Mother Asks Court of Appeal to Find Out-of-Court Settlement Non-Binding

November 5, 2020

Mark Feigenbaum

In an Ontario Court of Appeal decision, a mother asked the court to find an out-of-court settlement non-binding. 

Parents Reach Settlement Out of Court

The parents married in 1996 and separated in 2003. They had one child, a daughter, who was born in 1996. The daughter has developmental delays, cognitive impairments, and learning disabilities; she will be their dependant for life. 

Following several years of litigation, the parents signed an agreement in 2008 resolving all issues including child support. The agreement contemplated a review of the child support arrangements in 2013, but the review did not proceed.

As a result, in 2014, the father commenced an application seeking a reduction in the support payable. In 2015, prior to trial, the parents signed an agreement that governed all issues and barred them from making further claims against each other for the daughter’s support (“the Settlement Agreement”). The mother’s lawyer informed the court that “the parties have settled all issues in this case” and that a trial was no longer necessary.

The Settlement Agreement was not made into a final order. However, the parents complied with its terms and governed their relationship in accordance with it over the next several years. The Settlement Agreement required expert review of the provisions made to take care of the daughter. 

The parents therefore jointly retained an expert in disability law. She provided several opinions from 2015-2017 as to how the parents could address the risk that the daughter’s ability to receive disability benefits would be compromised and made a number of specific recommendations for amendments to the Settlement Agreement to address this issue. 

The parents negotiated but ultimately did not reach agreement on amendments. Instead, in May 2018, the mother took the position that the Settlement Agreement was not binding.

Lower Court Finds Agreement Binding

The father brought a motion for judgment declaring that the Settlement Agreement constituted a binding separation agreement, while the mother opposed the motion.

The motion judge declared that the Settlement Agreement constituted a binding separation agreement. She found that there was a meeting of the minds on the essential terms of the agreement and that the agreement was intended to settle all issues outstanding between the parents. She found, further, that there was no common mistake that rendered the agreement voidable or void. 

Court of Appeal Dismisses Appeal

On appeal, the mother conceded that the Settlement Agreement was binding at the time that it was made. However, she challenged the agreement on two bases. 

However, the court noted that the mother’s two arguments on appeal presented a novel theory of the case because they had not been made before the motions judge. The court explained that appellants are generally not permitted to raise new issues on appeal. The court found that it was not in the interests of justice to allow the mother to raise new arguments. 

Additionally, the court explained that the mother could not claim that the motions judge had erred on issues that the mother had not raised in the first place.

Finally, the court explained:

“The court’s discretion not to enforce a settlement is a limited one given the importance of certainty in the resolution of family disputes […]. There is no basis to exercise it in this case. In the absence of a factual record there is no basis for this court to find that the agreement is not in [the daughter]’s best interests, or that it would be in her best interests to set aside the agreement and to litigate the issues […].”

As a result, the appeal was dismissed and the Settlement Agreement was binding.

Get Advice 

At Feigenbaum Law, our goal is to help you move forward following the breakdown of a relationship while retaining as much financial stability as possible and ensuring your children are provided for. Mark Feigenbaum is able to counsel his clients on all potential risks that may result from a family law dispute, not just those related strictly to the breakdown of a marriage. Contact Mark online or call him at (905) 695-1269 or toll-free at (877) 275-4792 to book a consultation.


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