Spousal Support Terms and Waivers in Ontario Separation Agreements

A spousal support waiver says one spouse will not claim support from the other. It may be appealing when you want a clean break, or when the other person asks you to give it up in exchange for something else.

Waivers are not always final in Ontario, but they are not easily undone either. This article explains how spousal support works in an agreement, when courts disregard a waiver and what to consider before you sign. It is general information, not advice on your situation.

Are you entitled to spousal support at all?

Spousal support is not automatic on separation or divorce. A person may be entitled if they were married, lived together as a couple for at least three years, or were in a relationship of some permanence and had a child together.

A separation agreement applies to married and unmarried couples alike, as long as they lived together and are now living separate and apart. Knowing whether you would likely qualify for support helps you decide what a waiver is really giving up.

Setting an amount and a review date

The Spousal Support Advisory Guidelines are not law, but lawyers and judges often use them to help decide how much spousal support should be paid. An agreement or order may include a review date for checking whether support should change or end.

Support terms can also be changed by an updated agreement or by a court order if circumstances change, for example a change in income or remarriage. Any amending agreement must be in writing, signed and witnessed.

If a divorce follows, the court considers any existing agreement about support when making a spousal support order, so your separation agreement is a factor but does not bind the court.

When a court may disregard a waiver

A court may set aside a support provision, or a waiver of the right to support, in a domestic contract, even if the contract says otherwise. The grounds are:

• The provision or waiver results in unconscionable circumstances.
• The person it benefits qualifies for support from public money.
• Support payments under the contract are in default.

The Court of Appeal for Ontario treats this power as part of a spousal support application, and has noted that the Family Law Act sets no limitation period for that relief.

A court can also set aside a domestic contract, or a provision in it, in other situations: a party failed to disclose significant assets or debts that existed when the contract was made, a party did not understand the nature or consequences of the contract, or otherwise in accordance with the law of contract.

Why you should not count on undoing a waiver

The Court of Appeal applies a two-stage test. First, one of the listed circumstances must be engaged. That alone is not enough, because 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.

The Court of Appeal has also upheld a trial decision declining to set aside a spousal support waiver in a cohabitation agreement, where there was no finding that the parties failed to understand or intend the waiver. Ontario guidance warns that it can be difficult to get a court to set aside a separation agreement.

Disclosure matters a great deal. The Court of Appeal has said that financial disclosure is a paramount consideration, and that the spouse who holds the assets is responsible for disclosing and valuing them. In family court, disclosure means giving information and documents about your income, expenses, assets and debts.

What to do next

• Get full financial disclosure from the other spouse, and give yours.
• Make sure you understand the terms and are not pressured to sign. If these conditions are not met, the agreement can be challenged in court.
• Consider a review date instead of a permanent waiver.
• Have your own lawyer review the agreement. Ontario guidance recommends that separating spouses each have their own lawyer.
• Sign in front of a witness so the agreement is enforceable.

If support will be paid, filing the agreement with the court and registering it with the Family Responsibility Office lets that office enforce the support terms.

Frequently asked questions