



COURT OF APPEAL FOR ONTARIO

CITATION: Crawford v. Crawford, 2018 ONCA 810

DATE: 20181009

DOCKET: C65188

Hourigan, Miller and Trotter JJ.A.

BETWEEN

Stacey Elizabeth
    Crawford

Respondent

and

Paul Glen Crawford

Appellant

Patrick Morris, for the appellant

Erika MacLeod, for the respondent

Heard and released orally: October 4, 2018

On appeal from the
    judgment of Justice Jennifer Woollcombe of the Superior Court of Justice, dated
    March 5, 2018.

REASONS FOR DECISION

[1]

There is a dispute between the parties regarding their date of
    separation. The appellant brought a motion seeking an order fixing the date of
    separation as at January 1, 2011, based on an agreement between the parties to
    use that date to value the appellants pension.

[2]

The respondent brought a motion to strike paragraphs from the
    appellants affidavit and Answer referring to an alleged agreement on the issue
    of the date of separation on the ground that they referred to communications that
    were protected by settlement privilege.

[3]

The motion judge ruled that the evidence did not evince a clear
    decision to reach a final settlement of the issue and ordered that the issue of
    the date of separation be determined at trial. She also struck references to
    the privileged communications on the ground that they would be irrelevant to
    the issue to be decided at trial.

[4]

On appeal, the appellant submits that motion judge erred because he
    should have been permitted to argue at trial that the parties concluded a
    settlement agreement with respect to the date of separation.

[5]

We disagree.

[6]

On the motion below, the appellant was attempting to enforce the parties
    alleged agreement on the issue of the date of separation. Therefore, the
    settlement communications were both relevant and producible for the purposes of
    determining whether an agreement had been reached. The motion judge found that
    there was no such agreement for all purposes. There has been no appeal of that
    finding.

[7]

The trial the motion judge ordered will determine the date of
    separation, not the issue of whether the parties reached an agreement on that
    point, which issue has been finally determined. In these circumstances, the
    motion judge was correct in striking the impugned paragraphs. These communications
    are properly considered to be privileged and cannot be used at trial for the
    purpose of determining the correct date of separation.

[8]

The appeal is dismissed.

[9]

The appellant shall pay the respondent her costs of the appeal in the
    all-inclusive sum of $6,500.

C.W.
    Hourigan J.A.

B.W.
    Miller J.A.

G.T.
    Trotter J.A.


