“Section 55(1) of the FLA provides:
A domestic contract and an agreement to amend or rescind a domestic contract are unenforceable unless made in writing, signed by the parties and witnessed.
The purpose of this provision is in part to provide some assurance that the parties were deliberate in reaching their agreement and understood the obligations being imposed: see A. Swan & J. Adamski, Canadian Contract Law, 3d ed. (Toronto: LexisNexis Canada Inc., 2012), at para. 5.50.
In contrast, another statute that addresses formal execution, the Succession Law Reform Act, R.S.O. 1990, c. S.26 (“SLRA”), has more specific execution requirements than the FLA. Section 4(1) of the SLRA provides:
Subject to sections 5 and 6, a will is not valid unless,
(a) at its end, it is signed by the testator or by some other person in his or her presence and by his or her direction;
(b) the testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time; and
(c) two or more of the attesting witnesses subscribe the will in the presence of the testator.
In Waters v. Conrod, 2007 BCCA 230, 66 B.C.L.R. (4th) 181, the British Columbia Court of Appeal addressed s. 61(3) of the Family Relations Act, R.S.B.C. 1996, c. 128, the language of which is substantially similar to s. 55(1) of Ontario’s FLA and which, like the FLA, imposes a witness requirement on marriage agreements. The British Columbia Court of Appeal upheld the enforceability of an agreement in circumstances where the parties signed it and only afterwards met with a notary whom the trial judge found to have “‘witnessed’ the agreement”. The court concluded that to hold otherwise would defeat the statute’s purpose, which was to give no effect to agreements that were not freely made.
The language of s. 55(1) of the FLA is not as strict as s. 4(1) of the SLRA. In unusual circumstances such as those found in the case under appeal, the language of s. 55(1) allows for a less strict application of the witnessing requirement rule. Here, the appellant admitted signing the agreement, accepted the benefits of the agreement and waited for close to two years to raise the issue of non-compliance with s. 55(1). Moreover, the co-worker witness recognized and was able to identify the appellant’s signature. In these circumstances, it was not open to the appellant to successfully assert non-compliance with s. 55(1) of the FLA and the motion judge was correct in determining that this was not a genuine issue requiring a trial.”