Court Cases & Orders

Court Finds Wife’s New Lawyer’s Attempt to Renege on Deal “Too Cute By Half”

Image result for court

Court Finds Wife’s New Lawyer’s Attempt to Renege on Deal “Too Cute By Half”

The question in a case called Hillis v. Hillis was whether the wife’s new lawyer could (conveniently) rely on the fact that the wife had not signed her own Offer to Settle, as a means of getting out of a deal they had negotiated with the husband.

Spoiler alert:  The court wasn’t buying it.

The separated husband and wife had been negotiating through their respective lawyers about selling their matrimonial home and related issues.  The wife’s first lawyer made a formal Offer to Settle, and the husband’s lawyer accepted it on the husband’s behalf.

However – and despite being the one to put the Offer forward – the wife herself never personally signed it.   Technically, this was a breach of the Family Law Rules (FLR) on validly-accepted Offers to Settle.  Still, the parties took steps in furtherance of their intended agreement.

Then, the wife got a new lawyer.  Perhaps opportunistically, that new lawyer relied on technicalities to claim the wife’s non-signature meant there was not Offer capable of being accepted.  Essentially, the new lawyer reneged on the Offer that had been made to the husband.  The husband went to court for an order validating their mutual acceptance of the deal that had been struck, even despite the lack of signature.

The court agreed with the husband that “there are different routes to a contract that don’t always require compliance” with the FLR as to signature:

Using the ordinarily understood principles of contract law, it is clear to me that there was offer and acceptance and hence a valid and binding agreement.

The court pointed out that this couple had previously entered into a formal cohabitation agreement, and knew that their lives together were governed by contract, including the question of how the matrimonial home would be dealt with, the custody and access of their two children, and the exchange of financial information.  They agreed to have the draft Minutes of Settlement incorporated into a formal Court Order.  The court said:

[The wife’s] counsel prepared and provided those draft Minutes shortly after the [the husband’s] acceptance.

There was some jigging of the language of that document by the parties’ counsel.

Then, the [wife] changed counsel and lo and behold! her new counsel disapproved of the draft Minutes and entered the fray demanding that the Minutes be tailored to be precisely consistent with “the offer your client claims to have accepted”. …

It seems to me that after the [husband] had accepted her Offer, the [wife] had second thoughts and that those second thoughts were occasioned by the only material change in the parties’ circumstances:  her new counsel.

In rejecting the late-breaking technical objection by the wife’s new lawyer, the court concluded that the former couple had agreed to all essential terms of the wife’s Offer when the husband accepted.  The court made a formal order that incorporated those same terms, adding:

It is important to remember that the Offer was made by the [wife].

In my view, the [wife’s] new lawyer’s position is too cute by half.

For the full text of the decision, see:

Hillis v. Hillis

Stay in Touch

Keep learning about the latest issues in Ontario family law! Subscribe to our newsletter, have our latest articles delivered to your inbox, or listen to our Podcast Family Law Now.

Be sure to find out more about the "new normal", by visiting our Covid-19 and Divorce Information Centre.

About the author

Russell Alexander

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