Ottawa Divorce .com Forums


User CP

New posts

Advertising

  Ottawa Divorce .com Forums > Main Category > Divorce & Family Law

Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

Reply
 
Thread Tools
  #1  
Old 04-03-2020, 12:28 PM
Beaudoin Beaudoin is offline
Member
 
Join Date: Apr 2007
Posts: 59
Beaudoin is on a distinguished road
Default Electronic Signatures

Hi.

Does anyone know if electronic signatures are valid and court enforceable for separation agreements?
Reply With Quote
  #2  
Old 04-04-2020, 12:41 PM
Kinso Kinso is offline
Senior Member
 
Join Date: Sep 2015
Posts: 213
Kinso is an unknown quantity at this point
Default

Alright let's figure this out.

S.55 of the Family Law Act, R.S.O. 1990, c. F.3 (https://www.ontario.ca/laws/statute/90f03) states:

Quote:

55 (1) A domestic contract and an agreement to amend or rescind a domestic contract are unenforceable unless made in writing, signed by the parties and witnessed. R.S.O. 1990, c. F.3, s. 55 (1).
From the legislation a domestic contract (including separation agreements) must be:
  • in writing;
  • signed by the parties; and
  • witnessed.

Now, the Electronic Commerce Act, 2000, S.O. 2000, c. 17 (https://www.ontario.ca/laws/statute/00e17) provides some assitance:

Quote:
s.1. definitions -

“electronic” includes created, recorded, transmitted or stored in digital form or in other intangible form by electronic, magnetic or optical means or by any other means that has capabilities for creation, recording, transmission or storage similar to those means and “electronically” has a corresponding meaning; (“électronique”, “par voie électronique”)

“electronic signature” means electronic information that a person creates or adopts in order to sign a document and that is in, attached to or associated with the document; (“signature électronique”)

s.5 A legal requirement that information or a document be in writing is satisfied by information or a document that is in electronic form if it is accessible so as to be usable for subsequent reference. 2000, c. 17, s. 5.
This allows an electronic copy of a document to be as valid as a physical copy.

Quote:
11 (1) Subject to subsections (3) and (4), a legal requirement that a document be signed is satisfied by an electronic signature. 2000, c. 17, s. 11 (1).
This allows an electronic signature to be equal to a physical signature (subject to certain restrictions).

So, the above covers the digital form of the document, and the digital form of the signature, but what about the witnesses?

The Succession Law Reform Act (https://www.ontario.ca/laws/statute/90s26#BK5) which governs Wills, requires the witnesses (of which there must be two) to be in the presence of the testator. However, this 'presence' requirement does not appear in the Family Law Act legislation.

As such, if you used software such as DocuSign where:

- The domestic contract was in writing;
- Both parties signed; and
- Two 'witnesses' signed (who I guess are witnessing the digital signing process)

This may meet the legislative requirements of a domestic contract.

I would also reference Virc v. Blair, 2014 ONCA 392 from paragraphs 77-81 where the Court of Appeal affirms a more 'relaxed' standard of the witnessing requirement. (http://canlii.ca/t/g6v7z) In that case it was found acceptable that the witnesses did not sign concurrently with the parties.

Ultimate answer: it seems digital signatures and digital witnesses are probably ok. However, it would be nice to have this affirmed explicitly by the courts.

Naturally this is all in addition to full financial disclosure and independent legal advice.

Last edited by Kinso; 04-04-2020 at 12:45 PM.
Reply With Quote
Reply


Currently Active Users Viewing This Thread: 1 (0 members and 1 guests)
 
Thread Tools

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is On


Similar Threads
Thread Thread Starter Forum Replies Last Post
Finding witnesses to signatures MMMarie Divorce & Family Law 4 02-27-2006 08:53 PM
Witnessing signatures MMMarie Financial Issues 4 02-25-2006 01:21 AM


All times are GMT -4. The time now is 12:38 PM.