Court Cases & Orders

Can Husband Take Advantage of Drafting Error to “Cherry-Pick” Settlement Terms that Suit Him?

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Can Husband Take Advantage of Drafting Error to “Cherry-Pick” Settlement Terms that Suit Him?

In a brief oral judgment, the Ontario Court of Appeal tackled an unusual situation where the husband sought to accept only those portions of a settlement offer that were to his advantage, based on the accidental inclusion by the wife’s lawyer of a “severability clause.”  Strictly speaking, that clause theoretically allowed the husband, who was self-represented, to accept and abide by only those portions of the settlement that were of financial benefit to him, while disregarding the others.

And this is precisely what he tried to do:  Upon reading the offer the husband availed himself of the mistake, by promptly advising that he accepted only the specific term of the settlement agreement that absolved him of paying child support from the date of separation onward.  He did not accept any other essential terms of the offer and advised the wife and her lawyer accordingly.

Within hours of the husband’s purported acceptance, the wife’s lawyer wrote to advise him of the mistake.

The parties appeared before a motion before a judge, to sort the matter out.  In refusing to enforce only the favourable settlement terms formally accepted by the husband, that judge pointed out that there had been an obvious drafting mistake since it made no sense for the severability clause to have been included in the settlement offer.   On later appeal by the husband, the Appeal Court echoed the motion judge’s conclusion:

To allow the [husband] to accept the clauses that financial benefit him and require the [wife] to litigate all other clauses more than a year after the offer was submitted would be blatantly unfair.

The Court of Appeal added that the husband had failed to demonstrate that the motion judge had been wrong, and pointed out that it had the authority in any event to correct inadvertent errors that find their way into a settlement offer. The Court ruled in the wife’s favour, corrected the error, and ordered the husband to pay $6,000 in legal costs.

For the full text of the decision, see:

McAfee v. McAfee, 2017 ONCA 785 (CanLII)

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.