Waiving Spousal Support or Property Rights in an Ontario Agreement

Being asked to give up spousal support or property claims is a serious request. Once you sign, it can be very hard to undo, so it helps to know which rights people commonly waive and which ones courts will look at again.

This article explains the general rules in Ontario. It cannot tell you whether to agree, which depends on your facts.

What you can agree to

Two people who lived together and are now living separate and apart may make an agreement setting out their rights and obligations, whether married or not. Ontario guidance says spouses can divide property any way they agree, but the agreement cannot easily be changed later, and each spouse should have their own lawyer review it first.

To be enforceable, the agreement must be in writing, signed by the parties and witnessed. Property can be excluded from equalization by a domestic contract, and spouses can agree to a different split of the matrimonial home than the equal division that otherwise applies.

Spousal support waivers and their limits

Spousal support is not automatic. 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 waiver in a contract is not the end of the matter. A court may set aside a support provision, or a waiver of the right to support, 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.

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. Still, a waiver that both parties understood and intended may be upheld. In one case the Court of Appeal upheld a decision declining to set aside a support waiver in a cohabitation agreement, because there was no finding that the parties failed to understand or intend it.

In a divorce, the court considers any existing agreement about support, so a separation agreement is a factor but does not bind the court.

Terms the courts watch closely

• 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 interests.
• Child support: a court may disregard a child support provision that is unreasonable having regard to the child support guidelines and other support terms in the contract.
• Incorporation into an order: a court must not incorporate a child support agreement into an order unless satisfied it is reasonable under the guidelines.
• Pensions: a domestic contract cannot entitle the eligible spouse to more than 50% of the imputed value of a pension.
• Canada Pension Plan: only some spousal agreements can prevent a CPP credit split, such as those made before June 4, 1986 or certain agreements in other provinces, and Ontario is not among the listed provinces.

In short, you cannot safely assume a clause is final just because you signed it. These rules mean waivers of child-related rights are the least reliable.

When a court may set the whole agreement aside

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

That alone is not enough. The court then decides whether to use its discretion to set aside the agreement, and fairness is relevant. Ontario guidance warns it can be difficult to get a court to set aside a separation agreement, which is why advice before signing matters.

Financial disclosure is a paramount consideration, and the spouse who holds the assets is responsible for disclosing and valuing them.

What to do next

• Ask for full financial disclosure before you consider any waiver.
• Learn what you may be giving up, including the effect on a possible CPP credit split; common-law partners generally must apply within 48 months of starting to live apart.
• Ask whether a review date for support would suit you; agreements and orders may include one.
• Get your own legal advice before signing.
• Do not sign if you feel pressured or do not understand a term.
• Make sure it is signed and witnessed.

If you are common-law, remember that equalization does not apply to you, and any contribution claims are settled in the agreement. Whether a particular waiver is wise depends on your facts, so speak with a lawyer.

Frequently asked questions