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Lorne MacLean QC

Vancouver Enforcing Agreements Family Lawyers deal with negotiating agreements after obtaining full disclosure and then ensuring they are enforced. Frequently, parties reach minutes of settlement on the courthouse steps and tell the Court the matter is settled. Shortly thereafter, parties prepare detailed written documents that set out the settlement. Not surprisingly, parties often disagree on the final wording. Does this mean there is no deal? Usually not! Lorne N MacLean, QC explains the simple test as follows:

  • Step 1 – is it obvious to the objective, reasonable bystander that the parties intended to contract, and
  • Step 2 – can the essential terms of that contract  be determined with a reasonable degree of certainty

Our Vancouver Enforcing Agreements Family Lawyers know that a dispute over releases of all claims or exact final settlement wording does not necessarily mean there is no enforceable deal.

Lorne N MacLean, QC has helped set the law on enforcing deals in Bayne and conversely in winning an appeal where the parties never agreed on the main points set aside in the BC Court of Appeal in Dominak.

Vancouver Enforcing Agreements Family Lawyers – Promoting Family Settlements

A recent BC Court of Appeal in Marcotte case sets out the importance of out of court settlements in family law cases

[42]         In Kuo at paras. 37–38, this Court succinctly summarized the law of repudiation in the context of settlement agreements, stating there is a strong public interest in favour of resolving lawsuits by agreement. Settlements allow parties to reach a mutually acceptable resolution to their dispute without prolonging the personal and public expense and time involved in litigation. Therefore, the policy of the courts is to promote settlement and to enforce settlement agreements. This policy contributes to the effective administration of justice.

[43]         The Court then discussed the settled principles of contract formation. As correctly identified by the chambers judge and as discussed above, the first question to address when a dispute arises is whether the parties have agreed on all essential terms of the purported settlement. The court must determine whether, based on the evidence, it is clear to the objective, reasonable bystander that the parties intended to contract, and whether the essential terms of that contract can be determined with a reasonable degree of certainty. If the parties have formed a contract, then unless otherwise agreed, an obligation to furnish a release is implied.

Vancouver Enforcing Agreements Family Lawyers – Completion

[44]         This Court in Kuo went on to discuss completion of a contract and repudiation as follows:

[39]      … Unless the agreement is terminated, the parties must fulfill their obligations, express and implied.  Termination by repudiation occurs when a party evinces an intention not to be bound by the agreement and the innocent party elects to accept the repudiation: Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 423 at para. 40.  A fundamental breach of a primary obligation may also constitute a repudiation because it deprives the other party of substantially the whole mutually intended benefit of the agreement and thus amounts to a refusal to perform: Mantar at para. 11; Doman Forest Products Ltd. v. GMAC Commercial Credit Corp. – Canada, 2007 BCCA 88 at para. 109.

[40]      An intention not to be bound by an agreement may be evinced by words or conduct: Guarantee Co. at para. 40.  Depending on the circumstances, this may include silence in response to a request for performance when and after the request is made.  In some circumstances, a repudiation may be ongoing, which, unless the agreement is affirmed, provides the innocent party with a continuing right to accept it.  However, regardless of how it manifests, the refusal to perform must be clear and unequivocal to amount to a repudiation: Dosanjh v. Liang, 2015 BCCA 18 at paras. 43-44; Doman Forest Products at paras. 108-109.

Vancouver Enforcing Agreements Family Lawyers – Repudiation By Subsequent Conduct Rare

[41]      It is rare for subsequent conduct to amount to a repudiation of a settlement agreement: Fieguth [Fieguth v. Acklands Ltd. (1989), 37 B.C.L.R. (2d) 62 (C.A.)] at 72. For example, while insisting upon an excessive release may evidence an unwillingness to be bound, the mere proffer of such a release does not necessarily have this effect.  On the contrary, as Chief Justice McEachern explained in Fieguth at 70, 72:

            … [Unless otherwise agreed] either party is entitled to submit whatever releases or other documentation he thinks appropriate.  Ordinary business and professional practice cannot be equated to a game of checkers where a player is conclusively presumed to have made his move the moment he removes his hand from the piece.  One can tender whatever documents he thinks appropriate without rescinding the settlement agreement.  If such documents are accepted and executed and returned then the contract, which has been executory, becomes executed.  If the documents are not accepted then there must be further discussion but neither party is released or discharged unless the other party has demonstrated an unwillingness to be bound by the agreement by insisting upon terms or conditions which have not been agreed upon or are not reasonably implied in these circumstances.

***

            It should not be thought that every disagreement over documentation consequent upon a settlement, even if insisted upon, amounts to a repudiation of a settlement. Many such settlements are very complicated, such as structured settlements, and the deal is usually struck before the documentation can be completed.  In such cases the settlement will be binding if there is agreement on the essential terms.  When disputes arise in this connection the question will seldom be one of repudiation as the test cited above is a strict one…  It will be rare for conduct subsequent to a settlement agreement to amount to repudiation.

[45]         I agree with the respondent that the December 2, 2015 letter does not evince an intention to refuse to perform the contractual obligations, let alone meet the “clear and unequivocal” standard required by the jurisprudence: Kuo at para. 40.

Vancouver Enforcing Agreements Family Lawyers – Draft Documents That Are Not Accepted Doesn’t Mean No Deal

[46]         It would be rare for post-settlement conduct to amount to repudiation or anticipatory breach. As the respondent correctly notes, where an agreement has been reached, but the release has yet to be finalized, the tendering of draft release documents to the other party which are ultimately not accepted will not generally amount to repudiation: see Fieguth.

Vancouver Enforcing Agreements Family Lawyers
Maclean Law has 6 Award Winning Family Law Offices Across BC and in Calgary 1-877-602-9900

If you want top rated Vancouver Enforcing Agreements Family Lawyers on your side across BC and in Calgary Alberta contact us toll-free at 1-877-602-9900 to meet with us in Vancouver, Calgary, Surrey, Kelowna, Fort St John, and Dawson Creek.