Is a Separation Agreement Legally Binding in Prince Edward Island?

If you have separated and signed a written agreement, or you are about to, it is natural to ask whether it can really be enforced. The honest answer is that it depends on how it was made and what it says.

This article covers the parts of the picture that are well settled for Prince Edward Island families and points out where the details of your agreement and the current statute matter. A lawyer can read your actual document and tell you where it stands.

This article covers the law of Prince Edward Island.

What "legally binding" really means

A separation agreement is a written deal between spouses who have separated. It usually covers where the children will live, how much time each parent has, child support, spousal support and how property and debts are divided.

Whether a particular agreement can be enforced depends on what it says and how it was made. How this applies to your agreement depends on its terms and the circumstances, so it is worth confirming with a lawyer rather than relying on what a template says.

Terms about children get closer scrutiny

Parents can agree on a parenting plan, but a court asked to make a parenting order must give primary consideration to the child's physical, emotional and psychological safety, security and well-being. The court also gives effect to the principle that a child should have as much time with each parent as is consistent with the child's best interests, which is not a presumption of equal time.

Parenting for unmarried and separated parents is also covered by the provincial Children's Law Act, not only the federal Divorce Act. The old terms "custody and access" are no longer used. Instead, the law speaks of parenting time and decision-making responsibility.

The factors a court looks at under the Divorce Act include the child's needs and stability and each spouse's willingness to support the child's relationship with the other.

Money terms: support and income

Child support follows the Federal Child Support Guidelines. The presumptive amount is the table amount for the number of children, based on the paying spouse's income, plus any special or extraordinary expenses. The table used is the one for the province or territory where the paying parent lives.

If you and your ex agree in writing on what your income is, the court accepts that under section 15(1) only if it finds the amount reasonable. The Guidelines also let a court look at three years of income and impute income, for example for intentional under-employment.

These rules are why an agreement that sets support far from the usual figures may attract questions later.

An agreement is not a divorce

Signing a separation agreement does not end the marriage. A divorce requires breakdown of the marriage, which is shown either by living separate and apart for at least one year or by the respondent spouse having committed adultery or treated the other spouse with physical or mental cruelty that makes continued cohabitation intolerable. You can apply while living apart, but the full year must be complete before the divorce is granted.

If you try to reconcile, spouses are not treated as having interrupted the separation if they resumed living together for periods totalling not more than ninety days with reconciliation as the primary purpose. Justice Canada advises agreeing on child support, parenting, spousal support and property before applying, because unresolved issues lead to a longer, costlier court process.

What to do next

• Read every page of the draft and ask what each term means in practice.
• Make sure both of you have provided honest and complete information about income, assets and debts.
• Check that the child-related terms are focused on the children's needs and stability.
• Compare the proposed child support with the amount the Guidelines table would give for the payer's income.
• Do not sign under pressure or because of a deadline someone else set.
• Have a family lawyer review the agreement, ideally before you sign, and confirm the current Prince Edward Island requirements for it to be enforceable.

Frequently asked questions