“The parties agree that the general law of contracts applies in the family law context such that settlement agreements are generally enforceable where there is a meeting of the minds: Lindsay v. Lindsay, 2021 ONSC 7085 (Div. Ct.) (CanLII) at paras. 32-42; see also Gorman v. Gorman, 2021 ONSC 2577 (CanLII) at paras. 64-69.
Here, the Mr. Humphrey says that the Agreement should not be enforced because Mr. Williams repudiated the Agreement thereby depriving Ms. Williams of its benefit, and that Ms. Williams accepted Mr. Williams’ termination. Mr. Humphrey points to the emails as evidence that Mr. Williams repudiated the Agreement after retaining Mr. Cohen because Mr. Cohen refused to confirm the Agreement prior to the offer’s expiry on September 17th, and because a Settlement Agreement was not signed in a timely manner.
The law of repudiation is summarized by the Court of Appeal in Glen Schnarr & Associates Inc. v. Vector (Georgetown) Limited, 2019 ONCA 1012 at paras. 29-32:
Anticipatory repudiation occurs when a contracting party, “by express language or conduct, or as a matter of implication from what he has said or done, repudiates his contractual obligations before they fall due”: G.H.L. Fridman, The Law of Contract in Canada, 6th ed. (Toronto: Carswell, 2011), at p. 585.
However, an anticipatory repudiation of a contract does not, in itself, terminate or discharge a contract; it depends on the election made by the non-repudiating party: Guarantee Co. of North America v. Gordon Capital Corp., 2000 SCC 25 (CanLII), [1999] 3 S.C.R. 423, at p. 440; Brown v. Belleville (City), 2013 ONCA 148, 114 O.R. (3d) 561, at para. 42. As Cronk J.A. stated in the latter decision at para. 45:
It appears to be settled law in Canada that where the innocent party to a repudiatory breach or an anticipatory repudiation wishes to be discharged from the contract, the election to disaffirm the contract must be clearly and unequivocally communicated to the repudiating party within a reasonable time. Communication of the election to disaffirm or terminate the contract may be accomplished directly, by either oral or written words, or may be inferred from the conduct of the innocent party in the particular circumstances of the case: McCamus, at pp. 659-61. [Emphasis added.]
The test for repudiation is objective, requiring me to consider whether a reasonable person, considering the surrounding circumstances, would conclude that the breaching party no longer intends to be bound by the contract: Remedy Drug Store Co. v. Farnham, 2015 ONCA 576 (CanLII), at para. 45-46.
Dennison J. in Gorman, supra, at para. 70, helpfully summarized the factors I am to consider when determining whether to enforce a contract in the family law setting, including: whether the parties were represented by counsel, whether the written material supports a prima facie agreement, whether the evidence supports a shared intention to be bound by the written negotiations, whether there was some final act or determination required prior to the settlement being final and binding, and any injustice occasioned by enforcing or not enforcing the agreement. At a policy level, I am to consider whether enforcement would encourage negotiated settlement and discourage litigation.”
Andrews v. Andrews, 2022 ONSC 3867 (CanLII) at 16-20