In the following case the respondent, Mary McNeil, moved for judgment with respect to what she claimed to be the agreed upon terms of the applicant’s Offer to Settle.

Background:

The parties were married from November 1999 – April 2017, at this point the applicant, Rodney McNeil, and respondent separated. In October 2020, the respondent agreed to the terms of the applicant’s Offer to Settle without adding any conditions. The disagreement between the parties is based on the validity of the October offer. The applicant argued that the October offer was not an offer pursuant to Rule 18 of the Family Law Act because his lawyer signed on the line that he should have. Thereby arguing that the Offer should be governed by common law contract principles. However, the respondent stated that the offer was valid under Rule 18, despite her making a counter-offer.

The significance of Rule 18 of the Family Law Rules is that it has the power to override the general common law rules of offer and acceptance. The applicant argued that the Offer was invalid because of a rule 18(4) breach and the respondent relied on rule 18(10) to uphold the Offer. The relevant sections of the Rules with respect to this case are:

• 18(4) An offer shall be signed personally by the party making it and also by the party’s lawyer, if any.
• 18(9) 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  • The offer is withdrawn; or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
• 18(10) A party may accept an offer in accordance with subrule (9) even if the party has previously rejected the offer or made a counter-offer.

Analysis:

In determining if the Offer could be upheld, Justice Van Melle considered relevant case law and granted the respondent’s motion. Justice Van Melle’s decision was a result of two significant factors – partial performance & purpose of the Family Law Rules. It was accepted by the court that although the applicant did not personally sign the Offer, he was the party that prepared and served the Offer. According to the perspective of Justice Van Melle, it would run counter to the objective of the Family Law Rules and common sense to now base the decision from the failure of the applicant to sign the Offer. The applicant had confirmed that he authorized the Offer, and no explanation was provided with respect to why the applicant did not sign the document.

In addition, the court accepted evidence that demonstrated partial compliance with the terms of the Offer on behalf of the applicant. The conditions of the Offer pertained to the removal of property from the matrimonial home, transfer of selected property between parties, the transfer of funds to the child, and the transfer of selected accounts to the respondent’s name. All these steps had since been completed and only two steps remained – an equalization payment & payment with respect to expenses. Considerable weight was attributed to these factors in concluding.

Conclusion

Despite the Family Law Rules requiring both parties’ signatures, the court found that the Offer was valid, and the respondent was successful in seeking judgment.

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