“There is no dispute that the alleged agreement in this case before me does not comply with section 55(1) of the Family Law Act. That section requires a domestic contract be made in writing, signed by the parties and witnessed for it to be enforceable.
There is also no debate that in some instances, courts will enforce settlements, despite the absence of the formalities required by s. 55(1). In Geropolous v. Geropolous, 1982 CanLii 2020, the Ontario Court of Appeal held that the predecessor to section 55(1) was aimed at protecting a different kind of agreement, not at the enforceability of a settlement agreement achieved through correspondence between counsel to settle a pending law suit. In its conclusion, the Court of Appeal said that settlement agreements, “…made with legal advice during the pendency of court proceedings which, to be effective, require the intervention of the court” are not subject to the requirements of the section [my emphasis added]. The Court is able to assure their authenticity by supervising their enforcement in the litigation. The ratio in Geropolous v. Geropolous pertains to agreements made this way, while litigation is ongoing.
In Pastoor v. Pastoor, 2007 CanLii 28331 (S.C.J.), this Court extended the principle from Geropolous v. Geropolous to agreements reached prior to the commencement of litigation.”