J. THE COURT OF APPEAL FOR SASKATCHEWAN RITA VERMA (Petitioner) APPELLANT and DR. SHEO P. VERMA (Respondent) RESPONDENT CORAM: The Honourable Chief Justice Bayda The Honourable Mr. Justice Sherstobitoff The Honourable Madam Justice Jackson COUNSEL: Mr. Neil Turcotte for the appellant Ms. Merri-Ellen Wright for the respondent DISPOSITION: Appeal Heard: September 14, 1995 Appeal Allowed: September 14, 1995 (orally) Reasons: October 13, 1995 On Appeal From: UFC 383/85, 622/85 477/88, J.C. of Saskatoon Appeal File: 1725 Reasons by: The Honourable Mr. Justice Sherstobitoff In concurrence: The Honourable Chief Justice Bayda The Honourable Madam Justice Jackson SHERSTOBITOFF J.A. This appeal was allowed from the bench with brief written reasons to follow. These are the reasons. The appeal is from an order that determined, after trial of an issue, that the parties had reached a binding agreement as to the value of Dr. Verma\'s pension plan during negotiations which took place during a series of pre-trial conferences. The judge, in her reasons, outlined the background as follows: Dr. Sheo Verma and his ex-wife, Rita Verma, separated in 1983 and were divorced in 1989. Mrs. Verma commenced her action for division of matrimonial property on May 1, 1985 and Dr. Verma petitioned for divorce in 1988. The question of the division of certain of the matrimonial assets has been contentious one and the fact that there is property in Germany and India as well as in Saskatchewan has complicated matters. The sequence of events relative to the division of Dr. Verma's pension benefits is as follows: November 15, 1988 Examinations for discovery of Dr. and Mrs. Verma. Both gave undertakings to produce certain documents. Dr. Verma was to produce statement of the value of his pension plan as of the date of commencement of the application, May 1, 1985. June 9, 1989 First pre-trial conference. At this settlement conference Ms. Gregor appeared with Mrs. Verma and Mr. Singer with Dr. Verma. There were oral agreements on the value of certain items of property. The pre-trial judge made no written memorandum but advised the parties to record what had been agreed upon that day. The conference was adjourned to October 3, 1989. June 19, 1989 Mr. Singer wrote to Ms. Gregor asking her to confirm his listed items of agreement, including: "That the husband's pension is valued at $39,411.00." July 14, 1989 Ms. Gregor's letter in reply confirmed "That the husband's pension is valued at $39,411.00." October 3, 1989 Pre-trial was adjourned sine die. April 8, 1991 Pre-trial resumed with Mr. Chetty acting for Mrs. Verma and Mr. Singer still acting for Dr. Verma. The pre-trial judge recorded various items of agreement but the list did not include agreement on the value of Dr. Verma's pension. The fiat ended: Pre-trial for continuation with respect to maintenance, jewellery and debts of the wife incurred. Adj. sine die. Court orders transcript of tape. June 20, 1991 Pre-trial conference continued. In his long fiat the judge declared that this pre-trial was terminated and made orders with respect to values of certain other items of property. The fiat contained the following direction: If the petitioner is not going to accept the value of the pension as being $39,411 and the respondent's employers contributions of $40,576, if they're not accepting the combined values of these figures as being the value of the respondent pension you are to have prior to the pre-trial date an actuaries valuation of the pension. March 8, 1993 At further continuation of the pre-trial conference Mr. Turcotte appeared with Mrs. Verma and Ms. Wright with Dr. Verma. The fiat read: There will be trial of the issue on the pension as to whether or not the documentation on the file and the correspondence constitutes and agreement as to the value of the pension and if it does not state the value of the pension then the court should determine what the value of the pension is for the purpose of the matrimonial property action. There will also be trial of the issue on whether or not the correspondence, briefs of law and fiats on the file constitute an agreement of the value of certain properties on the file, if not then to determine what the value of this property is. This fiat was made by the consent of the parties. The pension in question turned out, according to the judge, to be worth $102,615.94 on the date in question. The judge found that this information was available to Mrs. Verma and her counsel when the letters were exchanged each agreeing to the value of $39,411.00 for the pension and that Mrs. Verma should be bound by her agreement as to its value. She relied on the following statement of Dickson J. of the Unified Family Court in Zimmerman v. Zimmerman (1992), 1992 CanLII 8027 (SK QB), 104 Sask. R. 150, at p. 153, (appeal to Court of Appeal dismissed without reasons, May 3, 1993): The resulting agreement should be recognized and enforced by our courts. Otherwise the primary purpose of the pretrial conference is lost. cost-saving and time-saving procedure would then be reduced to meaningless step int he litigation process. adopt the reasoning of Estey, J., in Revelstoke Companies Ltd. v. Moose Jaw et al., 1983 CanLII 2223 (SK QB), [1984] W.W.R. 52; 28 Sask. R. 115, at page 60 W.W.R.: "Settlements of actions have been encouraged in our courts for great many years and it appears to me that the courts should be hesitant in upsetting or rectifying minutes of settlement unless of course there be something in the nature of fraud, incapacity of party, or the minutes of settlement are too vague to enforce or are obviously incomplete." Since the judgment of this Court in Childs v. Childs Estate, 1987 CanLII 205 (SK CA), [1988] W.W.R. 746, there is no doubt that judge has the power, under Rule of s. 44 of The Queen's Bench Act, R.S.S. 1978, c. Q-1, to enforce or set aside an agreement compromising an action by summary proceedings. The law as stated in that judgment applies as well to agreements or settlements reached during the course of pre-trial conferences in matrimonial property matters. What the judge in this case failed to note was that the courts in Zimmerman and in Childs were dealing with complete agreements settling or purporting to settle all aspects of the actions in question. In this case, we are dealing with something entirely different: an agreement fixing the value of few items of property, reached during the course of negotiations with view to an overall property settlement between the parties. There was nothing in the evidence to indicate that the parties intended that each individual item agreed to during the course of negotiations toward final agreement would constitute separate, independent, binding, and enforceable agreement irrespective of whether agreement was reached on all of the other items outstanding between the parties. These circumstances lead rather to the conclusion that each item agreed to was subject to reaching an overall final agreement. Accordingly, there was no contract that the judge could enforce. That is not to say that the parties cannot reach several separate independent, binding and enforceable agreements as part of an effort to reach an overall settlement of the matters in issue between them, but in order to do so, the intention of the parties to settle on a piecemeal or instalment basis must be clear. And, as noted above, nothing in the evidence indicates such an intention in this case. It might be added that the quotation from Zimmerman relied on by the trial judge, and quoted above, itself says that settlement should not be enforced by the court if it is "obviously incomplete". One final comment as to Zimmerman. The judgments in Zimmerman and in number of Queen's Bench judgments which have followed it have taken their authority to enforce settlements reached during pre-trial conferences from Queen's Bench Rule 184A. That Rule is contained in Part Fourteen of the Queen's Bench Rules, Offer To Settle, which contemplates formal written offer to settle to be served on the other party (Rule 181), and formal written acceptance to be served on the other party (Rule 183), and means of enforcing offers made and accepted under the Rules 181 and 183 (Rule 184A). While these Rules may apply to some settlement agreements made during pre-trial conferences, they would not apply in most cases where agreement is reached by negotiation, rather than by formal written offers and acceptances in compliance with the Rules. In the cases of negotiated settlements, the application to enforce, or to set aside, should be made under Rule of s. 44 of The Queen's Bench Act as was done in Childs. The appeal is therefore allowed. There will be no order as to costs. DATED at the City of Regina, in the Province of Saskatchewan, this 13th day of October, A.D. 1995. SHERSTOBITOFF J.A. concur BAYDA C.J.S. concur JACKSON J.A.
After a series of pre-trial conferences, and the exchange of some correspondence between the parties lawyers, the husband took the position that the parties had reached a binding agreement as to the value of his pension. The wife disagreed and a trial of this issue was directed and determined in the husband's favour. The wife appealed. HELD: Appeal allowed.  1)Since the judgment of this Court in Childs v. Childs Estate, [1988] 1 W.W.R. 746, there is no doubt that a judge has the power, under Rule 7 of s. 44 of The Queen's Bench Act, R.S.S. 1978, c. Q-1, to enforce or set aside an agreement compromising an action by summary proceedings. The law as stated in that judgment applies as well to agreements or settlements reached during the course of pre-trial conferences. 2)Parties will not usually intend to settle selected issues on a piecemeal basis, but rather will reach tentative agreements on selected issues conditional on an overall settlement agreement being concluded. Such was the parties' intention in this case, and accordingly, there was no settlement contract for the judge in the court below to enforce.  3)This is not to say that parties cannot reach several separate independent, binding and enforceable agreements as part of an effort to reach an overall settlement of the matters in issue between them, but in order to do so, the intention of the parties to settle on a piecemeal or installment basis must be clear. Nothing in the evidence indicated such an intention in this case. 4)In cases of settlement agreements reached at a pre- trial conference, the application to enforce, or to set aside, should be made under Rule 7 of s. 44 of The Queen's Bench Act as was done in Childs and not under Rule 184A as was the developing practice.