Absence of witness to husband’s signature did not preclude wife from relying on contract

Ontario civil | Family Law

DOMESTIC CONTRACTS

Absence of witness to husband’s signature did not preclude wife from relying on contract

Parties cohabited from 2007 to 2012 in wife’s home and had one child. Wife had significantly greater assets and income than husband. In 2008, wife asked husband to sign domestic contract. Husband took contract to lawyer for legal advice. Husband claimed he signed contract without witness. After parties separated, husband brought application alleging that wife had been unjustly enriched as result of contributions he made to her home. Motion judge concluded that husband’s claims were prohibited by domestic contract and claims were dismissed. Husband appealed motion judge’s decision. Appeal dismissed. Section 55(1) of Family Law Act (Ont.), provided that domestic contract was unenforceable unless it was made in writing, signed by parties and witnessed. Strict requirements of s. 55(1) may be relaxed where court was satisfied that contract was executed by parties, terms were reasonable and there was no oppression or unfairness in circumstances that surrounded negotiation and execution of agreement. Both parties signed contract and wife’s signature was witnessed. Both parties certified that they received independent legal advice before they signed contract. There was full financial disclosure before contract was executed. Both parties were educated and sophisticated and there was no duress, lack of capacity, vulnerability or other circumstance that would vitiate contract. Absence of witness to husband’s signature did not preclude wife from relying on domestic contract as defence to husband’s claims. Domestic contract was clear and unambiguous when it was read as whole and parties contracted for separate property regime. Wife was entitled to do what she wanted with husband’s rent payments and her acceptance and use of them did not repudiate contract.
Gallacher v. Friesen (May. 15, 2014, Ont. C.A., S.T. Goudge J.A., E.A. Cronk J.A., and G.R. Strathy J.A., File No. CA C57663) 239 A.C.W.S. (3d) 967.

Free newsletter

Our newsletter is FREE and keeps you up to date on all the developments in the Ontario legal community. Please enter your email address below to subscribe.

Recent articles & video

OCA refuses to extend intrusion upon seclusion liability to hacked commercial database holders

Law Society of Ontario extends virtual verification until January 2024

Ontario Court of Appeal upholds summary judgment in seller's favour after buyer fails to close

Heather Johnston joins Law Foundation of Ontario's board of trustees

Ontario Court of Appeal rejects statute-barred negligent misrepresentation claim

Prisoner's personal injury action stemming from court van accident dismissed

Most Read Articles

Seven new judges join Ontario Court of Justice

LSO and federation push Metrolinx to find alternative to new subway station on Osgoode Hall property

Ontario Court of Appeal upholds summary dismissal of domestic assault claim

Right of first refusal not 'eviscerated' by discouraging rights holder: Ontario Court of Appeal