Can a Separation Agreement Be Used for Divorce in Ontario?

You have signed a separation agreement, or you are about to, and now you are wondering whether it is enough to end the marriage. Many people assume that a signed agreement and a divorce are the same thing. They are not, though the two work well together.

This article explains how an existing agreement fits into an uncontested divorce in Ontario, what the court still looks at, and what to check before you file.

Separation, agreement and divorce are different things

Separation happens when a couple decides to live apart because the relationship has broken down. It needs no court order and applies to married and common-law couples. A divorce is when a court officially ends a marriage, and only married couples can divorce.

A separation agreement is a type of domestic contract. It can be made by two people who lived together and are now living separate and apart, whether they were married or not. So the agreement deals with your rights and obligations, while the divorce ends the marriage itself.

How the agreement fits into an uncontested divorce

Marriage breakdown is established if you have lived separate and apart for at least one year. Resuming cohabitation for a period, or periods totalling, no more than 90 days with reconciliation as its primary purpose does not interrupt that separation period.

If no court case has started, your written settlement is called a Separation Agreement. If a case has started, it is called Minutes of Settlement. A joint divorce application on agreed terms uses Form 8A and is supported by Form 36 (Affidavit for Divorce).

• The agreement does not replace the divorce application. You still need to apply.
• The court cannot grant the divorce until it receives a clearance certificate from the federal Central Registry of Divorce Proceedings.
• A divorce order takes effect 31 days after it is made, and either spouse can request a certificate of divorce as proof.

What the court can still look at

An agreement is strong, but it does not take every decision away from the court. The rules differ depending on the topic.

Separately, under the Family Law Act, 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 that it results in unconscionable circumstances, that the person it benefits qualifies for support from public money, or that support payments under the contract are in default. How this applies to your divorce depends on your situation, so it is worth confirming with a lawyer.

Turning the agreement into an order, and other effects

In a divorce, the court may award child support that differs from the guidelines amount if both spouses consent and reasonable arrangements have been made for the child. It must not treat an arrangement as unreasonable solely because the agreed amount differs from the guidelines. If you want support enforced through the Family Responsibility Office, 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 Family Responsibility Office.

An agreement also does not block a Canada Pension Plan credit split in Ontario. Only some agreements can do that, and Ontario is not among the listed provinces.

What to do next

• Find your signed, witnessed agreement and confirm it covers children, support and property.
• Note your separation date, since the one-year period matters.
• Check whether any term, such as child support, may need updating before you file.
• Ask a lawyer whether your agreement should be filed or incorporated into the divorce order.
• Gather your financial information in case the court asks for it.

A lawyer can confirm how your agreement should be presented in the divorce and whether anything in it is likely to be questioned.

Frequently asked questions