Can You Set Aside a Separation Agreement in Ontario? Valid Grounds

You signed a separation agreement, and now it feels wrong. Maybe you later found out about an account you did not know existed, or you felt you had no real choice. You want to know whether a court will undo it.

The short answer is that it can happen, but it is not easy. This article explains the grounds Ontario courts look at, how the court decides, which terms are treated differently, and what evidence tends to matter.

Why a signed agreement is hard to undo

A separation agreement is a type of domestic contract. It is made by two people who lived together and are now living separate and apart, whether they were married or not. If it is in writing, signed by the parties and witnessed, it is generally enforceable.

Ontario government guidance warns that it can be difficult to get a court to set aside a separation agreement. That is one reason the guidance recommends getting legal advice before signing. A court may set aside a whole domestic contract or only a provision in it, and the grounds are covered below.

The grounds in Family Law Act s. 56(4)

Section 56(4) of the Family Law Act lets a court set aside a domestic contract, or a provision in it, in three situations.

The Court of Appeal for Ontario has said financial disclosure is a paramount consideration, and that the spouse who holds the assets is responsible for disclosing and valuing them. If the other person hid or left out something significant, that is often the strongest starting point.

Pressure, understanding and the two-stage test

Ontario guidance says each person should understand the terms of a binding separation agreement and should not be pressured to sign. If those conditions are not met, the agreement can be challenged in court. How pressure or threats apply to your situation depends on the facts, so it is worth confirming with a lawyer.

The Court of Appeal for Ontario applies a two-stage test. First, one of the listed circumstances must be engaged. That alone is not enough. The court then decides whether it is appropriate to use its discretion to set the agreement, or a provision in it, aside, and fairness is a relevant consideration at that stage.

In practice, this means you need to show both what went wrong and why undoing the agreement, or part of it, is appropriate. A court can also set aside only a provision rather than the whole contract.

Terms that courts treat differently

Some terms can be reviewed even if the agreement is otherwise sound.

• Parenting terms: when deciding education, moral training, decision-making responsibility or parenting time, a court may disregard a provision if doing so is in the child's best interests.
• Child support: a court may disregard a child support provision that is unreasonable having regard to the child support guidelines and any other support provisions in the contract.
• Spousal support and waivers: a court may set aside a support provision or a waiver of support, even if the contract says otherwise, where it results in unconscionable circumstances, where the person it benefits qualifies for support from public money, or where support payments under the contract are in default.
• Property terms: these fall under the s. 56(4) grounds, such as non-disclosure or lack of understanding.

The Court of Appeal for Ontario treats the power to set aside an unconscionable support waiver as part of a spousal support application, and has noted that the Family Law Act sets no limitation period for that relief. In one Court of Appeal decision, a spousal support waiver in a cohabitation agreement was not set aside because there was no finding that the parties failed to understand or intend it, even though property clauses in the same agreement were set aside.

Gathering evidence and next steps

Financial disclosure in family court means information and documents about income, expenses, assets and debts. Form 13 is used in support-only cases, and Form 13.1 is used where property or debts are in issue. Gathering the records behind your own finances early can help you and a lawyer see what each side knew about income, assets and debts when you signed.

• Find your signed copy of the agreement and any drafts.
• Collect the financial information you were given before signing, and anything you have learned since.
• Gather bank, investment, property, business and pension records from around the signing date.
• Save emails, texts and notes that show how the agreement was negotiated and any pressure you felt.
• Write a timeline of when you learned about the problem.
• Note whether either of you had legal advice and who explained the terms.
• Speak with a family lawyer soon, because the right route and any time limits depend on what you are trying to change.

If you only want to change support going forward, an updated agreement or a court order may be the route when circumstances change, and any amending agreement must also be in writing, signed and witnessed.

Frequently asked questions