Separation Agreement Requirements Under Ontario's Family Law Act

When a relationship ends, many people sign a document and assume it settles everything. In Ontario, whether that document can be enforced depends partly on how it was made, not only on what it says.

This article explains the formal requirements in section 55 of the Family Law Act, what else a court looks at, and the steps that help protect your agreement.

What a separation agreement is

A separation agreement is a type of domestic contract under the Family Law Act. Other domestic contracts include marriage contracts, cohabitation agreements, paternity agreements and family arbitration agreements.

Two people who lived together and are now living separate and apart may make an agreement setting out their rights and obligations, whether they were married or not. Separation itself needs no court order.

The formal requirements in section 55

Under section 55(1) of the Family Law Act, a domestic contract is unenforceable unless it meets three formal requirements. The same applies to an agreement that amends or rescinds a domestic contract.

• In writing: a verbal deal is not enough.
• Signed by the parties.
• Witnessed.

A court will relax the witness requirement only in limited circumstances, so it is risky to count on that. Ontario's Superior Court of Justice guide says sections 54 to 56 of the Family Law Act set out the basic requirements for a court to enforce a separation agreement.

For child support agreements, Ontario government guidance says the written agreement must be signed by both parents or caregivers in front of a witness.

Why a properly signed agreement can still be challenged

Meeting the formalities is only the first step. A court may set aside a domestic contract, or a provision in it, in three situations.

• A party failed to disclose significant assets, or significant debts or other liabilities, that existed when the contract was made.
• A party did not understand the nature or consequences of the contract.
• Otherwise in accordance with the law of contract.

The Court of Appeal for Ontario applies a two-stage test. One of the listed circumstances must be engaged, and then the court decides whether it is appropriate to use its discretion to set the agreement or provision aside, with fairness a relevant consideration. The Court has also said financial disclosure is a paramount consideration, and that the spouse who holds the assets is responsible for disclosing and valuing them.

Ontario guidance adds that each person should understand the terms and not be pressured to sign. If those conditions are not met, the agreement can be challenged in court. Still, it can be difficult to get a court to set an agreement aside, so do not treat that as a safety net.

Terms a court can still override

Some terms never fully escape the court's oversight, even if both of you agreed to them and signed correctly.

What to do next

• Get the agreement in writing and have every signature witnessed as the Act requires.
• Exchange complete financial information before signing, because non-disclosure is a ground to set an agreement aside.
• Have each person get legal advice before signing; each spouse should have their own lawyer review the agreement.
• If you want the Family Responsibility Office to enforce support, the agreement must first be filed with the Ontario Court of Justice or the Family Court of the Superior Court of Justice, and then registered with the Office.

A party to a domestic contract may file it with the court clerk with an affidavit that it is in effect and has not been set aside or varied. That affidavit is Form 26B under the Family Law Rules. Filing rules have been under amendment, so confirm the current steps with the court office or a lawyer.

Frequently asked questions