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DOMESTIC CONTRACTS AND SEPARATION AGREEMENTS - Types - Cohabitation agreements - Interpretation

Wednesday, October 18, 2017 @ 8:57 AM  


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Appeal by Metzer of a Superior Court of Justice decision in a dispute involving a cohabitation agreement. The appeal arose from a dispute between the appellant and the respondent, the Estate of Ora Moses. Ora Moses was the appellant’s former spouse. The couple never married and separated before her death. The primary issue at trial was whether broadly-worded waivers of property rights in the couple’s cohabitation agreement applied to three development properties. The trial judge found that though never formalized, a property development agreement existed between the appellant and Ora Moses, and further found that despite the express wording of the cohabitation agreement, there was convincing evidence the property development agreement and not the cohabitation agreement governed development properties in which the parties invested. The trial judge set aside the cohabitation agreement as it applied to three development properties and granted judgment in favour of the respondent. On appeal, the appellant argued that the trial judge erred in setting aside the cohabitation agreement only as it applied to the development properties and in not setting aside the whole cohabitation agreement, including a waiver of support clause, and in calculating the amount owing under the terms of the property development agreement.

HELD: Appeal allowed in part. The trial judge’s decision to set aside the cohabitation agreement as inapplicable to the development properties was replaced with a decision to set aside other clauses of the cohabitation agreement. The appeal was otherwise dismissed. Section 56(4) of the Family Law Act permitted the court to set aside a domestic contract or a provision in it. This contemplated setting aside a contract or provision in its entirety. It did not permit the court to amend a domestic contract by providing that it did not apply to certain assets. The respondent also did not seek that relief at trial.

Moses Estate v. Metzer, [2017] O.J. No. 5151, Ontario Court of Appeal, A. Hoy A.C.J.O., G. Huscroft and D. Paciocco JJ.A., October 4, 2017. TLD-October162017005