Can a Separation Agreement Waive Spousal Support in Ontario?
Yes, you can agree to give up spousal support in an Ontario separation agreement, but a court does not always hold you to it. Two people who lived together and now live separate and apart, married or not, can make an agreement setting out their rights and obligations. To be enforceable, it must be in writing, signed by both parties and witnessed.
A court can set aside a support waiver, even if the contract says otherwise, if it results in unconscionable circumstances, if the person it benefits qualifies for support from public money, or if payments under the contract are in default. The Court of Appeal for Ontario has noted that the Family Law Act sets no limitation period for that relief. Separately, a court may set aside an agreement for non-disclosure of significant assets or debts, or a failure to understand its consequences, but then decides whether to do so. In a divorce, the agreement is one factor the court considers but does not bind the court.
In one case, the Court of Appeal upheld a refusal to set aside a spousal support waiver where there was no finding the parties failed to understand it. Because setting an agreement aside can be difficult, legal advice before signing is a good idea.
Key takeaways
- A separation agreement must be in writing, signed by the parties and witnessed, or it is unenforceable.
- A court may set aside a support waiver, even if the contract says otherwise, if it results in unconscionable circumstances, the person benefiting qualifies for public support, or payments are in default.
- An agreement can also be challenged if a party failed to disclose significant assets or debts or did not understand its consequences, and the court then decides whether to use its discretion.
- In one case the Court of Appeal upheld a refusal to set aside a spousal support waiver, and legal advice before signing is a good idea because it can be difficult to get a court to set an agreement aside.