Separation Agreement vs Divorce Order in Ontario: Which Do You Need?

Many people sign a separation agreement and assume the legal side of the breakup is finished. Others are told they need a divorce and wonder whether the agreement they already signed counts. The two documents do different jobs, and mixing them up can leave you married when you thought you were not, or unprotected on support and property.

This article explains in plain language how a separation agreement and a divorce differ, what each can and cannot do, and how to think about which one fits your situation. It is general information for Ontario, not advice on your own facts.

Two different things: a contract and a court order

A separation agreement is a contract between spouses. It is one of five kinds of domestic contract recognized in Ontario. You and your spouse decide the terms together, usually covering things like support, property and debts, and arrangements for children.

A divorce is different. It ends the marriage itself, and a separation agreement is not a divorce and is not a step the Divorce Act requires. Only a court can grant a divorce.

What a divorce requires

Under the federal Divorce Act, divorce is granted on one ground only: breakdown of the marriage. Breakdown is established if you have lived separate and apart for at least one year immediately before the divorce is determined and were still separated when the proceeding began. The other routes are adultery or cruelty that makes living together intolerable.

Spouses are treated as living separate and apart for any period when they lived apart and at least one of them intended to live separately. The period is not interrupted by resumed cohabitation of up to 90 days that was aimed mainly at reconciliation.

There is also a residency rule. A court can hear a divorce application if either spouse has been habitually resident in the province for at least one year before the application.

What a separation agreement can do that a divorce alone does not

Under the Divorce Act, a court can order child support, and it must make that order in accordance with the applicable guidelines. A court making a spousal support order must consider each spouse's condition, means, needs and other circumstances. On parenting matters, the court considers only the best interests of the child. Property is a separate question. An agreement lets you divide property as you choose, rather than leaving it to the default rules.

• Support: spousal support is not automatic on separation or divorce, so an agreement can set out whether it is paid, how much, and when it ends or is reviewed.
• Property: married spouses must generally split property acquired during the marriage equally, but an agreement can set a different division.
• Flexibility: an agreement may include a review date and may end support on events such as remarriage or retirement.
• Cooperation: the Divorce Act says that, where appropriate, parties should try to resolve matters through negotiation, mediation or collaborative law.

An agreement is also hard to change later, and each spouse should have their own lawyer review it. Only a court can change a support order or a domestic contract. To change a contract, the parties negotiate a new one and file it with the court.

When you need one, the other, or both

If you want to be free to remarry, you need a divorce, because only a court can grant one. If you only want clear, written terms for support, property and the children, an agreement may do much of that work without a divorce. Many couples do both: they sign an agreement and later apply for divorce once the one-year separation is met.

Timing can matter. To go to court over an equalization payment, the deadline is six years from separation or two years from the final divorce, whichever comes first. That means finalizing a divorce can start a shorter clock for property claims between married spouses, so it is worth checking before you apply.

If you want the Family Responsibility Office to collect support under your agreement, the agreement must be registered. You file it with the Ontario Court of Justice or the Superior Court of Justice using form 26B, then send FRO the contract, the court-signed 26B and a completed registration package.

What to do next

• Write down your date of separation and whether anyone has tried to reconcile since.
• List what you want settled: support, property and debts, and parenting.
• Gather your last three years of income tax returns, since these are the usual benchmark for income disclosure.
• Decide whether you want a divorce now, later, or not at all, and check any property deadlines.
• Have a lawyer review any draft agreement before you sign it.

A lawyer can confirm how an agreement and a divorce would work together in your circumstances.

Frequently asked questions