How does what we agreed in mediation become binding?

The memorandum of understanding is not the agreement

At the end of mediation the mediator writes a memorandum of understanding: a plain summary of what you agreed on parenting, support and property. It is usually marked as not binding and without prejudice, and it is meant to be. Its job is to give your lawyers a clear record to draft from and to give you something to review calmly outside the room.

Do not sign a memorandum expecting it to hold. Domestic contracts in Ontario have formal requirements, and a mediator's summary rarely meets them or contains the releases, definitions and enforcement clauses a separation agreement needs. Treat it as the blueprint and let the agreement be built from it.

What section 55 requires

Section 55(1) of the Family Law Act says a domestic contract, and any agreement to amend or rescind one, is unenforceable unless it is made in writing, signed by the parties and witnessed. A separation agreement is a domestic contract under section 54, and it can deal with ownership and division of property, support, decision-making and parenting time, and any other matter in the settlement of your affairs.

Independent legal advice is not listed in section 55. An agreement signed without it is not automatically void. But advice is the practical protection against the second ground for setting aside in section 56(4), and the certificate each lawyer signs is the evidence, years later, that you understood what you signed.

What a court can still disregard or set aside

Section 56 keeps three doors open despite anything the agreement says. A court may disregard parenting terms where that is in the child's best interests, and child support terms that are unreasonable against the Child Support Guidelines. And under section 56(4) a court may set aside the contract or any provision if a party failed to disclose significant assets, debts or liabilities; if a party did not understand the nature or consequences of the contract; or otherwise under the law of contract, which covers duress, undue influence and unconscionability.

Complete disclosure, advice from separate lawyers and time to reflect close those doors as far as they can be closed. That is why the sequence matters: memorandum, advice, draft, sign.

What goes in a separation agreement

A well-drafted agreement from a mediated deal covers the parenting plan in enough detail to be followed without argument; child support with the table amount, section 7 expenses, and how and when it is reviewed; spousal support, its amount, duration and what changes it; equalization or the property settlement, including the home, pensions, RRSP rollovers and debts; life insurance and benefits to secure support; and releases so that settled claims stay settled.

It also records the disclosure exchanged, states that each of you had independent legal advice, and sets how disputes about the agreement itself will be handled, for example a return to mediation before anyone starts a court case. Every one of those clauses exists because somebody once left it out.

Filing support terms with the court and the Family Responsibility Office

A separation agreement is a private contract, but its support terms can be given the force of an order. Section 35 of the Family Law Act lets a party file the contract with the Ontario Court of Justice or the Family Court, after which the support provisions can be enforced and varied as if they were a court order. Once filed, the support terms can be registered with the Family Responsibility Office, which collects from the payor and pays the recipient.

Filing is optional. Many couples never do it and pay each other directly. Filing makes sense where reliability matters, where the payor's income is variable, or where either of you simply wants enforcement to be someone else's job.