Can You Write a Separation Agreement Without a Lawyer in Ontario?

If you and your former partner get along, writing your own agreement can look like a sensible way to save time and effort. Ontario law does allow it, but the document still has to meet legal standards and it is not easy to change if you later regret a term.

This article sets out what you can do on your own, where the risks sit, and the safeguards that help a self-drafted agreement hold up.

What the law allows

Ontario guidance says you do not need a lawyer to make a separation agreement. It also says legal advice before signing is a good idea, because it can be difficult to get a court to set an agreement aside.

If you do draft it yourselves, the formalities still apply. A domestic contract is unenforceable unless it is in writing, signed by the parties and witnessed. A court will relax the witness requirement only in limited circumstances.

The main risks of going without advice

• Hard to undo: the agreement cannot easily be changed later, and spouses can divide property any way they agree.
• Missing disclosure: a court may set aside a contract where a party failed to disclose significant assets, or significant debts or other liabilities, that existed when it was made.
• Misunderstanding: a court may set it aside if a party did not understand its nature or consequences.
• Pressure: each person should understand the terms and not be pressured to sign, otherwise the agreement can be challenged.

Set-aside is a two-stage question. A listed circumstance must be engaged, and the court then decides whether to use its discretion, with fairness relevant. The Court of Appeal for Ontario has also said the spouse who holds the assets is responsible for disclosing and valuing them.

Terms you cannot fully control

Even a well-drafted agreement does not bind a court on everything. A court may disregard a parenting provision if doing so is in the child's best interests. It may disregard a child support provision that is unreasonable having regard to the child support guidelines.

A court may also set aside a support provision or a waiver of the right to support if it results in unconscionable circumstances, the person it benefits qualifies for support from public money, or support payments under the contract are in default. Under the Divorce Act, a separation agreement about spousal support is a factor the court considers but does not bind the court.

Child support amounts and expenses such as child care or post-secondary education follow rules in the child support guidelines. Getting these terms wrong is a common reason to ask a lawyer to review the draft.

Safeguards for a do-it-yourself agreement

• Exchange full financial information: income, expenses, assets and debts. In family court this is called financial disclosure.
• Consider mediation. A neutral mediator helps you negotiate your own agreement but does not decide, take sides or give legal advice.
• Get independent legal advice before signing. Each party should get advice from a different lawyer to make a mediated agreement legally binding.
• Avoid one lawyer for both of you. A lawyer acting for more than one client must explain that information cannot be kept confidential from the others, and Ontario guidance recommends separating spouses each have their own lawyer.
• Sign in front of a witness.

What to do next

A practical middle path is to work out the terms together, then have each of you pay for a lawyer to review the draft before anyone signs. That keeps your effort low while testing the points a court would look at.

If support is involved, remember that the Family Responsibility Office can enforce it only if the agreement is first filed with the Ontario Court of Justice or the Family Court of the Superior Court of Justice and then registered. Later changes to support also need a written, signed and witnessed amending agreement, or a court order.

Frequently asked questions