If you and your spouse are divorcing, it’s always best if you can reach a settlement on at least some of your disputed issues, rather than taking them to court. But it’s sometimes difficult to identify exactly when you have reached a settlement, as opposed to being merely close to striking a legally-binding deal.
First of all, an enforceable deal can arise from many different scenarios: e.g. from informal negotiations (where you and your spouse have “kitchen-table negotiations” in order to come to terms on some matters); through your respective lawyers having a meeting or discussion; or as a result of a more formal, settlement-focused process (such as a Settlement Conference under the Family Law Rules).
But no matter how the potential deal arises, under the law any purported settlement – which is technically a legal contract between you and your spouse – must exhibit certain elements in order to be valid. These are:
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- a “meeting of the minds”;
- whether there is consensus on all the essential terms of the agreement between you (or whether there were still vague and imprecise parts); and
- whether you and your spouse have made your agreement conditional upon executing a formal written contract.
(On this last point, the fact that a purported settlement is not initially in writing is not fatal, as long as you and your spouse have verballly agreed as to its essential terms.)
While courts have itemized these factors, there is also a “sniff test” that they tend to apply, with the question being this: “Would a reasonable onlooker have concluded that you and your spouse have reached a deal?” This is always determined on a case-by-case basis.
Shulman Law Firm is a Toronto-area firm of experienced Family Lawyers who can provide tailored, practical advice and effective representation in connection with separation and divorce, child custody and support, cohabitation and separation agreements, family mediation, and all other areas of Ontario Family Law. Contact us to set up a free consultation.