Is a Separation Mediation Agreement Binding in Ontario?

You sat down with a mediator and reached a deal. Now you want to know if the other person can be held to it, and whether you can. The answer depends on what happens after the mediation session ends.

This article explains how a mediated agreement becomes binding in Ontario, the steps that matter most, and the situations in which a court may set one aside.

The mediator's write-up is a starting point

The mediator writes up what the parties agreed. A mediator does not make decisions or give legal advice, and does not take the place of a lawyer. To make the agreement legally binding, Ontario advises that each party get advice from a different lawyer before signing.

So a mediation summary or memorandum of what was discussed is generally a step toward an agreement, not the final word.

Ontario describes mediation as a negotiation between two people with help from a mediator, who does not take sides. A few features of the process are worth knowing:

• The mediator screens the parties at intake and throughout the process to make sure both are in an equal negotiating position.
• Court-connected mediators must have 60 hours of family mediation training and 21 hours of intimate partner violence education or training, including screening for intimate partner violence.
• Court-connected on-site mediation is free on the day your matter is scheduled in court, while off-site mediation may carry user fees on a scale based on income and number of dependents.

If you are in a divorce proceeding, the parties must try to resolve the matters through a family dispute resolution process to the extent that it is appropriate. This is a process outside court, such as negotiation, mediation and collaborative law. A legal adviser must encourage it unless the circumstances make it clearly inappropriate, such as where there is family violence.

What the Family Law Act requires

A domestic contract, such as a separation agreement, or an agreement to amend or rescind one, is unenforceable unless it is made in writing, signed by the parties and witnessed.

When a court can set an agreement aside

A court may, on application, set aside a domestic contract or a provision in it. Grounds include a party's failure to disclose significant assets and a party not understanding the nature or consequences of the contract.

This is why financial disclosure and legal advice matter even in a friendly mediation. A deal built on incomplete information is more exposed to challenge. Other grounds and the likelihood of success depend on the facts, so a lawyer can assess your situation.

Enforcing support terms, and how arbitration differs

A party to a domestic contract may file it with the clerk of the Ontario Court of Justice or the Family Court so that its support provisions can be enforced.

Arbitration is different from mediation, because an arbitrator decides. A family arbitration award is enforceable only if the arbitration agreement is in writing and complies with the regulations, each party receives independent legal advice before making the agreement, and the Arbitration Act, 1991 requirements are met. An agreement to arbitrate is unenforceable unless it is entered into after the dispute has arisen. An award based on religious principles is not a valid family arbitration award.

Before any family arbitration starts, a professional trained to recognize the signs of domestic violence and power imbalances must interview each party separately, and the screening report must be given to the arbitrator before the arbitration can begin. For a secondary arbitration conducted under a separation agreement, court order or earlier arbitration award, the parties do not need to get independent legal advice again.

Members of an arbitral tribunal must not conduct any part of the arbitration as a mediation or conciliation process, or other similar process, that might compromise their ability to decide impartially. If you are considering a combined mediation and arbitration arrangement, it is worth having a lawyer explain how it would work.

A party entitled to enforcement may apply to the court. Support provisions can be filed using Form 26D with the Superior Court of Justice or the Family Court, together with the legal advice certificates and the arbitration agreement, and awards cannot be enforced unless both sides received legal advice.

A party who wants to appeal an arbitration award or have it set aside must start the process within 30 days after receiving the award.

What to do next

• Do not treat the mediator's summary as final until it is a signed, witnessed agreement.
• Make sure full financial disclosure was exchanged before you sign.
• See your own lawyer to review the agreement before signing.
• Ask whether the support terms should be filed with the court.
• Keep copies of the signed agreement and your disclosure documents.

Family Law Information Centres at family courts give free court forms and general information about procedure, along with information about mediation and referrals. Their staff give information, not legal advice. Low-income people may get free legal advice at court from Legal Aid Ontario advice lawyers and duty counsel.

If you have already signed and have concerns, speak with a lawyer promptly about your options.

Frequently asked questions