“The jurisprudence is clear in confirming that retained counsel may bind their clients to the settlement of litigation by means of exchanged correspondence: Geropoulos v. Geropoulos (1982), 1982 CanLII 2020 (ON CA) at pp 768 – 769 (hereinafter Geropoulos). There are clear public policy reasons why a strict application of s. 55(1) of the Family Law Act is unwarranted in such matters: Geropoulos, quoted in this endorsement at paragraph 21 below.
In contrast, pre-litigation agreements are domestic contracts governed by s. 55(1) of the Family Law Act, which 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.
Numerous cases have found that the strict requirements of s. 55(1) may be relaxed, but not disregarded completely, for example where:
a. two educated and sophisticated parties, who had received independent legal advice, signed a domestic contract but only one signature was witnessed: Gallacherv. Friesen, 2014 ONCA 399 (CanLII);
b. a witness was not present at signing but gave uncontradicted evidence that the signatory had confirmed signing the agreement: Gamblev Longpre, 2016 ONSC 3499 (CanLII);
c. a domestic contract was drawn up and signed by one of the parties who accepted its benefit and then sought to overturn it; Virc v. Blair, 2014 ONCA 392 (CanLII);
d. a domestic contract was drawn up by one party, who then resiled from it and refused to sign it after the other party and his witness had done so: Pastoor v. Pastoor, 2007 CanLII 28331 (ON SC), hereinafter Pastoor.”