Domestic Agreement Slideshare Presentation

 

DOMESTIC AGREEMENTS

• different types of agreements
• cohabitation agreements/ marriage contracts /
• separation agreements/ paternity agreements/ family arbitration agreements
• most common are: cohabitation agreement/ marriage contract/ separation agreement

• marriage contract – allows parties to contract out of the property provisions of the FLA / change the property division in the event of a separation or divorce
• cohabitation agreement – parties not married not subject to the FLA property regime/ but they may want to opt in or settle other property rights/ becomes a marriage contract unless expressed terminate when parties married
• separation agreement – provides for the rights and obligations of the parties upon a breakdown of their marriage

• s. 2(10) FLA – provides that a Domestic Contract prevails over the FLA
• Form  of Agreement – signed, in writing, witnessed (s.55(1) FLA) / any amendment also in writing, signed and witnessed

• s.56 FLA – court can disregard any provision in the Agreement dealing with custody/access or child support if not in the best interests of the child

Parties to a Domestic Contract

• same sex or opposite sex
• marriage contract – two people who are married or intend to marry (s.52(1) FLA)
• cohabitation agreement – two people who cohabit who are not married to each other (s.53(1) FLA)
• separation agreement – two people who cohabited and are living separate and apart (s.54 FLA)

Setting Aside a Domestic Contract

• -s.56(4) FLA says that a Domestic Contract can be set aside
• setting aside domestic contract
• (4) A court may, on application, set aside a domestic contract or a provision in it,
• (a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made; (IMPORTANCE OF FINANCIAL DISCLOSURE)
• (b) if a party did not understand the nature or consequences of the domestic contract; or
• (c) otherwise in accordance with the law of contract. R.S.O. 1990, c. F.3, s. 56 (4). (ie. Fraud, duress, undue influence, material misrepresentation)

DURESS

– person must prove that they were forced to sign the contract out of fear of injury

UNDUE INFLUENCE

– person seeking to set aside the  Agreement bc of undue influence must prove that as a result of a pre-existing relationship, the other party had control over him/her and took advance of the position to get an unfair bargain

UNCONSCIONABILITY

Rosen v. Rosen (COA) – need an inequality bw the parties/ preying of one party upon the other/ person must prove that one person in a vulnerable position at the time of the contract, and took advantage of the situation to extract a bargain that is grossly unfair

Subject Matter of Domestic Contracts

Separation Agreement

-wide scope / parties can deal with rights and obligations wrt property/ child and spousal support/ children/ custody and access etc.
– cannot provide for any party to remain “chaste” s. 56(2)

Marriage Contract / cohabitation

• -cannot deal with custody and access /cannot predict
• -cannot provide for one party to have exclusive possession of mat home (cannot predict future)

Toronto divorce lawyers deal with these kinds of problems all the time. Whether it be child support or another matter of family law, get in touch with us today.