- A separation agreement is unenforceable unless it is in writing, signed by the parties and witnessed.
- Once a domestic contract is filed with the court, its support provision can be enforced as if it were a court order, varied or recalculated.
- A court may disregard an agreed child support provision if it is unreasonable having regard to the child support guidelines.
Many separating parents settle child support in a separation agreement instead of going to court. Others get a court order. Both can work, but they are not the same, especially when a payment is missed or circumstances change.
This article compares the two in plain language: what makes an agreement valid, what filing it does, how enforcement works, and how each can be changed. It is general information, not advice on your own situation.
What makes a separation agreement enforceable
Domestic contracts, including separation agreements, are unenforceable unless they are in writing, signed by the parties and witnessed. A verbal deal, or a text exchange that was never signed and witnessed, is a weak foundation.
Even a valid agreement does not bind a court on child support in every case. When deciding child support, a court may disregard the agreement's child support provision if it is unreasonable having regard to the child support guidelines. Courts setting support must follow the guidelines.
Divorcing parents are in a slightly different position when the amount is first set. Under the Divorce Act, on both spouses' consent a court may order an amount different from the guideline amount if reasonable arrangements have been made for the child's support, and an arrangement is not unreasonable solely because the amount differs from the guidelines.
Filing an agreement with the court
A party may file a domestic contract with the clerk of the Ontario Court of Justice or the Family Court of the Superior Court of Justice, with an affidavit (Form 26B). Once filed, the support provision can be enforced as if it were a court order, varied under section 37 of the Family Law Act, or recalculated.
Filing is therefore a step worth discussing with a lawyer if you are relying on an agreement for support.
Enforcement: FRO and the court
A support order filed with the Family Responsibility Office (FRO) is enforced by the Director, and once it is filed no one other than the Director may enforce it. Orders made in court are automatically filed with FRO.
FRO's tools for missed payments include suspending the driver's licence, suspending federal licences including the passport, deducting from federal government payments, reporting to the credit bureau, placing liens on property, and default hearings.
Parents can leave FRO if they both want to. Withdrawal requires a written notice signed by both the recipient and the payor. If the payor is behind, the recipient alone may withdraw the order. Once withdrawn, the Director must stop enforcing it, and either party may later re-file it by signed written notice, with FRO saying each party will pay a $50 re-filing fee. While a case is registered, the payor must pay through FRO, not directly.
| Feature | Signed agreement | Filed agreement or court order |
|---|---|---|
| Validity | Must be written, signed and witnessed | Filed agreement: same requirement |
| Enforced like a court order | Once filed with the court | Yes, as a filed agreement or an order |
| FRO | How FRO applies to your agreement depends on your situation, so it is worth confirming with a lawyer. | Orders made in court are automatically filed with FRO, and an order filed with FRO is enforced by the Director |
Changing child support later
Where there has been a change in circumstances under the guidelines, or new evidence is available, a court may discharge, vary or suspend child support, prospectively or retroactively. It may also relieve the payor from paying part or all of the arrears or interest. A filed agreement's support provision can be varied under section 37.
If you are asking to change a support order, a motion to change must include a current schedule of arrears from FRO, served with the financial statement.
Ending support is a separate question. Ontario does not end child support automatically when a child turns 18. An order or agreement can set an end date or a terminating event, and if it is silent, both parties must agree to end payments, or a judge decides.
What to do next
- Check that your agreement is in writing, signed by both parties and witnessed.
- Ask a lawyer whether the child support amount fits the guidelines, since a court may disregard an unreasonable provision.
- Consider whether to file the agreement with the court and what Form 26B involves.
- If an order is registered with FRO, make payments through FRO.
- Keep records of payments and any changes in income or circumstances.
- Get advice before withdrawing from FRO or agreeing to changes informally.
Frequently asked questions
Is child support in a separation agreement enforceable?
It must be in writing, signed by the parties and witnessed to be enforceable. Even then, a court may disregard the child support provision if it is unreasonable having regard to the guidelines.
What does filing an agreement with the court do?
Once filed, the support provision can be enforced as if it were a court order, varied under section 37, or recalculated.
Can we leave FRO if we both agree?
Withdrawal requires a written notice signed by both the recipient and the payor. If the payor is behind, the recipient alone may withdraw the order. Either party may later re-file, and FRO says each pays a $50 re-filing fee.
Can a court change support if our circumstances change?
Yes. Where there has been a change in circumstances under the guidelines, or new evidence is available, a court may discharge, vary or suspend child support. It may also relieve the payor from part or all of the arrears or interest.
Sources
- Family Law Act, R.S.O. 1990, c. F.3 (e-Laws) — Ontario e-Laws
- Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) — Justice Laws (federal)
- Ontario.ca – Paying and receiving child and spousal support — ontario.ca
- Family Responsibility and Support Arrears Enforcement Act, 1996 (e-Laws) — Ontario e-Laws
- Ontario.ca – Child and spousal support (FRO) — ontario.ca
- Ontario.ca – Enforcing child and spousal support payments — ontario.ca
- O. Reg. 114/99 Family Law Rules (e-Laws) — Ontario e-Laws
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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