Separation Agreements in Ontario: Everything You Need to Know

What Is a Separation Agreement?

A separation agreement is a written contract between two spouses who have decided to live separate and apart. It is governed by Ontario’s Family Law Act and, if properly executed, is legally binding on both parties. It can be entered into by married couples or common law partners.

What Can a Separation Agreement Cover?

• Division of property, including the matrimonial home, investments, and personal property.
• Equalization of net family property.
• Spousal support — whether it will be paid, by whom, in what amount, and for how long.
• Parenting arrangements — who has decision-making authority and the schedule for parenting time.
• Child support — consistent with the Child Support Guidelines.
• Division of debts and liabilities.
• Management or sale of the matrimonial home.
• Division of pension assets.

Requirements for a Valid Separation Agreement

Under the Family Law Act, a domestic contract (including a separation agreement) must be in writing, signed by both parties, and witnessed. While the Act does not require both parties to have independent legal advice, courts look favourably on agreements where each party received legal advice. In fact, without independent legal advice, an agreement may be more vulnerable to being set aside.

Why Independent Legal Advice Matters

Independent legal advice (ILA) means each party receives advice from their own separate lawyer before signing the agreement. This helps ensure that both parties fully understand the terms of the agreement and the rights they may be giving up. An ILA certificate, signed by each lawyer, is often attached to the agreement.

Can a Separation Agreement Be Set Aside?

Yes, under certain circumstances. A court may set aside a separation agreement if there was a failure to disclose significant assets or debts, if one party did not understand the nature or consequences of the agreement, if there was duress, undue influence, or fraud, or if the terms relating to children are not in their best interests. This is another reason why full financial disclosure and independent legal advice are so important.

Can a Separation Agreement Be Changed?

Yes. The parties can agree to vary the terms of a separation agreement by executing a new written agreement. Courts can also vary provisions relating to child support and, in some cases, spousal support if there has been a material change in circumstances. Provisions relating to property division are generally final once settled.

Do You Need a Separation Agreement to Get Divorced?

No. A separation agreement is not a legal prerequisite for obtaining a divorce in Ontario. However, having a separation agreement in place before applying for divorce can make the process much smoother and less contentious. The divorce order and separation agreement are separate legal documents.

Separation Agreement vs. Court Order

A separation agreement is negotiated between the parties, while a court order is issued by a judge. Court orders are also binding but are typically sought when the parties cannot reach agreement. In many cases, a separation agreement can be incorporated into a court order, giving it the enforceability of a court order.