Barber v. Barber, 2017 ONSC 2287

CITATION: Barber v. Barber, 2017 ONSC 2287 COURT FILE NO.: 36435/14 DATE: 20170412 SUPERIOR COURT OF JUSTICE - ONTARIO RE: KENNETH JOHN BARBER – and – LORNA ANN BARBER BEFORE: André J.

COUNSEL: John Paladino, for the Applicant Catherine Haber, for the Respondent HEARD: March 20, 2017, at Milton E N D O R S E M E N T [ 1 ] The respondent, Lorna Ann Barber, brings a motion for a final order incorporating the terms of settlement reached by the parties in November 2015. [ 2 ] The applicant, Kenneth John Barber, opposes the motion on the ground that the parties never agreed to terms of settlement of their family related issues. BACKGROUND FACTS [ 3 ] The parties were married on October 6, 2007 and separated either on July 22, 2013 (according to Ms. Barber) or on August 7, 2013 (according to Mr.

Barber). Each party had previously been married. Their marriage to each other did not produce any children. [ 4 ] Following their separation the parties attempted, through a prolonged period of negotiations, to resolve their issues, particularly those relating to their pensions and equalization of property. There were no spousal support or child support issues. Mr. Barber commenced an application on January 29, 2014. Both parties were questioned by opposing counsel and both exchanged financial disclosure. SETTLEMENT CONFERENCE [ 5 ] The parties attended a Dispute Resolution Conference on June 27, 2014.

They subsequently attended four settlement conferences, on the following dates: January 9, 2015, April 24, 2015, August 4, 2015 and November 9, 2015. [ 6 ] Following the November 9, 2015, settlement conference Miller J. made the following endorsement: … continuing settlement conference. Counsel advised the matter has been settled although documents have not yet been executed … Counsel advise they expect to file documentation with the Court either withdrawing or agreeing to a dismissal of all other claims.

POST SETTLEMENT CONFERENCE DEVELOPMENTS [ 7 ] Following the November 9, 2015 Settlement Conference, the parties sought to draft final minutes of settlement in accordance

with what they had agreed to on that date. Several drafts of a separation agreement were exchanged between the two. [ 8 ] On March 7, 2016, Mr. Barber’s counsel advised Ms. Barber’s counsel, after receiving a draft agreement from his legal counterpart, that his client was agreeable to the “revised draft Separation Agreement in order to expedite matters with only one minor exception … Please therefore find enclosed herein four copies of the Separation Agreement with only the one change on page 4 initialed and signed by my client (the Husband).

Please have your client (the Wife) execute same and return two (2) fully executed Separation Agreements in original to me.” [ 9 ] Ms. Barber’s counsel initially advised counsel that her client did not accept the minor change. This change dealt with the deduction of approximately $1,076.02 (related to interest charges) from the $60,000 equalization payment which Ms. Barber had agreed to pay Mr. Barber. Mr. Barber had previously paid this amount but Ms. Barber had paid the most recent instalment. Mr. Barber however, did not agree to the deduction proposed by Ms. Barber. [ 10 ] Ms.

Barber subsequently relented and agreed to forgo the deduction from the $60,000 equalization payment to Mr. Barber. She accepted the “minor change” and on June 2, 2016, executed the Separation Agreement which Mr. Barber had previously signed on March 4, 2016. Mr. Barber’s counsel sent a letter dated August 22, 2016, to Ms. Barber’s counsel indicating that “your client’s proposal and offer are not acceptable”. POSITIONS OF THE PARTIES Ms. Barber’s Position [ 11 ] Ms. Barber’s counsel submits that there is no genuine issue for trial and that this matter should be resolved by way of

summary judgment. The sole issue is whether there was a final settlement between the parties on November 9, 2015 and whether the terms of that settlement should be incorporated in a final court order. Ms. Barber’s counsel maintains that the Separation Agreement, executed by Mr. Barber on March 4, 2016, and by Ms. Barber on June 2, 2016, represents the binding settlement of the parties. Mr. Barber’s Position [ 12 ] Mr. Barber’s counsel submits that there was no meeting of the minds on November 9, 2015 and therefore, no binding settlement between the parties.

He submits that the parties were negotiating the terms of a settlement but that those negotiations ultimately broke down. He insists that Ms. Barber rejected Mr. Barber’s March 4, 2016 offer to settle and accordingly, there was no binding agreement between the two. [ 13 ] Mr. Barber’s counsel submits, in the alternative, that even if there was an agreement between the parties, the agreement is unenforceable because its terms are “unconscionable”, or “unfair, unreasonable or prejudicial” to Mr. Barber.

The value of the matrimonial home has increased substantially since November 2015 and it would simply be unconscionable for Mr. Barber to be deprived of his fair share of the increase, if the agreement is enforced. ANALYSIS [ 14 ] This motion raises the following issues: 1. Should

summary judgment be granted in this matter? 2. Was there a binding agreement between Mr. and Ms. Barber on November 9, 2015? If so, did Ms. Barber breach the agreement by her failure to accept the “minor change” proposed by Mr. Barber on March 4, 2016? 3. If there was an agreement between the parties, would it be unconscionable to enforce the agreement? ISSUE NO. ONE: Should

summary judgment be granted in this matter? [ 15 ] Rule 16(1) of the Family Law Rules , provides that: After the Respondent has served an Answer … a party may make a Motion for

Summary Judgment for a Final Order without a Trial on all or part of any claim made … [ 16 ] Rule 16(6) indicates that: “if there is no genuine issue requiring a trial of a claim or defence, the Court shall made a Final Order accordingly…” [ 17 ] Rule 16(6.1) provides that: 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 beexercised only at a trial: 1. Weighing the evidence. 2. Evaluating the credibility of a deponent. 3. Drawing any reasonable inference from the evidence. O.Reg. 69/15, s. 5(1). [18] In Hryniak v. Maudlin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada noted at para. 5: “that

summary judgmentrules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims.” [19] The court further noted at para. 4 that: … a trial is not required if a

summary judgment motion can achieve a fair and just adjudication, if it provides a process thatallows the judge to make the necessary findings of fact, apply the law to the facts, and is a proportionate, more expeditious and lessexpensive means to achieve a just result than going to trial. [20] The Court in Hryniak, reiterated at para. 47 that: “Summary judgment motions must be granted whenever there is no genuineissue requiring a trial (Rule 20.04(2)(a)). Analysis [21] Is there a genuine issue requiring a trial in this matter? In my view, there is not.

The fundamental issue in this matter is whetherthe parties settled their dispute on November 9, 2015, pending the drafting of a Separation Agreement incorporating the terms of thesettlement. There is an evidentiary record which makes it possible to render a decision on this issue, without a trial. [22] There is the endorsement of the judge who presided on November 9, 2015, the correspondence between counsel for both partiesfrom January to August 2016, the draft agreement signed by both parties within this period and the nature of the disputes between thetwo.

In my view, a trial judge would be in no better position to decide this issue than the judge hearing this motion. Indeed, based on thedocumentary evidence before me and the submissions made by counsel, I have a full appreciation of the evidence necessary to makedispositive findings and accordingly, I find that there is no genuine issue requiring a trial in this matter. [23] Mr. Barber’s counsel relies on the 2014 decision of James J. in Haslip v.

Haslip, 2014 ONSC 4852, 245 A.C.W.S. (3d) 373, atpara. 18, for the proposition that Rule 16 of the Family Law Rules are unaffected by Rule 20 of the Rules of Civil Procedure (“CivilRules”) and that the court should not grant

summary judgment where there is contradictory evidence. [24] However, Rule 16 of the Family Law Rules was amended in 2015 to mirror the provisions in Rule 20 of the Civil Rules. Asnoted by the court in Children’s Aid Society of London and Middlesex v. S.E. et al., 2016 ONSC 3987 , at para. 17: The effect of the amendments was that the court was given jurisdiction to apply the expanded evidentiary powers on motionsfor

summary judgment brought under Rule 16 to apply both the stage one and stage two analyses to the determination of the motion. [25] Given that a majority of family disputes involve the future wellbeing and welfare of a vulnerable spouse and/or children, theneed for

summary judgment in appropriate cases is arguably more pressing than in most civil cases. Indeed, the Court of Appeal recentlynoted in Frick v. Frick, 2016 ONCA 799, at para. 11: The Family Law Rules were enacted to reflect the fact that litigation in family law matters is different from civil litigation. Thefamily rules provide for active judicial case management, early, complete and ongoing financial disclosure, and an emphasis onresolution, mediation and ways to save time and expense in proportion to the complexity of the issues. They embody a philosophypeculiar to a lawsuit that involves a family. [26] In my view, this is an appropriate case for

summary judgment for the reasons stated above.

ISSUE NO. TWO: Was there a binding agreement between Mr. and Ms. Barber on November 9, 2015? [27] In Farquar v. Farquar, (ON CA); 1983 CarswellOnt 308 the Court stated at paras. 20 and 21 that thesettlement of a matrimonial dispute can only be encouraged if the parties can expect that the terms of such a settlement will be bindingand recognized by the courts. [28] In Delaney v. Delaney, 2002 CarswellNB 506, the Court noted at para. 22 that settlement of domestic disputes should beencouraged and that resolution of such disputes is preferable to litigation.

Where parties have settled issues, the settlement should beupheld by the Court except in exceptional circumstances such as if it is improvident, unconscionable, grossly unfair, or if one party wassuffering from incapacity. [29] Where the procedure to properly document a settlement through Minutes of Settlement is a formality in the circumstances of thecase, an agreement from correspondence between counsel will represent a settlement of the outstanding issues: see Stevenson v.Stevenson, 2015 ONSC 4031, 2015 CarswellOnt 9598, at para. 18. [30] In Harris v.

Harris, 1996 CarswellOnt 2794 (S.C.J.) the Court noted at para. 10 that in deciding whether a settlement isenforceable a court should consider a number of factors including the following: 1. Were either of the parties represented by legal counsel or the beneficiary of legal advice? 2. Was either party otherwise disadvantaged at any time during the course of the negotiations? 3. Can the written material the parties prepared, or the oral representations, that are being relied upon support a prima facieconclusion that either constitutes a settlement agreement? 4.

Does the evidence demonstrate that the parties intended that the written or oral representations or negotiations are to bebinding on them? 5. Was there an intention that some final act or determination be made before the settlement was to be final and binding? 6. Does the enforcement or non-enforcement of the negotiated resolution result in an injustice to either of the parties? 7. Does enforcement encourage negotiated settlement and discourage litigation and does it support the overall purpose andintent of the principles of the Family Law Act?

Analysis [31] These cases collectively establish that to be enforceable, a settlement does not have to be written on Biblical Tablets of Stone. Tothe extent that there is a meeting of the minds about a settlement and in subsequent correspondence, the parties sought, as a formality, todraft final Minutes of Settlement, such an agreement from the correspondence exchanged by counsel will represent a settlement of theiroutstanding issues. [32] Was there such a settlement on November 9, 2015?

In the settlement conference on that day, both parties were represented bycounsel and had the benefit of independent legal advice. It does not appear that either was disadvantaged at any time during the course ofthe negotiations. The endorsement of Miller J. unequivocally suggests that both parties had finally agreed on the terms of a settlement.Indeed, the endorsement includes an intention by counsel to file documentation either “withdrawing or agreeing to a dismissal of allother claims”.

Miller J.’s endorsement also indicates that the matter had been settled “although documents have not yet been executed”. [33] Subsequent correspondence between counsel for both parties suggest that the parties had indeed mutually agreed that they hadsettled the matter. In a letter dated January 26, 2016, Mr. Paladino wrote to Ms. Haber noting inter alia that: … the parties arrived to a settlement at the November 9, 2015 Settlement Conference and your office was to draft a SeparationAgreement to reflect the terms of the settlement between the parties. [34] Mr.

Paladino raised a new issue concerning his client’s entitlement to an additional $1,000 monthy because of additional interest

he was forced to pay on an outstanding debt “as a direct result of the delay in receiving the Separation Agreement” (emphasis added).Even with this new request, Mr. Paladino was affirming, rather than vitiating, the parties’ agreement on November 9, 2015. [35] Furthermore, Mr. Paladino sent a letter to Ms. Haber dated March 7, 2016 advising that “my client is agreeable to the reviseddraft Separation Agreement in order to expedite matters with only one minor exception”. This minor exception related to the $1,076.02which Mr. Barber refused to pay. Ms. Barber ultimately withdrew her request for Mr.

Barber to pay this amount and executed theseparation agreement dated January 28, 2016. In an August 22, 2016 letter, Mr. Paladino indicated his client’s new found desire to listthe matrimonial house for sale and to distribute the proceeds of sale equally. [36] In my view, both parties exchanged draft agreements between January and March 2016 on the assumption and clearunderstanding that they had arrived at a settlement. There were no disagreements on the substantive terms of the settlement.

Mr.Barber’s change of heart in consummating the agreement appears to have been motivated solely by a desire to obtain an increase share ofthe net proceeds of the sale of the matrimonial home; a provision which the parties had never agreed to and which was not part of theoriginal settlement. [37] Furthermore, the fact that both parties signed the minutes of settlement, as last revised by Mr. Barber’s counsel, is clearevidence of a binding and enforceable agreement between the parties. ISSUE NO. THREE: Would it be unconscionable to enforce the agreement between Mr. Barber and Ms. Barber? [38] In Toscano v.

Toscano, 2015 ONSC 487, 57 R.F.L. (7th) 234, Blishen J. notes at paras. 63-66 of her decision: [63] Although in her Application Ms. Toscano argued that the consequences of the marriage contract were unconscionable, ingeneral the doctrine of unconscionability with respect to domestic contracts focuses on whether or not there were unconscionablecircumstances surrounding the formation of the contract. It is the circumstances at the time of the drafting and signing of the contractwhich must be examined, not the results, under this criterion.

There is an exception for a spousal support waiver which can be set aside ifit results in unconscionable circumstances, pursuant to s. 33(4) of the FLA. [64] Matrimonial negotiations occur in a unique environment and therefore unconscionability in the matrimonial context is notequivalent to unconscionability in a commercial context (Rick v. Brandsema, 2009 SCC 10 , [2009] 1 S.C.R. 295, at para. 43[Brandsema]).

The question to be asked is whether there were “any circumstances of oppression, pressure, or other vulnerabilities, and ifone party’s exploitation of such vulnerabilities during the negotiation process resulted in a separation agreement that deviatedsubstantially from the legislation” (ibid, at para. 44). [65] Examples of inequality in bargaining may include one party being intellectually weaker by reason of a disease of themind, economically weaker or situationally weaker. Vulnerability may also arise due to a special relationship of trust and confidence (seeNorberg v.

Wynrib, (SCC), [1992] 2 S.C.R. 226, at para. 33). However, the “mere presence of vulnerabilities will not, inand of itself, justify the court’s intervention. The degree of professional assistance received by the parties will often overcome anysystemic imbalances between the parties” (Miglin v. Miglin, 2003 SCC 24 , [2003] 1 S.C.R. 303, at para. 82, [Miglin]). [66] In Rosen v. Rosen (1994), (ON CA), 3 R.F.L. (4th) 267 at para. 12 (Ont.

C.A.), the Ontario Court ofAppeal states the question to be answered in determining unconscionability is whether there was inequality between the parties, or apreying of one upon the other, that placed an onus on the stronger party to act with scrupulous care for the welfare and interests of thevulnerable. At para. 13 the Court notes it is: “not the ability of one party to make a better bargain that counts. Seldom are contractingparties equal.

It is the taking advantage of that ability to prey upon the other party that produces the unconscionability”. [39] Applying these principles to this case, there is simply no factual or legal basis to conclude that the settlement agreement isunconscionable. Mr. Barber was represented by counsel on November 9, 2015 and in the early months of 2016. His counsel had beenengaged in negotiations with Ms. Barber’s counsel since January 2015. There is not a scintilla of evidence of oppression, pressure orother vulnerabilities during these negotiations or on November 9, 2015.

Neither is there any evidence of inequality between the parties orof Ms. Barber preying on Mr. Barber. CONCLUSION [40] I find as a fact, based on the above, that the parties had agreed to a settlement agreement on November 9, 2015 and ultimatelyexecuted and finalized the terms of the agreement thereafter. I find that Ms. Barber did not breach the agreement when she sought a$1,076.02 deduction of the $60,000 she agreed to pay Mr. Barber for his share in the matrimonial home. I find that Mr.

Barber has nolegal basis to resile from the agreement either now or in August 2016, when he first declared his intention to sell the home and to seek adivision of the net proceeds of sale equally. ORDER [41] Order to go that there will be a final order incorporating the terms of settlement agreed upon by the parties as set out in theagreement signed by Mr. Barber on March 4, 2016 and by Ms. Barber on June 2, 2016.

COSTS [ 42 ] Ms. Barber’s counsel seeks costs in the amount of $25,000 inclusive on a partial recovery basis. [ 43 ] Mr. Barber’s counsel seeks costs of $15,811.98 on a similar basis. [ 44 ] In considering what amount of costs are fair and reasonable in this matter, I note the following. [ 45 ] Ms. Barber was substantially successful and accordingly, is presumed to be entitled to her costs. [ 46 ] This matter was not necessarily complex but it required a fair amount of preparation, including the preparation of legal briefs and compendiums. Ms.

Barber’s counsel’s hourly rate of $550 is not unreasonable, given that she was called to the Bar in 1978. The issues were relatively uncomplicated and should not have required a lengthy preparation. [ 47 ] I also note that Ms. Barber will be the sole beneficiary of the increase in value of the matrimonial home between the date of the settlement and the date of judgment and that should be a factor in the determination of costs that are fair and reasonable. In my view that amount should be $15,000. [ 48 ] Mr. Barber shall pay costs, fixed in the amount of $15,000 inclusive, to Ms.

Barber, within ninety (90) days of today’s date. ___________________________ André J. DATE: April 12, 2017 CITATION: Barber v. Barber, 2017 ONSC 2287 COURT FILE NO.: 36435/14 DATE: 20170412

SUPERIOR COURT OF JUSTICE - ONTARIO RE: KENNETH JOHN BARBER – and – LORNA ANN BARBER BEFORE: André J. COUNSEL: John Paladino, for the Applicant Catherine Haber, for the Respondent ENDORSEMENT André J. DATE: April 12, 2017