In what circumstances will a motion judge strike down a negotiated settlement agreement?

[14] In Craig v. Craig, the attack on a negotiated settlement agreement concerned, in part, the possible omission of a substantial term, which led the motions judge to question whether the parties were ad idem — fundamental question where the failure of a contract is alleged. As well, the husband raised a possible inequality of bargaining position, alleging that his wife had threatened his prosecution for the presentation of false mortgage renewal documents. Justice Rutherford decided in favour of the wife and agreed that there was no omission of a substantial term and no lack of a meeting of the minds. The solicitors had agreed, collaterally, to the execution of the mortgage renewal and a separation agreement was signed.

[15] As I have said, the most unusual wording of the minutes represents a case much different from the agreement considered by Justice Rutherford in Craig v. Craig and there is not sufficient certainty to sustain the total settlement. It represented an agreement only to come to an agreement at a later time and is unenforceable, except as to the interim-interim aspects dealt with.

[16] The agreement made by these parties as expressed in the minutes cannot be viewed as ending this litigation for another reason. In Craig v. Craig, the husband’s allegation of bargaining inequality and coercion was found not to be the real reason for his repudiation of the agreement. In fact, his first wife had given notice of her intention to claim child support and the husband: . . . decided his agreed upon settlement with the petitioner was going to jeopardize his capacity to pay appropriate child support to his former spouse.