Piper v. Piper, 2018 NSCA 53

Nova Scotia Court of Appeal Citation: Piper v. Piper , 2018 NSCA 53 Date: 20180620 Docket: CA 462301 Registry: Halifax Between: Wendy Joanne Piper Appellant v. Robert Kevin Piper Respondent Judge: The Honourable Justice Elizabeth Van den Eynden Appeal Heard: November 28, 2017, in Halifax, Nova Scotia Subject: Contract law; binding agreement

Summary: In the court below, Mr. Piper brought a preliminary motion seeking to enforce settlement terms he said were binding upon the parties. The purported agreed terms were contained in multiple communications which the parties set about to express in a consent Corollary Relief Order (CRO). However, during this process, a dispute arose over the division of Mr. Piper’s pension benefits. The draft CRO was never signed. Ms. Piper said the draft CRO did not reflect their prior agreement. Mr. Piper said it did.

In determining whether there was a binding agreement, the judge restricted her analysis to the disputed CRO, which, standing alone, she found to be clear and unambiguous, and looked no further to interpret its meaning. There was no proper analysis of the communications said to contain the agreed terms. Issues: Did the judge err in finding that the parties had reached a binding agreement, reflected in the unsigned draft Corollary Relief Order? Result: The judge erred in restricting her analysis to the disputed draft CRO.

The task before her was to determine: (1) whether the parties entered into a legally binding agreement, and (2) if yes, how it should be interpreted. She could not perform this task by only looking at the disputed CRO. By doing so, she erred in principle. Appeal allowed and matter remitted for determination before another judge. No costs were awarded. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 25 pages. Nova Scotia Court of Appeal Citation: Piper v.

Piper , 2018 NSCA 53 Date: 20180620 Docket: CA 462301 Registry: Halifax Between: Wendy Joanne Piper Appellant

v. Robert Kevin Piper Respondent Judges: Van den Eynden, Hamilton and Scanlan, JJ.A. Appeal Heard: November 28, 2017, in Halifax, Nova Scotia Held: Appeal allowed, per reasons for judgment of Van den Eynden, J.A.; Hamilton and Scanlan, JJ.A. concurring Counsel: M. Jean Beeler, Q.C. with Alicia Landry, for the appellant Kim Johnson, for the respondent Reasons for judgment: Overview [ 1 ] The parties are engaged in a dispute over the division of pre-cohabitation pension benefits earned by Mr. Piper. His pension was the most significant matrimonial asset.

The value of his pre-cohabitation contributions is in the range of $90,000.00 which represents approximately one-fifth of its full value. The perplexing question is whether the parties reached a binding settlement agreement, and, if so, what were the agreed terms. [ 2 ] A contested divorce trial was scheduled in the court below. Leading up to the trial date, there was a flurry of communications between counsel attempting to resolve all the outstanding issues arising from the breakdown of the Pipers’ marriage.

Just days before the trial, communications between counsel seemed to confirm that an agreement had been reached. Counsel advised the judge that was the case and trial dates could be released; however, the parties still hoped to briefly appear at the scheduled start time to present a consent corollary relief order and obtain a divorce order. Matters did not unfold that way. [ 3 ] When counsel set about to reduce the purported agreed terms contained in their respective letters, email exchanges, and discussions to a draft Corollary Relief Order (CRO), a serious disagreement arose over the division of Mr.

Piper’s pension benefits, which was an essential term. The draft CRO was never signed. [ 4 ] Ms. Piper took the position that the draft CRO did not reflect their prior agreement to divide all Mr. Piper’s pension benefits. The parties were negotiating settlement on a global basis meaning there had to be settlement of all issues or there was no settlement at all. Counsel advised the judge of the complications and that a settlement may not be forthcoming after all. New trial dates were assigned. [ 5 ] In the intervening period, neither party claimed that a binding agreement had been reached.

Just days prior to the scheduled contested hearing, Mr. Piper adopted the position that a binding prior agreement had been reached which excluded his pre-cohabitation pension benefits. The divorce trial was adjourned once again, and a new date was set to argue the preliminary motion of whether there was a binding agreement as alleged by Mr. Piper. [ 6 ] The judge assigned to hear the divorce trial and motion was Justice Cindy G. Cormier.

Although there are confusing references to the record in her oral decision, in the end, she restricted her analysis to the four corners of the disputed CRO, which, standing alone, she found to be clear and unambiguous, and looked no further to interpret its meaning. However, the actual terms of the purported agreement were contained in multiple communications between counsel which pre-dated the drafting of the CRO. To further complicate matters, various crystallization dates were put forward, the resolution of which would impact the assessment of any agreed terms.

The judge did not determine when any agreement crystalized. She relied on the face of the unsigned draft CRO. There was no proper analysis of the communications said to contain the agreed terms and thus no consideration of whether the disputed CRO reflected the purported agreement documented in the communications between counsel. [ 7 ] In my view, the judge erred in restricting her focus to the four corners of the unsigned draft CRO. The task before her was to determine: (

i) did the parties enter into a legally binding agreement, and (ii) if yes, how should it be interpreted. She could not perform this task by only looking at the disputed CRO. By doing so, she erred. [ 8 ] Unfortunately, the record and submissions do not equip this Court to make the ultimate finding on whether an agreement was reached and, if so, what it might be. I would allow the appeal and remit the matter for determination. My reasons follow. Issue [ 9 ] The issues raised on appeal can be refined to: Did the judge err in finding that the parties had reached a binding agreement reflected in the unsigned draft Corollary Relief Order?

Background [ 10 ] This case has some complicating factors. The argument advanced by the appellant (Ms. Piper) on appeal as to whether there was a binding agreement is a complete reversal of what she argued in the court below. Further, several additional arguments on appeal were not put to the judge. Ms. Piper has different counsel on appeal. [ 11 ] In the court below, Ms. Piper’s primary position was that there was no meeting of the minds (agreement) on the issue of pension division—as this was an essential term there was no binding agreement between the parties.

On appeal, she asserts there was a binding agreement and a mistake occurred in reducing that aspect of the agreement into a proper form, being the CRO. Ms. Piper’s articulation of the mistake and related available remedies was far from precise. [ 12 ] As I set out the background, it will become evident that stringing together the record to determine whether or when an agreement was reached is no simple task. The shifting positions respecting possible crystallization dates makes the task more challenging. Although Ms.

Piper reversed her position on appeal and now claims there was a binding agreement which the disputed CRO does not reflect, when one examines the record, it is understandable why she is advancing a different claim. [ 13 ] I will now set out the history of what led the parties to this appeal. To understand why the judge’s reliance on the disputed and unsigned draft CRO to discern the parties’ objective intentions was problematic, it is necessary to review the background in some detail. [ 14 ] The parties began living together in September 1993. They married on May 11, 1996 and separated on February 7, 2014.

They have two children, ages 18 and 21. Ms. Piper filed a Petition for Divorce in August 2015. Mr. Piper filed an Answer in September 2015. [ 15 ] There were many issues in dispute arising from the breakdown of their marriage. These included parenting arrangements, child and spousal support, and the division of property. [ 16 ] Mr. Piper has been employed with the same employer since 1989. His pension benefits, accrued between February 19, 1989 and September 1, 1993, are in dispute. Although the parties had other assets, Mr. Piper’s pension was the most valuable asset by far. [ 17 ] Ms.

Piper said that she accumulated pension benefits both prior to and during her cohabitation with Mr. Piper. Her total benefits were considerably less than his. Ms. Piper indicated that her pension, including her pre-cohabitation benefits, was to be divided between the parties as part of the purported agreed terms. [ 18 ] Both Mr. Piper and Ms. Piper were represented by experienced lawyers during their settlement negotiations. Janet Stevenson was counsel for Ms. Piper. Kim Johnson was Mr.

Piper’s counsel, save for some brief periods when he was self-represented. [ 19 ] There is nothing in the record which expressly states that the parties agreed Mr. Piper’s pre-cohabitation pension benefits were on or off the table. [ 20 ] Throughout their extensive negotiations, both parties ascribed the same value to Mr. Piper’s pension—that being $503,306. That was consistent with the value reflected in each of the parties’ Statements of Property filed and exchanged in 2015 and 2016. A portion of Mr. Piper’s pension statement was appended to each Statement of Property.

It confirmed that the value of his defined contribution pension plan was $503,305.73 as at March 31, 2014. [ 21 ] The pension statement Mr. Piper disclosed in his 2015 Statement of Property did not break out any pension value pre- or post- cohabitation, but it did include the date he joined the plan—February 19, 1989, which was about 3.5 years before cohabitation with Ms. Piper. He disclosed two pages of a seven-page statement. The first page provided the pension value as at March 31, 2014 and the gains or losses over the prior year. The statement showed a gain of $85,317.34. The date Mr.

Piper joined the plan was on page two. [ 22 ] The parties attended a settlement conference in January 2016. Property division was one of the unresolved issues at that time. In the settlement materials they exchanged and provided to the settlement judge, Mr. Piper’s pension was valued at $503,306. Counsel for each party prepared a draft asset division chart—it contained a proposal to divide the pension equally, at source. There was no mention of excluding pre-cohabitation benefits. The parties did not settle their dispute, and trial dates were set for June 6 and 7, 2016.

After the unsuccessful settlement conference, the parties continued to negotiate. Multiple settlement offers were exchanged. [ 23 ] Mr. Piper filed his updated Statement of Property in March 2016. He ascribed the same value to his pension, and only appended page one of his 2014 pension statement—which did not reference the date he joined the pension plan. Ms. Piper noted the stale date of the pension statement. Ms. Piper indicated that not having the current pension valuation was not a concern to her because she understood that Mr.

Piper’s full pension would be divided at source as of the date of separation, thus the actual value would be determined at the time of division regardless of what was on the pension statement. [ 24 ] In all the back and forth negotiations, both parties consistently included a line item in the offers that Mr. Piper’s pension would be divided at source. Although the word “equally” was not used in every communication, that would appear to have been understood, as both counsel had used that language and nothing to the contrary was ever indicated.

The parties were back and forth on the division of the remaining assets and what the equalization payment should be. Spousal and child support were also in issue. [ 25 ] During negotiations, the division of Mr. Piper’s pension, as a standalone item, was never controversial. For example, on February 26, 2016, Ms. Johnson wrote to Ms. Stevenson setting out Mr. Piper’s settlement offer. Under the heading “Division of Assets” the offer included: “ Mr.

Piper would retain the house and cottage and all other assets in his possession, with the exception of his pension, which would be divided equally . [. . .]” On April 7, 2016, Ms. Stevenson countered on behalf of Ms. Piper and her response also included dividing the pension at source. Once again, there was no mention of segregating Mr. Piper’s pre-cohabitation pension benefits.

Further, since both parties had always proposed the pension be divided at source, it was not factored into the back and forth equalization calculations for the remaining assets and debts. [ 26 ] As the trial dates got close, settlement negotiations ramped up. On May 29, 2016, Ms. Stevenson put forward a final offer.

There were only a few outstanding items. Respecting the division of property Ms. Stevenson said: Ms. Piper will accept payment of the $50,000 to resolve property issues. Mr. Piper will retain the matrimonial home and cottage and all debt in the parties joint names, each will retain all debt and assets in their name alone except Mr. Piper’s pension which shall be divided at source. At this point, it is apparent in the communications exchanged between counsel, that the lump sum payment had been an outstanding issue, plus a few dangling issues related to support. [ 27 ] Ms. Johnson responded on May 30.

She sent an email to Ms. Stevenson and attached a letter containing Mr. Piper’s settlement position, indicating it would be good for counsel to talk. In her letter, Ms. Johnson acknowledged the parties were very close to resolving all issues; however, Mr. Piper still wanted a few tweaks. The division of property was not one of them. In her letter, Ms. Johnson first confirmed the exact proposed division of property as noted in ¶ 26. There was no mention of excluding any portion of Mr. Piper’s pension benefits. Next, Ms. Johnson set out the support and s. 7 adjustments Mr.

Piper was seeking. [ 28 ] The record contains numerous emails between counsel on May 30 and June 1, 2016. Without exception, in every communication, both counsel confirmed the division of property is as “Agreed”. They then went on to haggle over some finer points on support issues and s. 7 expenses for the children. Finally, on June 1 at 3:09 p.m., Ms. Johnson sent this email to Ms. Stevenson: “He will split drivers ed.

We are done. ☺”. [ 29 ] On June 1, counsel advised the trial judge that the parties reached agreement and would be appearing on June 6 to have a consent CRO issued and a divorce order granted. [ 30 ] Returning to May 30, 2016, Ms. Johnson and Ms. Stevenson also spoke on the phone that day. It is obvious from the emails that followed they talked about the remaining issues that needed to be resolved. During this phone conversation, Ms. Stevenson raised the point that she was still awaiting information from Ms. Johnson respecting the required documentation to divide Mr. Piper’s pension. Ms.

Johnson did not have the requested information and suggested that they use “general language” for the division of the pension— which Ms. Stevenson took to mean reference to cohabitation dates. In putting forth the use of “general language”, Ms. Johnson never suggested that would mean not all of Mr. Piper’s pension would be divided at source. [ 31 ] Ms. Stevenson undertook to prepare the draft CRO. She sent a draft to Ms. Johnson on June 3. Over the next few days, both parties suggested changes to the draft form of the CRO.

They included clauses not previously sorted out such as life insurance and benefit plan coverage, timing of payout, and registration with the Maintenance Enforcement Program to mention a few. Most of these appear to have been resolved, and, on June 5, in responding to some additional language tweaks requested by Ms. Johnson, Ms. Stevenson stated in a reply email “Sure”. Although the email said “Sure” to the requested changes, there is nothing in the record that indicates no further changes would/could be suggested by either side. Later, I will address Mr.

Piper’s reliance on the “Sure” response. [ 32 ] On June 5, after the “Sure” response, Ms. Piper identified further changes—most importantly to the draft language respecting the division of pension benefits at source. Up until this point, the draft language in the draft CRO said: 15. Robert Kevin Piper’s pension with Halifax Port I.L.A. and identified as Registered Pension Plan (GA 70063-3) for the cohabitation period of September 1, 1993 until February 7, 2014 shall be divided equally between the parties.

A copy of this order shall be provided to the administrator of the pension plan by counsel for the respondent. The parties shall cooperate to complete expeditiously all necessary documents to effect the division of the pension. In the event any further order is required to effect the division of the pension, either party may apply. [ 33 ] Ms. Piper was initially confused as to how the proposed language could capture all Mr. Piper’s pension benefits since the clause only referenced their period of cohabitation. Ms. Piper and Ms. Stevenson discussed the matter again on June 5.

At this point, despite prior disclosure of the date, Ms. Stevenson stated that this is when she first realized that Mr. Piper had joined the pension plan prior to cohabitation, and that the draft language was deficient in capturing the division of all Mr. Piper’s pension benefits. She promptly set about clarifying this language. Ms. Stevenson stated that she did not anticipate opposition in amending the language in the draft CRO. The other change Ms. Piper sought was to amend the timing of the equalization payment. [ 34 ] Ms. Stevenson revised the pension language in the draft CRO and sent it to Ms.

Johnson around 9:00 a.m. on June 6. Ms. Stevenson was uncertain if the plan permitted pre-cohabitation benefits to also be divided at source. She revised the language to reflect that all benefits from the date Mr. Piper joined the plan to the date of separation were to be divided equally. Ms. Stevenson explained in her June 6 email to Ms.

Johnson, which attached the revised draft CRO, that if division at source was not permitted for the pre- cohabitation portion of the pension they would have it valued, and once the missing information was received from the plan administrator, they could then resolve how to effect a division. Ms. Stevenson’s email was as follows: The changes you requested to child support have been made. Regarding the payment of the equalization payment, we discussed putting in a deadline to ensure the parties did not have a dispute regarding when it was to be paid, which I think is a good idea.

I had suggested 90 days but had not received Joanne’s instructions. To meet the needs of both parties and ensure that there is sufficient time for Mr. Piper, I have put 60 days in the order. Mr. Piper was with the ILA prior to the parties’ cohabitation. As it is unknown whether he contributed to a pension at that time, I have changed the language in paragraph 15.

I realize that the pension plan may not provide a provision more than the cohabitation period but if it does not it should be able to value the pre-cohabitation period so that can be resolved when we get more information. (Monday, June 6, 2016 9:01 am) [ 35 ] The revised draft contained the following pension division language:

15. Robert Kevin Piper’s pension with Halifax Port I.L.A. and identified as Registered Pension Plan (GA 70063-3) for the period prior to cohabitation and the cohabitation period of September 1, 1993 until February 7, 2014 shall be divided equally between the parties. A copy of this order shall be provided to the administrator of the pension plan by counsel for the respondent. The parties shall cooperate to complete expeditiously all necessary documents to effect the division of the pension.

In the event any further order is required to effect the division of the pension, either party may apply. [ 36 ] Counsel had hoped to attend court at 2:00 p.m. that day to present a consent CRO and obtain the divorce order; however, Ms. Johnson informed Ms. Stevenson by email at 12:20 p.m. that she did not have instructions to agree to the change in pension division language. Counsel continued to exchange emails trying to resolve the matter but that did not happen. Part of the problem was the value of Mr.

Piper’s pre-cohabitation pension was unknown—all the parties ever had was the value of his full pension, as no other value had been identified or discussed, during negotiations. [ 37 ] Both counsel appeared at the appointed time and informed the trial judge of the complications. Although they still hoped to present a consent CRO for approval by the court, they noted that may no longer be the case. It wasn’t, and later in June the parties obtained new trial dates for January 4 and 5, 2017. [ 38 ] There is no evidence that either party acted on the material terms in the disputed draft CRO.

For example, there was no evidence of: property transfer, payment of spousal or child support pursuant to the terms of the alleged agreement, payout of the equalization payment to Ms. Piper, nor any steps taken to remove Ms. Piper from the joint debts. Furthermore, between June 6, 2016 and December 28, 2016, there was no hint from either party that a binding agreement had been entered into. [ 39 ] In preparation for the contested hearing in January, Ms. Piper filed her updated affidavit and statements on December 12, 2016. Mr. Piper filed his affidavit on December 28, 2018.

For the first time, he asserted that a binding agreement was entered into on June 5, 2016 as reflected in the draft CRO that contained the pension division language favorable to him. [ 40 ] Ms. Johnson filed her pre-hearing memorandum on January 3, 2017. It contained a short submission in support of there being a binding agreement, but stated the agreement was reached on June 2, 2016. That was prior to receipt of the controversial draft CRO. Other than the filing of Mr. Piper’s affidavit and Ms. Johnson’s brief, Ms. Johnson never informed Ms. Stevenson that either she or Mr.

Piper thought there had been a binding agreement. It is evident from the transcript of the appearance before Justice Cormier on January 4, 2017, Ms. Stevenson and Ms. Piper were blindsided by this late development. [ 41 ] Mr. Piper asked to have the preliminary issue of whether there was a binding agreement determined first. Given the lateness of this development being sprung upon Ms. Piper, the trial dates were lost, and Mr. Piper’s preliminary motion was set to be heard on March 10, 2017. Whether a trial went ahead would be dependant on the outcome of the motion. The judge directed Mr.

Piper to file a motion and an updated Statement of Property. [ 42 ] Up until this point, Mr. Piper never disclosed, although requested, the value of his pre-cohabitation pension benefits. Shortly after matters went sideways on June 6, 2016, he provided the amount of his personal contributions, not the value of his accrued pre- cohabitation pension benefits. This is the detail he provided: Year Hours Contribution 1990 2,242 $3,500 1991 1,884 $2,780 1992 1,305 $2,880 1993 1,476 $3,400 It did not include the employer’s contributions nor growth. [ 43 ] Mr.

Piper filed his updated Statement of Property on January 13, 2017. Appended to it was a letter addressed to Mr. Piper, dated December 12, 2016, from the pension plan administrator, Mercer (Canada) Limited. The copy of the letter does not appear to be complete, as there is no signature page; however, it contained estimates of the long-awaited information on pre-cohabitation value. Counsel for Ms. Piper pointed out that it appears Mr. Piper took the position that a prior binding agreement had been made which excluded these benefits, after he received this letter. [ 44 ] Mr.

Piper’s pension funds are locked-in and fully invested. Sun Life Financial manages his investment portfolio, and the gains or loses, as the case may be, year-over-year, are impacted by the market. The above letter from Mercer estimated the value of his pension benefits accrued from February 19, 1989 (the day Mr. Piper joined the plan) to January 31, 2014 at $476,000. The estimated value from October 1, 1993 to January 31, 2014 was $386,000.

Although, these valuation dates do not match the actual date of separation and commencement of cohabitation, it still provides an estimate of the benefits at stake in this dispute—approximately $90,000. [ 45 ] Ms. Stevenson stepped aside as counsel for Ms. Piper during the motion. Kenzie MacKinnon, Q.C. stepped in as counsel for Ms. Piper. Ms. Stevenson filed a detailed affidavit on February 21, 2017. It set out the history of the negotiations between the parties, the evolution of the draft unsigned CRO, and ongoing negotiations between the parties right up to January 12, 2017.

Appended to her affidavit were numerous settlement communications between counsel. [ 46 ] Ms. Piper filed an affidavit in response to the motion. Mr. Piper relied on his December 28, 2016 affidavit. He did not file any rebuttal affidavit to that of Ms. Stevenson or Ms. Piper. Neither Ms. Piper nor Mr. Piper were cross-examined. [ 47 ] Ms. Johnson did not file an affidavit. She continued to represent Mr. Piper. Cross-examination of Ms. Stevenson was waived. At the commencement of the hearing, Ms. Johnson asked Mr. MacKinnon to agree that the date Mr.

Piper joined the plan was contained in the pension statement appended to his 2015 Statement of Property. That was agreed. [ 48 ] No viva voce evidence was called. Counsel filed pre-hearing submissions and since they were relying on the filed materials,

counsel only made oral arguments on March 10, 2017. After a brief adjournment, the judge provided an oral decision which is unreported. Before addressing the submissions and the judge’s decision, there are some aspects of the affidavit evidence to set out. [ 49 ] In her affidavit, Ms. Stevenson said this about her interactions with Ms. Johnson on June 6, 2016: 26. … at no time during our extensive negotiations had there been any discussion regarding when he had joined the plan. 27. I anticipated that this would not be an issue as throughout our negotiations both parties had proposed equal division of Mr.

Piper’s pension, not just the pension earned during the cohabitation period. 28. I revised the CRO and incorporated language that I hoped would deal with the situation; Ms. Johnson contacted me to inform me that she did not have instructions to agree to these changes. 29. We subsequently had a telephone call to discuss how we should proceed as we were scheduled to be in court that afternoon to get the parties divorced. 30. During the telephone call I explained to Ms. Johnson that I did not know that Mr. Piper had joined the plan prior to the parties’ cohabitation. 31. During our telephone call Ms.

Johnson mentioned that the issue of the pension was a mutual mistake and we discussed in general what we would inform the judge as we no longer had settlement. 32. We also discussed whether Ms. Piper would accept division of the pension based only on the cohabitation period; I contacted Ms. Piper but could not even make a recommendation to her as I had no idea the value of the pre-cohabitation period of Mr. Piper’s pension. 33. I followed up with Ms. Johnson to see if she had an updated pension statement to provide more financial information to Ms. Piper and to let Ms. Johnson know that I had spoken to Ms.

Piper; my email to Ms. Johnson is attached as exhibit “G”. 34. At no time did Ms. Johnson suggest that Ms. Piper had agreed to a division of only the cohabitation period of Mr. Piper’s pension; to the contrary we were both trying to see if there was a workable solution. [Emphasis added] [ 50 ] Ms. Stevenson also addressed how Ms. Johnson’s suggestion for draft pension division language arose. She said: 17. Ms.

Johnson and I did speak by telephone that day [May 30, 2016]; I believe it was during this phone call that I reminded her that I had requested information from her on what documentation was necessary to divide Mr. Piper’s pension. 18. Ms. Johnson did not have particular information relevant to the division of Mr.

Piper’s pension and suggested that we use general language for the division of the pension, i.e. that the pension earned during the marriage with dates, etc. be provided and that if a further order was required, either party may apply. [ 51 ] Apart from the statement of there being a “mutual mistake” attributed to Ms. Johnson, in ¶ 31 of Ms. Stevenson’s affidavit, there is no evidence of what Ms. Johnson knew at critical times. It is unknown whether Ms. Johnson was live to the fact Mr.

Piper had joined the plan prior to cohabitation or the value of the disputed portion, during: (1) negotiations, or, (2) when she suggested they use “general pension division language” in the draft CRO. If Ms. Johnson was aware, there is no evidence that she ever mentioned it to Ms. Stevenson. [ 52 ] When learning of the alleged binding agreement just prior to trial, Ms. Stevenson said: 41. I was completely taken aback to receive Mr. Piper’s affidavit of December 23, 2016; [ filed the 28 th ] at no time had Ms. Johnson informed me that it was their position a binding settlement had been reached . 42.

At no time did I receive instructions from Ms. Piper that she was willing to give up any portion of Mr. Piper’s pension. [Emphasis added] [ 53 ] Ms. Stevenson’s affidavit evidence was not contradicted, at least not in any material manner. [ 54 ] Ms. Piper deposed that: 4. I have reviewed the affidavit of the respondent, Kevin Piper (“Kevin”), of December 23, 2016 and all of the documentation regarding negotiations that have taken place in my divorce proceeding. 5.

Throughout the negotiations, both Kevin’s lawyer and my lawyer, Janet Stevenson, referred to the division of Kevin’s pension and it was my understanding that I was entitled to one-half of the full pension value. 6. The first time that I saw the provision in the CRO regarding the division of Kevin’s pension, I was confused and could not understand why one-half of the value of Kevin’s pension was not in the order. 7. Ms. Stevenson and I discussed it but I remain concerned. 8. It was only when I reviewed the second draft of the CRO that I realized Ms.

Stevenson did not know that Kevin had joined the pension plan prior to our cohabitation; I contacted her right away to let her know.

9. At no time did I agree to the division of only the cohabitation portion of Kevin’s pension; if this had been discussed I would have pointed out that ten years of my pension earned with RBC had been earned prior to our cohabitation. 10. My pension from RBC appears in the chart of assets and debts as the LIRA. [ 55 ] In his affidavit Mr. Piper states: 5. In every draft of the Corollary Relief Order (which was drafted by counsel for Joanne), it provided for the division of my pension from the date of cohabitation to the date of separation. This was always my understanding of our agreement. 6.

As can be seen from the correspondence in Exhibit 1, a complete agreement on all terms was reached on June 5, 2016. The court was advised of our agreement and we intended to appear and finalize the divorce. 7. On June 6, 2016, for the first time, counsel for Joanne raised the issue of dividing my pre-marital pension. She also wanted to shorten the time line for re-finance from the 90 days that was agreed to on June 2, 2016. 8. We appeared in court on June 6, 2016.

I am advised and do verily believe that the judge was told that an issue had arisen and information about my pre-marital pension would be provided, and hopefully documents would be provided shortly. 9. My wife’s lawyer subsequently received and provided confirmation that my pre-marital pension “could” be divided at source. However, we had already agreed that it would not be. We both made many concessions as part of the negotiation of the agreement that was reached on June 5, 2016. [ 56 ] Although Mr.

Piper states in ¶ 5 of his affidavit that it was “always his understanding”, apart from the phone conversation between counsel on May 30, 2016 when Ms. Johnson suggested they use the “general language” in the CRO to divide the pension at source and that language finding its way into the draft CRO—there is no evidence in this record that counsel or their respective clients spoke a single word about keeping pre-cohabitation benefits off or on the table. And as noted, the only valuation disclosed, and which the parties referenced in their numerous settlement communications, was the full value as at March 31, 2014.

The parties’ separation date was February 7, 2014, and that available statement was the closest in time. [ 57 ] I turn to the submissions put to the judge on March 10, 2016. With respect, the arguments advanced on behalf of Ms. Piper were not always clear and were conflicting at times. That said, the core of her principal argument was clear—the parties, although very close, did not reach a binding agreement. Mr. MacKinnon referred to it as an “almost agreement”. The parties could not “close the loop”. Mr. MacKinnon acknowledged that Ms.

Stevenson was operating under the wrong premise—that all benefits were accumulated during the time the parties cohabitated and thus did not initially realize the language suggested by Ms. Johnson was problematic. He put forward his own assumption (as there was no evidence) that when counsel discussed the pension division language, Ms. Johnson knew there were pre-cohabitation benefits, and thus, counsel were thinking “two different things”, so there was no meeting of the minds. Yet, on the other hand, Mr.

MacKinnon contended that all the settlement discussions leading up to this point demonstrated a shared intention to divide the entire pension. At another point, Mr. MacKinnon suggested Ms. Stevenson made a unilateral mistake, while later stating the mistake was mutual. Notwithstanding these and other confusing references, the ultimate submission to the judge was there was no binding agreement. In the alternative, if there was one, it would be unjust to enforce it in these circumstances. [ 58 ] Mr. Piper argued there was a binding agreement. Just when that alleged agreement crystalized seemed to be fluid.

He noted the pension division language to be used in the CRO was discussed between counsel, that language was then reflected in the draft CRO, he accepted that language and, thus, those terms are binding. If there was any mistake made, Ms. Stevenson made the mistake, and any remedy Ms. Piper had was against Ms. Stevenson. In the written submissions to the judge, Ms.

Johnson wrote this: It is our respectful submission that the parties reached a binding settlement at 3:30 p.m. on June 2, 2016, which resolved all out standing matters. [ . . . ] In our submission, all of the terms agreed to were clear and in writing between counsel in the exchange of emails up to and including June 2, 2016 at 3:30 p.m. [ 59 ] In oral submissions, she made this argument to the judge: [ . . . ] An agreement was reached on all points, including the exact words to be put into the order, as of June 5, 2016 at 4:11 p.m.

There was an order that was drafted, there were, I believe I want to say three e-mails after that adjusting the wording, and at 4:11 p.m. on Sunday, June 5th, Ms. Stevenson e-mails back: Sure. She did not say, Sure, subject to getting instructions. She did not say, Sure, just let me check with my client and I’ll get back to you in the morning. She did not say there are restrictions on my authority to settle but I’m prepared to recommend it.

She didn’t give any restrictions and she had apparent authority to settle and with apparent authority to settle, she bound her client, [ . . . ] [ . . . ] [ . . . ] Counsel reached an agreement and the terms were clear and unambiguous. [ 60 ] Mr. Piper urged the judge to look no further than the draft CRO to ascertain the agreement between the parties. Counsel for Mr. Piper put it this way: Now, Ms.

Stevenson’s additional evidence in her affidavit and in her client’s affidavit do talk about beliefs and intentions and understandings but all of the case law that was just put before Your Lordship [ sic ] by my friend as well as the case law that I relied on says that that doesn’t matter. All that matters is what was communicated and what was communicated was what was in the draft order.

[ . . . ] So if the document is clear and the words of the document are clear, and a reasonable objective person can understand what the terms of the agreement are, that agreement, we submit, must be upheld. And in this case, we submit it is clear. Regardless of what Ms. Stevenson and Ms. Piper now say they thought or believed or understood, no reasonable person reading paragraph 15 of the corollary relief order, we submit, could doubt its meaning. It very clearly says that the pension will be divided from a particular date to a particular date. It was in the draft that Ms. Stevenson prepared. Ms.

Stevenson’s own affidavit confirms that that was the wording counsel had been discussing before that. That’s what it said and Ms. Stevenson, with 17 years of practice experience at that time, knew or ought to be presumed to know what that paragraph meant. [ 61 ] As I will explain later in my analysis, the difficulty with this position is that the terms of the purported agreement are said to be contained in the various communication between counsel prior to the drafting of the disputed CRO. [ 62 ] Ms. Piper filed her Notice of Appeal on April 7, 2017.

She requested this relief: The appellant says that the court should allow the appeal and that the judgment appealed from be varied and that the court order an equal division of Mr. Piper’s pension as between the parties.

In the alternative, the appellant says that the court should allow the appeal and that the judgment appealed from be set aside and that the proceeding be returned to the Supreme Court (Family Division) for trial. [ 63 ] The way the parties and the judge addressed the order arising from her oral decision delivered on March 10, 2017 was through the issuance of a CRO, the one she found to be binding upon the parties. It was consented “as to form only” by Ms. Piper, and contained these recitals: The parties were scheduled for a divorce trial on January 4 and January 5, 2017.

The respondent, Robert Kevin Piper, filed a motion pursuant to Civil Procedure Rule 10.04 alleging that the parties had an agreement that was enforceable. The motion was head [ sic ] and an oral decision was issued on March 10, 2017 that the parties had an agreement that was enforceable. This proceeding is before the court following the oral decision of March 10, 2017. [ 64 ] The CRO was initialled by Justice Cormier and issued on June 16, 2017.

Standard of Review [ 65 ] In determining whether the parties entered into a binding agreement or just an unenforceable agreement to agree, the judge must apply the proper legal framework to that task. A failure to do so will result in an error of law reviewable on the standard of correctness (see Gwynne-Timothy v. McPhee , 2005 NSCA 80 , ¶ 33 ).

Analysis [ 66 ] I start by summarizing what the judge decided and upon what basis. [ 67 ] Although there are several passages in the judge’s decision where she mentioned some of the evidence that was before her, reading her decision as a whole, I am satisfied that in determining whether there was a binding agreement, she restricted her analysis to the disputed draft CRO. Mr. Piper advanced the argument that on its face, the draft CRO was clear and unambiguous—there was no reason or cause to look outside it.

Acceptance of that submission is evident in the judge’s decision. [ 68 ] In examining the content of the disputed draft CRO, the judge stated that from Mr. Piper’s perspective, “that was the offer being made”. She said that the word “cohabitation” is not ambiguous, and “even if it were, the date is there”, meaning the cohabitation dates. Also, “… that it would be expected by someone looking at these documents that Mr. Piper should be permitted to rely upon the stated draft order to consider what his position was.” She found that Mr.

Piper was entitled to rely on that aspect (pension division language) of the CRO, as it “was the proposal being put forth, and he accepted it.” Later, I will explain the concerns raised with the judge’s viewing of the draft CRO as an “offer being made”. But for now, I set out her reasoning for relying on the CRO and not looking outside its four corners. [ 69 ] The judge reasoned: Well, from the perspective of the Court, Ms. Piper, Mr. Piper would have understood . . . He would have . . . in his mind, he’s permitted to rely on the fact that that’s the offer you were making.

You were making a different offer with respect to his pension because that’s what the document, the clear reading, the objective person would see on the document that was filed by Ms. Stevenson. In other words, there is really no other way of reading that corollary relief order, the first one, which was sent out and which I find there was agreement to. [ . . . ] There is no ambiguity in this case. The record is clear. That was the order. If the plain wording of the document reveals a clear an unambiguous intent it is not necessary to go further.

Indeed, once that has been done, it may not be possible to have recourse outside such document, either to other written material or to parol evidence from the parties or anyone else in order to explain or otherwise clarify what is contained in the document. I find that there is no ambiguity with respect to what … objectively, what that meant on a clear reading of the document, the initial … the draft CRO that Mr. Piper relied upon.

[ 70 ] The judge said: It’s too bad a chart wasn’t provided,” and that “the chart indicates over 500,000 in pension income for him in the Statements of Property, perhaps. But that’s not the test. I don’t go behind … I can’t go behind that. I have to look at the plain reading of the document that says that’s what they came to an agreement about.

For whatever reason, people decide to make concessions during settlements, and that could have been … or you know, and I can’t read into people’s minds behind that. [ 71 ] The judge concluded her reasons by again referring to the fact that she cannot go behind the terms of the agreement. She stated: It’s not the place of this court, when there is an agreement – apparent, clear, unambiguous agreement – that can be determined objectively from the record and from the documents provided to me .

It’s not my place to say that that agreement is not binding on the parties, and I find that the agreement is binding on the parties. [Emphasis added] [ 72 ] On appeal, the respondent acknowledged that the judge adopted a restricted view and relied on the face of the disputed CRO. In his factum it was put this way: Justice Cormier did not misdirect herself with respect to surrounding circumstances. She simply found that the agreement was clear and unambiguous, and thus there was no need to look further to determine the “real” intentions of the parties.

The “real” intensions [ sic ] were irrelevant where the document was clear on its face as to objective intensions [ sic ]. [ 73 ] The judge made no determination as to the date the agreement was made. The dates put before her, even by Mr. Piper, were not consistent. The parties never asserted that the draft CRO was any type of new offer—rather, the CRO was to reflect the terms that the parties had purportedly agreed upon earlier.

These terms could only be found by an examination of the numerous exchanges between counsel right up until just before they appeared in court on June 6, 2016. [ 74 ] In my view, the case put before the judge required a proper analysis of the communications said to contain the agreed terms. That did not occur. Given the fast-moving and numerous communications between counsel, one could not conclude whether, and if so when, the parties came to an agreement without doing such an analysis. [ 75 ] I will now summarize the parties’ respective positions on appeal, starting with Mr. Piper. Mr. Piper’s position [ 76 ] Mr.

Piper’s arguments on appeal closely mirror his arguments in the lower court; however, the dates put forward as to crystallization shift somewhat. He continues to argue that the draft CRO reflects a clear agreement or meeting of the minds that the pension would be divided from the date of cohabitation to the date of separation. That draft was prepared by Ms. Piper’s counsel, so he says he was entitled to accept and rely on it, and he did.

With respect to interpreting the document, he submits, as he did in the court below, that the intentions of the parties are irrelevant where the document is clear on its face as to objective intentions. He says as there is no ambiguity in the wording of the document, parol evidence should not be admitted to aid

interpretation. [ 77 ] He claims this is not a case of mutual mistake; however, he was unable to identify anything in the record that would otherwise explain the evidence that his own lawyer said there was a mutual mistake. Mr. Piper goes on to argue that if there was a mistake, Ms. Piper cannot rely on it because there was no fraud or equivalent of fraud and no reasonable grounds for any mistaken belief. Mr. Piper says, any recourse Ms. Piper has is against Ms. Stevenson for her misunderstanding. Ms. Piper’s position [ 78 ] Contrary to the position advanced in the court below, on appeal Ms.

Piper now argues an agreement was reached. She says it was finalized on June 1, 2016 at 3:09 p.m. when Ms. Johnson sent the smiley face email (¶ 28). She states this communication did not explicitly or impliedly exclude the pre-cohabitation portion of Mr. Piper’s pension from division. She points to all the prior settlement communications—stating they demonstrate the parties’ consistent and shared intention to divide Mr. Piper’s full pension. She references Morash v.

Morash , 2004 NSCA 20 , for authority that pension benefits earned before and during marriage (subject to valuation date issues) are a matrimonial asset and presumptively subject to equal division, but for the operation of s. 13 of the Matrimonial Property Act . Based on this record, apart from mentioning s. 13 in his Answer to the Petition for Divorce, Mr. Piper never advanced any argument for an unequal division under that provision. [ 79 ] Ms. Piper claimed an error occurred when reducing the agreement to a proper form, in this case, a consent CRO. The draft CRO was not an offer of new terms, and Mr.

Piper knew or ought to have known the draft CRO contained an obvious error. She claims Mr. Piper breached his duty to bargain in good faith. With respect, the submissions put forward by Ms. Piper’s counsel on the alleged mistake were lacking. When asked several times during the appeal hearing to clarify exactly what type of error occurred and what were the scope of remedies, counsel’s answers remained unclear. [ 80 ] Ms. Piper also asserts the judge erred in limiting her analysis to the written terms of the draft CRO.

By doing so, she failed to consider relevant evidence of the surrounding circumstances and the objective intentions of the parties. Referring to the law set out in Sattva Capital Corp. v. Creston Moly Corp. , 2014 SCC 53 , it was put this way in her factum: [43] Justice Cormier committed an error of mixed fact and law when she misapprehended the law of contractual

interpretation. She misdirected herself when she stated: “If the plain wording of the document reveals a clear and unambiguous intent it is not necessary to go further. Indeed, once that has been done, it may not be possible to have recourse outside the document, either to other written material or to parol evidence from the parties anyone else in order to explain or otherwise clarify what is in the document.” This resulted in erroneous findings of fact and a misapplication of the law.

[ 81 ] I note that Sattva does not apply to determine whether a contract exists, but rather to interpret the terms of the contract. Had a proper review been conducted, and if it were determined that the parties had made a binding agreement, it would be open to the judge to interpret the agreement in accordance with the principles set out in Sattva .

As confirmed in Sattva , one can look to the factual matrix in interpreting the contract; the parol evidence rule does not apply to preclude evidence of the surrounding circumstances. [ 82 ] Turning to my analysis of how the judge erred, it is important to recognize that there is not “a” single document that can be referred to in deciding what the parties had manifested to each other—rather there are many. Mr. Piper’s own submissions confirm this. [ 83 ] I repeat his written submission to the judge. Mr.

Piper said: It is our respectful submission that the parties reached a binding settlement at 3:30 p.m. on June 2, 2016, which resolved all out standing matters. [ . . . ] In our submission, all of the terms agreed to were clear and in writing between counsel in the exchange of emails up to and including June 2, 2016 at 3:30 p.m. [ 84 ] He goes on to note, as he did on appeal, that on June 5, 2016 at 4:11 p.m. counsel for Ms. Piper allegedly agreed to some additional clarifying points in another email. Mr.

Piper did not receive any draft CRO until June 3, so he was not relying on any draft CRO when he said a final agreement was reached on June 2. [ 85 ] In The Law of Contract in Canada [1] , Fridman says this about what a court should examine when there is no single document between the parties, rather a series of negotiations: Sometimes it is a simple matter to decide what the parties have manifested to each other, and consequently, whether they have agreed, and if so, upon what. This is especially true where a document containing their agreement has been prepared and signed by the parties.

If the plain wording of the document reveals a clear and unambiguous intent, it is not necessary to go further. Indeed, once that has been done, it may not be possible to have recourse outside such document, either to other written material or to parol evidence from the parties or anyone else, in order to explain, or otherwise clarify what is contained in the document.

If there is no single document to which reference can be made in order to decide if a contract exists between the parties, but a series of negotiations, then everything that occurs between the parties relevant to the alleged contract must be considered by the court which is faced with the problem of deciding the issue.

From what they have said, done, or written, in combination if necessary, there must be established a bargain or an agreement . … In each instance the courts seek proof of an agreement between the parties involving the necessary exchange of acts and promises, promises and promises, or acts and acts. [Emphasis added] [ 86 ] With respect, the judge’s reasoning is hard to follow at times. It appears she conflated her determination of whether the parties entered into an agreement with whether the terms of the draft CRO, as a standalone document, were clear.

She found the draft CRO to contain terms which on their face had a clear meaning, and thus looked no further. However, the purported agreed terms that counsel where trying to capture in the draft CRO were actually contained in a multitude of communications between counsel. Given these circumstances, one cannot look at the draft CRO in isolation and then look no further. I am satisfied that is what the judge did, and she erred in doing so. [ 87 ] There is also a concern that the judge viewed the draft CRO as an offer which Mr. Piper could accept.

This concern is compounded by the fact the judge made no determination as to when any agreement was crystalized. I repeat her troubling language, which counsel for Mr. Piper conceded was problematic: So there’s no question that the date in and of itself was included as well, and from the perspective of Ms. Johnson’s client he would believe that that was the offer being made . [ . . . ] Well, from the perspective of the Court, Ms. Piper, Mr. Piper would have understood … He would have … in his mind, he’s permitted to rely on the fact that that’s the offer you were making .

I really have … as I said before, it’s an unfortunate circumstance if Ms. Piper didn’t understand it, but from the perspective of Mr. Piper, he was relying on that. He relied on the fact if he read it and if he understood - I presume he did because the date was there -and he understood that his pension started before then. That was the agreement.

That was the proposal being put forth, and he accepted it . [Emphasis added] [ 88 ] Because there were many, rather than a single document said to contain the agreement, in my view, the judge should have applied a two-step test: (1) did the parties enter a legally binding agreement; and (2) how should that agreement be interpreted? She did not do so. [ 89 ] Step one required a careful review of all the relevant communications to ascertain whether the parties entered into a legally binding agreement or an agreement to agree.

That exercise is a laborious task, however, it is unavoidable in these circumstances, and the judge erred in failing to do so. [ 90 ] In my view, having carefully reviewed the numerous communications between the parties said to contain an agreement (which communications literally continued right up until their brief court appearance on June 6, 2016) many questions arise. They include:

• What did the parties bargain for? The division of Mr. Piper’s full pension or something less? • Did they share a common continuous intention? • If so, did the draft CRO reflect these true intentions? Or was there an error in reducing them to writing? • If so, was the mistake common, mutual, unilateral? Did any mistake go to the root of the contract? What might the remedy be? • What did Ms. Johnson know about Mr. Piper’s pension when she suggested the language? Can anything be inferred from therecord? • Did Mr. Piper know of the mistake or ought he to have known?

Did he capitalize on a mistake? • Were there any unresolved material contractual terms? • Is there a lack of certainty? • Can/should the post conduct evidence be considered either as an interpretative aid or in determining whether this is a non-bindingagreement to agree? • If this is not an agreement to agree, on what date did the agreement crystalize?

What are the terms as of that date? [91] I am mindful of these principles set out in Sattva: [57] While the surrounding circumstances will be considered in interpreting the terms of a contract, they must never be allowed tooverwhelm the words of that agreement (Hayes Forest Services, at para. 14; and Hall, at p. 30). The goal of examining such evidence isto deepen a decision-maker’s understanding of the mutual and objective intentions of the parties as expressed in the words of thecontract. The

interpretation of a written contractual provision must always be grounded in the text and read in light of the entire contract(Hall, at pp. 15 and 30-32). While the surrounding circumstances are relied upon in the interpretive process, courts cannot use them todeviate from the text such that the court effectively creates a new agreement (Glaswegian Enterprises Inc. v. BC Tel Mobility CellularInc. (1997), (BC CA), 101 B.C.A.C. 62 (B.C. C.A.)). [92] This case is about whether there was a contract, not just about the

interpretation of a contract. Mr. Piper wished to rely on thetext of the draft CRO and argued that it was “the agreement” and any analysis of the factual matrix cannot overwhelm those words. As Ihave explained, the difficulty with this argument is that the terms are said to be contained in many communications. One cannot isolatethe analysis to the wrong document and then say it can’t be overwhelmed. The draft CRO was intended to capture the agreed terms, itwas not a new offer.

It remains to be seen, after a proper analysis, whether there was a binding agreement contained in the multiplecommunications between counsel and, if so, whether the disputed pension language captures or overwhelms the agreed terms. [93] I would allow the appeal on the basis that the judge erred in principle by restricting her focus to the one disputed documentbeing the draft CRO. As explained, in these circumstances, that amounted to a misdirection on the proper legal framework to be appliedwhen answering the question before her. It matters not that Ms. Piper reversed her argument on appeal.

The judge still had to conduct aproper analysis, and she did not. [94] On appeal, Ms. Piper requests this Court now find that an agreement was reached on June 1, 2016 where the parties agreed todivide the full pension and asks this Court to order rectification of the pension division terms set out in the CRO. I would decline todetermine that issue for several reasons. [95] First, that was not the argument in the court below. The evidence and submissions to the judge were built around an entirelydifferent argument being advanced by Ms.

Piper, which, understandably, likely impacted decisions on what evidence to present and whatwitnesses to cross-examine and/or subpoena. Second, there are many factual determinations to make. Just this one—when did anypurported agreement crystallize—will impact the

interpretation of agreed terms, if any. Also, resolution of some questions that may arisein a proper analysis might involve credibility findings, which this Court is not in the best position to make. Conclusion [96] I would allow the appeal, set aside the decision and remit for determination before another judge whether there was a bindingagreement and, if so, was it as stated in the draft CRO or otherwise. In these circumstances, I would decline to award costs. Van den Eynden, J.A. Concurred in: Hamilton, J.A. Scanlan, J.A.