Who can witness a Separation Agreement in Ontario

It is a common Question “Who can witness a Separation Agreement in Ontario?” A Separation Agreement must be witnessed by any person above the age of 18.

A separation agreement is, in fact, a contract between the parties. It is referred to as a domestic Agreement under the Family Law Act.

The Formal Requirements of any domestic Agreement under the Family Law Act including a Separation Agreement are covered under section 55 of the Family Law Act.  Therefore as a Separation Agreement in Ontario must be 1) in Writing 2) Signed by the Parties 3) Witnessed.

Do I need to have a Lawyer to Witness a Separation Agreement in Ontario

Under the Family Law Act, there is no legal or formal requirement for a Separation Agreement to be witnessed by a Lawyer.

However, it is always preferred that a Lawyer, Notary Public or a Commissioner for Oaths witness a Separation Agreement.

In an exceptional case, the  Court of Appeal in the case of Gallacher v. Friesen (2014), 319 O.A.C. 351 (CA)  held that a signed agreement was enforceable even if the agreement was NOT witnessed. In this case, the Agreement was held to be valid despite the fact that Wife’s Signatures were not witnessed because

1. Both Parties Signed the Agreement;
2. Husband Signature was witnessed;
3. both parties obtained and attached Certificate of Independent Legal Advice before signing the agreement.
4. both  parties were sophisticated and educated enough;
5. there was no duress, lack of mental or age capacity, vulnerability or any other circumstances which could invalidate the agreement.

It should be noted that other facts of the case proved the terms and conditions of the agreement, therefore, the need to have a witness was waived as an exceptional case.  One must note that the purpose of a witness is to confirm that the parties signed the agreement. If other facts of the case proved to the court that the agreement was in fact executed or signed by the parties then an agreement without a witness was held to be acceptable. However, parties should not take such monumental legal risk when entering into a separation agreement.

It is strongly recommended that the agreement should be witnessed but you may book a consultation with a Family Lawyer or Divorce Lawyer to inquire as to the validity of witnessing a Domestic contract.