiry into individual services or steps unless the amount of time claimed is excessive or overreaching.¹⁴

17In reviewing the wife’s Bill and the court file relating to her motion, the following observations are relevant:

(a) The wife filed four affidavits with exhibits, whereas the husband delivered one affidavit.

(b) Several services were duplicated. For example, Mr. Persaud recorded 24.3 hours between August 14, 2024 to August 22, 2024 in undertaking research and preparing his client’s motion materials. Between December 4, 2025 to December 16, 2025, another 15.5 hours was recorded for research and preparation of further material for the court. This was excessive.

(c) There were many entries by the lawyer for what were clearly clerical duties, such as uploading court documents for Case Center, ordering a courier and responding to or monitoring communications with the court offices. This list is not exhaustive.

(d) Ordinarily on a motion for summary judgment, facta would be prepared and filed. None was filed in this case and no authorities were provided to the court, perhaps a tacit acknowledgement by the wife that the motion issues were less complicated than they first appeared.

(e) No Offers to Settle were served. The failure to make an Offer may constitute unreasonable behaviour and may, but will not invariably, impact an award.¹⁵

18Considering that the primary objective of the FLR is to deal with cases justly as set out in r.2 (2) and the framework for assessing costs in r. 24 (14), a fair and reasonable award of costs to the wife in this case is $25,000 inclusive of disbursements and HST.

Disposition

19The following is ordered:

(a) The husband shall pay to the wife $900,000 effective November 20, 2023, with interest at the post-judgment rate set out in s. 129 of the Courts of Justice Act.¹⁶

(b) The husband shall be entitled to a credit of $413,543.87 paid after the court’s order dated December 18, 2024, effective as of the date of payment, and post-judgment thereafter on the remaining balance as per (a) above.

(c) The husband shall pay to the wife all-inclusive costs of $25,000.

Footnotes

1. 1There are two children of the marriage: neither factors into this matter.
2. 2In the court’s December 11, 2024 endorsement, deadlines were given to the parties to deliver any other evidence about the information given to the mediator. The wife delivered an affidavit; there is no record that the husband delivered an affidavit and when asked (when the motion was argued), he advised that he could not recall whether he had sworn one or, if he had, whether it had been filed. None could be found in Case Center. Mr. Persaud advised that he was unable to locate one too.
3. 3O. Reg. 114/99 (“FLR”).
4. 4Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 (“Hryniak”).
5. 5Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, 432 D.L.R. (4th) 497, at para. 13.
6. 62014 SCC 35, [2014] 1 S.C.R. 800.
7. 72021 SCC 54, [2021] 3 S.C.R. 805.
8. 82022 ONSC 4675.
9. 9The context for this excerpt is a preceding exchange with the court in which the husband was asked whether before the mediation he had the opportunity to provide the true numbers to Mr. Dart to which the husband responded “I did. We did. We did provide a 13B (sic) financial statement to Mr. Dart…”
10. 102014 ONCA 784, at para. 4.
11. 11Mattina v. Mattina, 2018 ONCA 867.
12. 122018 ONCA 840, 143 O.R. (3d) 519, at para. 4 (Beaver).
13. 13(2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), at para. 24.
14. 14Miziolek v. Miziolek, 2018 ONSC 4372, at para. 32.
15. 15F. (H.) v. H. (M.), 2014 ONCJ 526, at para. 7. See also Beaver, at para. 15.
16. 16R.S.O. 1990, c. C. 43.