“Based on all this jurisprudence, Sarahat argues that the statutory requirement that the separation agreement need be signed should be relaxed given that the agreement was otherwise freely negotiated between the parties’ lawyers. In her submission, the Court of Appeal, in Gallacher, has already extended Geropoulos to pre-litigation negotiations. Or I should follow Pastoor as a matter of judicial comity. See R v Sullivan, 2022 SCC 19, at para 75.
Syed responds that there’s no binding jurisprudence that extends Geropoulos to unsigned agreements made before litigation starts, and only conflicting cases from this court. The formal requirements for domestic contracts “impress upon spouses the significance of their agreement and to encourage and preserve the validity of binding family property settlements.” See Anderson v Anderson, 2023 SCC 13, at para 42. See also El Rassi-Wight, at para 19.
Justice Breithaupt Smith distinguished Pastoor in Greve v Shaw, 2022 ONSC 2598. She identified several reasons not to follow Pastoor:
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- neither section 55(1) or section 56(4) (setting aside domestic contract) mention legal advice as a prerequisite
- litigation counsel and negotiation counsel have different duties
- relaxing the formalities under section 55(1) creates uncertainty—it requires an in-depth analysis of the scope of the parties’ legal advice
- without court oversight, there may be confusion about the specific requirements of the settlement, leading to uncertainty (at para 23)
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See also Weber v Weber, 2007 CanLII 38583, at para 21 (Ont Sup Ct); Lynch v Lynch, [1994] OJ no 2065 (Prov Div) (QL); Davis v Gregory, 1990 CanLII 12280 (Ont Sup Ct); and Tanaszczuk v Tanaszczuk, 1988 CanLII 8639 (Ont Sup Ct).
At bottom, there’s no binding authority on me. Geropoulos applies to separation agreements negotiated during litigation, not before. Gallacher and El Rassi-Wight deal with witnesses. Also, both decisions expressly tie the “formality” of domestic contracts to their “execution” and proof of signing. Lindsay (Div Ct) didn’t fully consider the issue. Pastoor and Greve (and the cases referred to in those decisions and that follow them) are in conflict.
Sarahat’s argument, from a policy perspective, has much appeal. If parties retain lawyers, instruct them to settle their case, and then enter hard-fought negotiations that produce a draft agreement, it seems unfair and unwise to allow one of the parties to resile from the agreement by not signing it. To exclude pre-litigation separation agreements from the Court of Appeal’s flexible interpretation of section 55(1) in Geropoulos seems to encourage parties to sue each other, if only to have the protection of Geropoulos if they should ever settle the case.
Alternatively, maybe such a policy shouldn’t be followed in family law cases. In effect, section 55(1) operates as a “cooling-off period”. Our law often provides for parties to have “buyer’s remorse”. See e.g., Consumer Protection Act, 2002, SO 2002, c 30, Sched A, ss 28, 35, 43, 51, Condominium Act, 1998, SO 1998, c 19, s 73, and Payday Loans Act, 2008, SO 2008, c 9, s 30. The situation here is no different: parties to a domestic contract, even one intended to settle the disputes arising from their separation, can resile from the agreement until it’s signed. That may be frustrating and expensive for the counter-party. But such a rule removes any ambiguity about what the parties agreed to and reduces litigation over unsigned agreements.
In the end, there are good reasons to adopt one or the other approach. But courts must give effect to the legislature’s intention, “regardless of any reservations they might have concerning its wisdom.” Validly enacted legislation is “paramount over the common law.” See Ruth Sullivan, The Construction of Statutes, 7th ed (Toronto: LexisNexis 2022), at 530; Kosicki v Toronto (City), 2023 ONCA 450, at para 185.
Section 55 is unambiguous: an enforceable separation agreement, like the one the parties negotiated here, must be signed by the parties. This agreement wasn’t signed. As a result, it’s unenforceable.”
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