How to Change or Amend a Separation Agreement in Ontario

Life does not stop when a separation agreement is signed. Incomes change, children grow older, someone moves or remarries, and terms that made sense at the time can start to feel unworkable. Many people wonder whether the agreement is locked in forever.

The answer depends on what you want to change and whether the other person is willing to go along with it. This article explains the main routes: changing the agreement by consent, asking a court for a change, and the narrower step of asking a court to set an agreement aside.

The three main routes

Most requests to change a separation agreement fall into one of these paths:

• Agree on the change together and sign a written amendment.
• Ask for a court order to change support terms when circumstances have changed.
• Ask a court to set aside the agreement or one of its terms because of a problem with how it was made.

The first route is usually the simplest because nobody has to prove anything to a judge. The other two involve a court and depend heavily on your facts.

Changing the agreement by consent

If you and your former partner agree on a new term, put it in a written amendment. In Ontario, a domestic contract, or an agreement to amend or rescind one, is unenforceable unless it is in writing, signed by the parties and witnessed, although a court will relax the witness requirement only in limited circumstances. Ontario guidance says an amending agreement must meet the same requirements. A casual email exchange or a verbal understanding is risky, because it may not be enforceable.

Take the amendment as seriously as the original. Ontario guidance says each spouse should have their own lawyer review a separation agreement before signing, and that the agreement cannot easily be changed later. If you are stuck on a point, a neutral family mediator can help you negotiate, though a mediator does not take sides or give legal advice. To make a mediated agreement legally binding, each party should get advice from a different lawyer before signing.

What can be changed, and how

Different kinds of terms are treated differently. This table gives a general picture only.

Where the Divorce Act applies, the Federal Child Support Guidelines allow a paying spouse to be asked in writing for updated income documents, but not more than once a year after the order is made, for as long as the child remains a child under the Guidelines. If you are not divorcing, a different set of guidelines may apply, so it is worth confirming which rules fit your situation. A court can also disregard a child support term that is unreasonable having regard to the child support guidelines.

Moves, support waivers and other special situations

If a parent plans to move, a person with decision-making responsibility or parenting time who intends a relocation must notify others with decision-making responsibility, parenting time or contact at least 60 days before the expected move date. For divorcing spouses, federal guidance under the Divorce Act says a parent who disagrees with a proposed move has 30 days after receiving the notice to object, using the Objection to Relocation form or by applying to court. A court may waive or modify the notice requirements for divorcing spouses where there is a risk of family violence.

Spousal support waivers have their own rule. A court may set aside a support provision or a waiver of support even if the contract says otherwise, where it results in unconscionable circumstances, where the person it benefits qualifies for support from public money, or where 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. In one case, the Court of Appeal for Ontario upheld a decision not to set aside a spousal support waiver where there was no finding that the parties failed to understand or intend it. Even a waiver both people understood can still be set aside on the grounds above, so how this applies depends on your situation and is worth confirming with a lawyer.

Changing versus setting aside

Setting aside is a different request from varying a term because of new circumstances. Under the Family Law Act, a court may set aside a domestic contract, or a provision in it, if a party failed to disclose significant assets or debts that existed when the contract was made, if a party did not understand the nature or consequences of the contract, or otherwise in accordance with contract law.

Even when one of those situations is shown, the court then decides whether it is appropriate to use its discretion, and fairness is a relevant consideration. The Court of Appeal for Ontario has said financial disclosure is a paramount consideration and that the spouse who holds the assets is responsible for disclosing and valuing them. Ontario guidance also says each person should understand the terms and not be pressured to sign, and that an agreement can be challenged if those conditions were not met. Still, it can be difficult to get a court to set an agreement aside.

What to do next

• Re-read the agreement and note exactly which term no longer works.
• Write down what changed, such as income, parenting schedule, address or relationship status.
• Gather your current income documents and the original financial information.
• Decide whether the other person is likely to agree to an amendment.
• Speak with a lawyer before signing any amendment or starting a court step, since time limits and the right route depend on your facts.

Frequently asked questions