When a couple ends their relationship, even if not married, a separation agreement can be used to iron out details of the separation such as the division of property (including the matrimonial home)and matters of spousal support. While separation agreements are great ways to avoid litigation, it is important to make sure that they are entered into properly so as not to have a court void it down the road. In a decision from Ontario’s  Superior Court of Justice – Family Court, the court had to determine whether a separation agreement was properly entered into.

Entering into the agreement

The parties began litigation proceedings in May 2012 in order to settle issues around spousal support, equalization, exclusive possession of the matrimonial home, and exclusive possessions of the home’s contents.

The parties entered a settlement meeting on October 22, 2018. The woman represented herself, while the man was represented by a lawyer. The meeting was held in the lawyer’s office. The man argued that the parties resolved the details of s settlement during that meeting, and a follow up email was sent to the woman outlining the details of the settlement. The email stated that a draft of the agreement would be provided to the woman in order to finalize the matter. The woman agreed to this.

By November 12, 2018, the woman had twice asked the man’s lawyer when the draft of the agreement would be ready. No draft agreement was ever sent, but the man still brought a motion for summary judgment seeking a final order in accordance with the agreement that had been discussed via email and in the meeting.

The court’s analysis

The court began by explaining that for a domestic contract to be valid in accordance with Section 55 of the province’s Family Law Act, it must be in writing, signed by the parties, and witnessed. The court also explained that in order for an agreement to actually be met, there must be a meeting of the minds on all essential elements which must be incorporated into a final document. This was not the case with the parties before the court.

The court determined that no binding agreement had been entered into. The details provided in the emails were described as vague, explaining further that it left some issues unresolved. The email also failed to explain what a lump sum payment of $106,000 from the woman to the man was for (spousal support, equalization, etc). Finally, the court noted that the woman was not afforded an opportunity to obtain independent legal counsel, and as such had not offered informed consent to the terms discussed in the email.

As a result of this, the court dismissed the man’s request.

At Borden Family Law, we can help you through the process of drafting a separation agreement. We will work with your former partner or spouse and their lawyer to draft an agreement that is mutually agreeable and protects your legal rights and interests. We practice family law and family law only. Our narrow focus means our clients benefit from our in-depth knowledge and significant experience.  We serve clients in Oshawa, Brooklin, and the surrounding areas. To see how we can help you resolve your issue, call us at 905-576-6090 or contact us online. Ask about our flat fees and bundled services.