What if you enter into a bullet-proof cohabitation agreement containing the strongest possible immunity from attack on the grounds of support or property claim and then, years later, the judge decides he wants to re-assess the contract for its ‘fairness’?
In Kilitzoglou v Cure (2019) 143O.R.(3rd) 385 that is precisely what trial judge H.K. O’Connell did.
The domestic contract in that case was bullet-proof. It was signed in 2005, the boyfriend who owned everything, died in 2007. She was not in the will, only his daughters were in the will. The intention of the contract was clear. She gets nothing other than to reside as a tenant in the house for three years. This should have been doubly clear by her omission from the will.
Of course Kilitzoglou litigated that issue and lost. She he tried to litigate precisely the same issue again before O’Connell J. The learned trial judge should have thrown the case out with costs against Kilitzoglou. Naturally, he didn’t – this being a family law case, there is always reason to import a ‘fairness’ analysis. The trial judge said the daughters were acting in ‘bad faith’ because they tried to sell their father’s house after the three year period of Kilitzoglou’s tenancy was finished.
Thankfully once again, the Ontario Court of Appeal stepped in and said No!: The contract was clear. It was the father’s house. He left it to the daughters, not Kilitzoglou. Kilitzoglou signed a cohabitation agreement which clearly spelled out that the totality of her rights after his death was to stay as a tenant for three years. The trial judge had no business ignoring the cohabitation agreement by fixating on his ‘fairness’ analysis.
