In Aberback v. Bellin, 2019 ONSC 3866, the court was tasked with deciding whether or not a settlement had been reached.
The parties were in a common law relationship. They disagreed over the date of their separation and had disputes about spousal support, equalization, and exclusive possession of matrimonial home and its contents.
The parties attended a settlement meeting where the woman (“Applicant”) was self-represented and the man (“Respondent”) was represented by a lawyer. The Respondent claimed that the parties resolved the details of the settlement through an exchange of emails, and, following the meeting, the Respondent’s lawyer sent an email to the Applicant outlining the settlement. No draft agreement was provided to the Applicant. The Applicant wanted to take the draft agreement to a lawyer and was under the impression that she was not bound to any settlement as long as she did not sign anything at the settlement discussion.
The Respondent brought a motion for summary judgment seeking a final order in accordance with the parties’ settlement agreement. The motion was dismissed.
The court held that in order for an agreement to be a domestic contract, pursuant to s.55 of the Family Law Act, there must be a written agreement signed by both parties and witnessed. This was not the case here, as only emails were exchanged between the Respondent’s counsel and the Applicant.
The Respondent’s attorney relied on a case, Geropoulos v. Geropoulos, which determined that an agreement contained in an exchange of correspondence between solicitors settling the claims of an action brought pursuant to the Family Law Act was enforceable. However, this case was not helpful to the Respondent as there was no consensus on essential terms.
Although Geropoulos permits lawyers to settle the matter, and this does include correspondence by email, the correspondence must be clear that it specifically resolves all outstanding issues. The court further stated that in order for there to be an agreement, there must be a meeting of minds on all essential elements, with agreement that those terms would be incorporated into a formal document.
In order to reach consensus, the terms of the agreement must be clear enough to give effect to reasonable expectations of parties. The terms of the parties’ agreement were vague. In addition, there was no agreement on all essential terms because there was an outstanding disagreement on property issues. The lack of agreement on essential terms is illustrated by the email from the Respondent indicating that he wanted an additional $25,000 or a list of furniture and other property – which he acknowledged that they had not agreed on – or the matter would return to court.
The court noted that there can be no agreement on “equalization and spousal support” when there is an outstanding disagreement on the property issues. The court could not ascertain whether the agreement was reasonable, as it did not state the amount of the settlement. Furthermore, there was no informed consent as the Applicant was self-represented and was not given an opportunity to obtain independent legal advice.
Ultimately, the court dismissed the Respondent’s motion for summary judgment. As such, this case evidences that it is incumbent to ensure that any correspondence by email is extremely clear, resolves all outstanding issues, and definitively establishes what each party has agreed to. In addition, self-represented parties should be afforded the opportunity to seek independent legal advice.
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