Make sure your separation agreement is comprehensive because spouses who are able to avoid trial through mediation to resolve most of their family law disputes (usually with the assistance of their respective lawyers) are often ahead of the game: they can avoid much of the cost and aggravation inherent in the litigation process. However, the formal agreement that is reached in the negotiation process – called “Minutes of Settlement” – amounts to an enforceable legal contract, so despite the relatively informal procedure used it is important that the document accurately and comprehensively reflect in writing the parties’ intentions.
In one Ontario decision, called Davis v. Hutchinson, 2011 ONSC 1492 (CanLII), the separating husband and wife had participated in a pre-trial conference which resulted in them agreeing on the resolution of their matrimonial issues. They signed the Minutes of Settlement just before 6 p.m., while the pre-trial Judge waited in a nearby room for them to come to terms. Upon later receiving her copy of the Minutes of Settlement, the wife realized that two issues that had been discussed and agreed to at the pre-trial conference had not made it into the formal document. When the husband and his lawyer did not agree to amend it, she had to return the matter to the judge to ask that it be corrected.
The court refused. The particular matrimonial issues that had been inadvertently omitted from the Minutes were either items that she could deal with after-the-fact, or were too vague in terms of the purported agreement reached by the parties. Also, even with the alleged stress and pressure to sign that the wife claimed she was under in light of what seemed to be a 6 p.m. “deadline”, the court rejected the wife’s claim that the Minutes had been signed under duress or because of undue influence. there was nothing in the agreement that was unconscionable; the written version had to stand.
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