The Exceptional Circumstance of Enforcement of an Agreement in Family Law Without the Formalities

The Exceptional Circumstance of Enforcement of an Agreement in Family Law Without the Formalities

Enforcement of an Agreement in Family Law

The Exceptional Circumstance of Enforcement of an Agreement in Family Law Without the Formalities   

The overarching goal of Family Law matters are to resolve such matters in a cost-effective and efficient manner.  This can be achieved through the successful negotiation of the terms of a Separation Agreement which may then, in turn, be signed by each party before a witness.  However, what happens where two parties agree but before they are able to sign a properly drafted Separation Agreement, one of the parties backs out of the deal and refuses to sign a written Separation Agreement.  Can an agreement between the parties be enforced even without a fully signed and witnessed Separation Agreement?     In certain circumstances, the law may uphold a family agreement even though it is not a properly signed and witnessed Separation Agreement. 

Section 55(1) of the Family Law Act, R.S.O. 1990, c. F.3, provides that a domestic contract in Ontario is unenforceable unless it is in writing, signed by the parties, and witnessed. However, despite the clear wording of s. 55(1), some cases in Ontario have held that, in certain circumstances, courts can enforce family law agreements that do not comply with the requirements that a Domestic Contract be in writing, signed by both parties, and properly witnessed.   

The primary exception to section 55(1) originates from the Ontario Court of Appeal’s 1982 decision in Geropoulos v. Geropoulos (1982), 26 R.F.L. (2d) 225 (Ont. C.A.). Despite that GEROPOULOS was decided under the former legislation being the Family Law Reform Act, the reasoning in GEROPOULOS has been repeated by Ontario law today.

The Geropoulos exception provides that a family law settlement reached during the course of litigation is enforceable provided, among other things, both parties had legal advice.  The rationale for the  decision is that parties who are represented by Counsel should stand by their compromises and understandings through their lawyers.  This promotes the overarching objective that family law matters need to be resolved in a timely and expeditious manner.

It is, however, unclear whether the Geropoulos rule applies to pre-litigation family law matters.  There have been mixed decisions of the Superior Court of Justice on this point.  In Pastoor v. Pastoor (2007), 48 R.F.L. (6th) 94 (Ont. S.C.J.) the distinguished Justice Perell reasoned with the GEROPOULOS principles to uphold a settlement reached without a formally signed Domestic Contract.  On the other hand, there have been other decisions of the Superior Court of Justice that decline to apply the GEROPOULOS principles to pre-litigation settlements (For example, the decision of Greve v. Shaw (2022), 71 R.F.L. (8th) 293 (Ont. S.C.J.)).

 The exceptions to Section 55(1) of the Family Law Act is a developing area of the law.  The question still remains to what extent the GEROPOULOS principles apply and, in particular, whether those principles apply at all to pre-litigation settlements.

To avoid any confusion, it is always best to have settlements documented by a properly drafted Separation Agreement that is signed by both parties and where both parties have had independent legal advice from a qualified family lawyer.

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