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Domestic Contract may still be Valid without being witnessed

In Gallacher v. Friesen, the parties cohabited in 2007 and until November 20, 2012. The parties have one child together.

In 2008, the Respondent mother asked the Appellant father to sign a domestic contract, which gave up his rights to make property claims against the Respondent mother. The Appellant father took the contract to a lawyer for legal advice and claims that he signed the contract in his car on the way home from his lawyer’s office.

After the parties separated, the Appellant father argued that the domestic contract was unenforceable because it did not comply with formalities of execution set out in section 55(1) of the Family Law Act (FLA), which states: “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.” There were no issues on whether the Appellant father had obtained independent legal advice and whether he understood his obligations under the contract and its nature and effect.

The Court of Appeal held that, notwithstanding the absence of a witness to the Appellant father’s signature, the domestic contract was valid and enforceable. The court explained that this section of the FLA was meant to ensure a measure of formality to the execution of these agreements so that there was proof it was actually signed and that parties were not unduly influenced into entering the agreements.

However, the court stated the “strict requirements of s. 55(1) may be relaxed where the court is satisfied that the contract was in fact executed by the parties, where the terms are reasonable and where there was no oppression or unfairness in the circumstances surrounding the negotiation and execution of the contract.” Thus, the absence of a witness is not irrelevant, but it seems that one party’s failure to strictly comply with the formalities of execution set out in the FLA will not be enough to set aside a domestic contract. Gallacher v. Friesen, 2014 ONCA 399