“The settlement agreement is binding and enforceable.
Rule 18 of the Family Law Rules governs Offers to Settle. Rule 18(3) notes that a “party may serve an offer on any other party” while Rule 18(9) deals with what is required to validly accept an offer. Rule 18(9) notes that the only valid way of accepting an offer is by serving an acceptance on the party who made the offer, at any time before the offer is withdrawn or the court begins to give a decision that disposes of a claim dealt with in the offer.
The test is objective as to whether a contract exists: “the offer, acceptance, consideration, and terms may be inferred from the parties’ conduct and from the surrounding circumstances.” (Owners, Strata Plan LMS 3905 v. Crystal Square Parking Corp., 2020 SCC 29, [2020] 3 S.C.R. 247).
The Mother served an offer to settle on the Father pursuant to the Family Law Rules. The Father’s acceptance of the offer to settle from the Mother was valid and clear. The Father specifically asked how to sign back the offer. After the Father clarified the signature process by email, he stated clearly, “Accept in Full”.
There was consideration supporting the settlement agreement. The Father on his own initiative sent the offer to settle to the parties’ real estate lawyer who released $50,000 to the Father pursuant to the settlement agreement. The Father argues that he did not spend any of the funds received. The law requires only an exchange of consideration to support a binding agreement.
The fact that the Father sent the offer to settle to the parties’ real estate lawyer indicates conduct that there was a binding agreement between the parties. I do not find that there was any misunderstanding, error or other irregularity during the contract formation process. The doctrines of mistake, misrepresentation, non est factum or unconscionability do not apply (Owners, Strata Plan LMS 3905).
There is also no evidence of duress on the Father. The case law has established that the threshold to prove that an agreement was made under duress is high. The Mother submits that in Ludmer v. Ludmer, 2013 ONSC 784 (varied in part 2014 ONCA 827), Justice Penny states at para 53:
Duress involves a coercion of the will or a situation in which one party has no realistic alternative but to submit to pressure. There can be no duress without evidence of an attempt by one party to dominate the will of the other at the time of the execution of the contract. To prove duress, the applicant must show [they were] compelled to enter into the [agreement] out of fear of actual or threatened harm of some kind. There must be something more than stress associated with a potential breakdown in familial relations. There must be credible evidence demonstrating that the complaining party was subject to intimidation or illegitimate pressure to sign the agreement.
The Father has not shown that he was coerced or compelled to enter into the settlement agreement out of fear of actual or threatened harm or subject to intimidation or illegitimate pressure to sign. The Mother argues that the Father was not under any financial or economic duress because he submitted that he did not use the funds received from the real estate lawyer. I agree.”