Changing a Separation Agreement After Signing in Ontario

A job loss, a move, a new baby, a child's changing needs: life rarely stays the same after a separation agreement is signed. Many people then ask whether the agreement can be changed, and how.

This article walks through the two main routes, agreeing on a change together or asking a court, and explains in general terms which kinds of terms are more or less open to change. Details depend on what your agreement says and on your facts.

Start with the agreement and the starting point

Ontario states plainly that you cannot easily change a separation agreement later. Ontario's guidance also says each party should get independent legal advice before signing a separation agreement. Still, some parts of an agreement can be revisited, and some changes can be made if both of you agree.

Read your agreement closely. It may say how and when terms can be reviewed, for example support reviews at a set date. How a court might treat a particular term depends on your situation, so it is worth confirming your options with a lawyer.

Changing terms by agreement

If you and your former spouse agree on a change, put it in writing. An agreement to amend or rescind a domestic contract is unenforceable unless it is made in writing, signed by the parties and witnessed. A casual text exchange or verbal understanding is risky.

Each of you should consider getting your own legal advice on the amendment, as with the original agreement. If a court case is involved, a written agreement is called minutes of settlement rather than a separation agreement.

Where the change affects spousal support and you both agree, the consent route is a consent motion to change, Form 15C. In general, final orders are changed by Form 15 (Motion to Change), Form 15C where the parties consent, and Form 15D for child support only, by consent. Mediation can help you reach agreement; it is voluntary and closed (confidential) unless both parties agree it is open, and a mediator does not replace a lawyer.

Changing terms through court

If your former spouse will not agree, you may need to ask a court. For spousal support, the spouse who disagrees means filing a motion to change, Form 15. You must serve it within 30 days of issuing and file an Affidavit of Service, Form 6B. The other party then has 30 days to respond, or 60 days if outside Canada or the U.S..

Under the Divorce Act, a court can order lump-sum or periodic spousal support, and the factors it considers include length of cohabitation, each spouse's functions during cohabitation, and any existing support arrangements. The amount of support depends on factors including income difference, children, ages and health. The Spousal Support Advisory Guidelines are only guidelines.

A separate path exists if you think the agreement should never have stood in the first place. A court may set aside a domestic contract on grounds such as non-disclosure of significant assets or debts, or not understanding the contract, and then decides in its discretion. That is different from varying a term because circumstances changed.

Which terms are more likely to be reviewed?

For child support, the payor must give proof of income, a tax return and notice of assessment, every year. Retroactive child support generally runs from the date of effective notice, which can be raising the issue without legal action, and it is usually inappropriate to go back more than three years before formal notice. So raising a needed change early can matter.

The online Child Support Service is not available to people who earn more than $150,000 or less than $12,000 annually, or where the recalculated amount includes post-secondary education expenses.

What to do next

• Re-read your agreement for review clauses, dates and notice requirements.
• List what has changed (income, residence, children's needs, health) and when.
• Gather proof: income tax returns, notices of assessment, pay stubs, and any new expenses.
• Raise the issue in writing with your former spouse so there is a record of the date.
• If you agree, have the amendment drafted, signed and witnessed, and get independent legal advice.
• If you disagree, speak with a family lawyer before filing a motion to change, and keep the 30-day service deadline in mind.
• Use a Family Law Information Centre for general information and options outside court; staff do not give legal advice.

Frequently asked questions