Short answer: An Ontario separation agreement must be in writing, signed by both partners and witnessed. It should cover parenting, child and spousal support, division of property and debts and the family home, and both partners should give full financial disclosure and get independent legal advice so it holds up later.
What a separation agreement is
A separation agreement is a domestic contract under Ontario's Family Law Act. It records how separating spouses or common-law partners will handle parenting, support and property. Section 55 of the Act requires it to be in writing, signed by both parties and witnessed. A properly made agreement can be filed with the court and enforced like an order for support.
A separation agreement does not end a marriage. Married spouses still need a divorce order from the court to be legally divorced, which in most cases requires one year of separation.
What to include
Parenting
- decision-making responsibility for major decisions about health, education, religion and significant activities
- a parenting time schedule, including holidays, birthdays and travel
- how the parents will communicate and resolve disagreements
- what happens if a parent wants to move
Child support
The table amount under the child support guidelines, special or extraordinary expenses and how they are shared, how income will be disclosed each year and when support will be reviewed. See how child support is calculated in Ontario.
Spousal support
Whether spousal support is payable, the amount and duration, how it will be reviewed, and any release. Many agreements use the Spousal Support Advisory Guidelines as a reference point.
Property and debts
- the equalization payment between married spouses, based on each spouse's net family property
- the matrimonial home: who stays, who leaves, sale or buy-out, and who pays the mortgage until then
- pensions, RRSPs, investments, businesses and vehicles
- debts, joint accounts and credit cards
- life insurance to secure support
- releases of further claims, and how disputes about the agreement will be handled
Common-law partners do not have the statutory equalization regime, so their property issues depend on ownership and trust claims. An agreement is just as useful for them.
What makes an agreement hold up
Under section 56(4) of the Family Law Act, a court can set aside a domestic contract if a party failed to disclose significant assets or debts, did not understand the nature or consequences of the agreement, or for other contract law reasons such as duress or unconscionability. To protect the agreement:
- exchange full financial disclosure with documents
- have each partner get independent legal advice from a separate lawyer, with a certificate attached
- give enough time to review it; avoid signing under pressure
- make the child related terms consistent with the guidelines and the children's best interests
Time limits to keep in mind
A married spouse's claim for an equalization payment must generally be started within two years after a divorce, six years after separation if there is no prospect of reconciliation, or six months after the other spouse's death, whichever comes first. A signed agreement avoids the need to sue, but these limits matter if negotiations stall.
Frequently asked questions
Is a separation agreement legally binding in Ontario?
Yes, if it is in writing, signed by both parties and witnessed. It can still be set aside in limited cases, such as a failure to disclose significant assets.
Do both parties need a lawyer for a separation agreement?
It is not legally required, but independent legal advice for each party makes the agreement much harder to challenge later.
Can we write our own separation agreement in Ontario?
You can, but home made agreements often leave out terms or are open to challenge. Have each side review it with a lawyer before signing.
Do I need a separation agreement to get divorced?
No, but the court will want to see that reasonable arrangements have been made for the children's support before granting a divorce.
Can a separation agreement be changed?
Yes, by a new written agreement. Child related terms can also be changed by the court if circumstances change.
Does a separation agreement apply to common-law couples?
Yes. Common-law partners can and often should have one, especially for support and property they bought together.
Talk to our team
This guide is general information, not legal advice. For advice on your situation, see our family lawyer in Toronto page. To book a paid consultation (30 minutes, $150 plus HST, paid when you book), book online or call (647) 271-1646. The phone is answered 24 hours a day, 7 days a week, and office meetings are by appointment. Civitas Law is a team of legal professionals under the leadership of lawyer Nasibeh Mehrpouyan, serving clients in English, French, Farsi, Russian and Serbian.