Ontario Civil

Family Law

Exchange of correspondence sufficient to indicate intention to be bound

Parties were not married. Applicant sought payment out of proceeds of sale of home parties lived in. Applicant purchased home with own funds. Title was put in joint names. Cohabitation in house was brief. Respondent claimed one-half share based on unjust enrichment. Costs were ordered against respondent for litigation misconduct. Respondent’s counsel proposed settlement. Applicant’s counsel counter-offered and respondent’s counsel conveyed draft agreement and statutory declaration in terms proposed by applicant. Respondent argued counsel did not have authority to accept offer. Applicant brought motion to dismiss all claims for failure to pay costs. Applicant sought summary judgment. Judgment was granted in terms of agreement that applicant pay respondent $6,000 in full satisfaction of any interest in home. Motion date plea of poverty lacked credibility by lateness and lack of support by evidence of real inability to work or reasonable effort to prioritize costs payment. Analysis of deprivation experienced showed little connection to purchase of home. Respondent showed no unjust enrichment to applicant against which to assert corresponding deprivation. Summary judgment was proper approach to claim for unjust enrichment and that ground for claim against home proceeds was dismissed. Summary judgment was granted on claim of gift. Presumption of resulting trust was not set aside and operated to hold that respondent held title in trust for applicant. There was binding settlement resulting arising from correspondence between counsel. Contract was formed. Exchange of correspondence sufficed to indicate intention to be bound. Payout provisions were about implementation and were not essential terms. Subject to payment according to terms of agreement applicant was entitled to proceeds of sale free and clear of any interest of respondent.

Oliver v. Racette

(Oct. 5, 2011, Ont. S.C.J., Eberhard J., File No. FC 10-92) 208 A.C.W.S. (3d) 698 (12 pp.).

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