The Court of Appeal refuses to apply the common law rule of conciliation to annul a cohabitation agreement

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The Ontario Court of Appeal, ruling favorably on the appellant’s appeal and awarding him costs in the amount of $ 2,500, quashed the motions judge’s declaration and replaced it with a declaration that the rights and obligations of the parties were governed by the cohabitation agreement.

The Court of Appeal described the common law rule, which states that a separation agreement becomes void upon reconciliation of the parties unless the agreement expressly or implicitly provides for it, as dating from a time when there were very different views on marriage, cohabitation, separation and divorce. . The Court of Appeal noted that the common law rule is not absolute and depends on an interpretation of the intentions of the parties, as evidenced by the entire agreement.

The appeals court, reading the agreement as a whole and in the context of the relations between the parties at the time of signing, ruled that the agreement was intended to apply despite a separation and subsequent reconciliation preceding the final separation . The agreement, which uses broad language and was meant to be lasting, provided for marriage, divorce, separation, death and cohabitation in general, including cohabitation after separation and reconciliation, the court found. call.

A reading of the agreement could conclude that the agreement would apply if the parties cohabitated under all circumstances and the payment of $ 5,000 was intended to help the respondent move into her own accommodation, the court said, adding that private arrangements regarding the division of property on a relationship breakdown should be respected, especially if independent legal advice was sought during the negotiation.

“Undoubtedly, it would have been preferable for the cohabitation agreement to contain specific provisions dealing with the possibility of separation and reconciliation, rendering this interpretation process unnecessary”, wrote Judge Gladys Pardu for the Court of Appeal.


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