



COURT OF APPEAL FOR ONTARIO

CITATION: McAfee v. McAfee, 2017 ONCA 785

DATE: 20171012

DOCKET: C63777

Sharpe, Blair and Epstein JJ.A.

BETWEEN

Kerie Lynn McAfee

Applicant

(Respondent)

and

Robert McAfee

Respondent

(Appellant)

Robert McAfee, acting in person

Erin MacKenzie, for the respondent

Heard and released orally: October 6, 2017

On appeal from the order of Justice Paul W. Nicholson of
    the Superior Court of Justice, dated May 11, 2017.

REASONS FOR DECISION

[1]

The appellant purported to accept portions of the respondents offer to
    settle, most if not all of which favored him, relying on the severability
    clause that had been put in the offer. In particular, he accepted the term
    providing that he did not have to pay arrears of child support or spousal
    support from the date of separation to date.

[2]

He did not accept any other essential term of the offer in exchange to
    resolve the matter. Within hours of the purported acceptance, counsel for the
    respondent advised the appellant that the severability clause had been included
    in error and that his partial acceptance of the offer was rejected.

[3]

The court has the jurisdiction to correct an inadvertent error in an
    offer to settle:
Milos v. Zagas
, [1998] 38 O.R. (3d) 218.

[4]

We agree with the motion judge that the mistake made by the respondents
    counsel was obvious on the face of the offer and that the severability clause
    made no sense in the context of this offer. As the motion judge put it at para.
    8 of his reasons:

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

[5]

The appellant has failed to demonstrate any error on the part of the
    motion judge that would justify this court in interfering with the exercise of
    his discretion to refuse to enforce the terms of the offer the appellant
    purported to accept.

[6]

Accordingly, the appeal is dismissed.

[7]

Costs to the respondent fixed at $6000, inclusive of taxes and
    disbursements.

Robert J.
    Sharpe J.A.

R.A. Blair J.A.

Gloria Epstein J.A.


