Can I Get Out Of A Bad Separation Agreement?

The first step to answering your question is to look at the document that you signed when you separated. The document itself may either set out how to change it or give a clue as to how to get the separation agreement thrown out. You should take it to a family law lawyer who has experience not only in drafting these ‘separation agreements but in going to court to enforce them and to set them aside. That lawyer will be able to go through with you and explain to you what your rights are in relation to both spousal support and property. Chances are that if you did not have a lawyer help you, and explain the agreement to you, then the agreement will not be enforceable. Section 56 of Ontario’s Family Law Act sets out the circumstances in which a judge can set aside an agreement and order something different from the terms of the agreement. One of the bases on which a judge can do that is if one (or both) parties do not understand what they are signing. Most judges think that to understand a legal document properly, you need to get advice from a lawyer, so if you do not, judges are very likely to set aside an agreement.

The Family Law Act sets out circumstances in which an agreement can be set aside:

1. The agreement is not in writing
2. The agreement is not signed by the parties
3. The parties signatures are not witnessed
4. The parties did not exchange complete disclosure of their income, assets and liabilities for all relevant times (so the parties know what they are getting or giving up) if the agreement deals with money
5. The parties did not understand the agreement (the only proof that courts usually accept that a party understood an agreement is a certificate of independent legal advice signed by a lawyer)
6. The agreement, or the way it was negotiated, is contrary to the law of contract, the Divorce Act or the Family Law Act. This should not happen if the parties had lawyers, but there are lots of things that agreements have to do, and to consider and must not do.

Even though the law, as set out by the Supreme Court of Canada, says that separated parties should be held to their agreements, separation agreements are regularly set aside because they have one of the problems set out above. It takes an experienced lawyer to draft an unimpeachable separation agreement and, even then, there is always a chance that a court will set it aside. A good family law lawyer will be able to examine your agreement and your circumstances and advise you as to whether they think that the agreement will stand. For more on the rules for separation agreements, you should listen to this podcast and watch the video below on how to have an enforceable separation agreement. However, as set out below, you should speak with a family lawyer to discuss your options because the validity of your separation agreement can really depend on the specific facts of your case. If your agreement could have any of the above problems, you should speak to a family law lawyer right away.

If the agreement only dealt with ‘assets’ and not support, you may be entitled to claim spousal support depending on the circumstances of your marriage and divorce. You should listen to this podcast which explains how spousal support works in Ontario and the three bases for entitlement to it. Agreements that say “no spousal support” frequently run into problems under one or more of the points above (especially point 6) because there are a lot of rules for those clauses. Unless you had a lawyer write up the agreement, then chances are it will not hold up. If the agreement only dealt with support, then you may be able to make a property claim, especially if you were married. Property claims for common-law couples are more complicated and difficult. However, there are set time periods when you can make property claims. If you waited more than six years from the date of separation to advance an equalization claim, or more than two years to advance a claim in equity, you probably cannot make the claim anymore. 

Agreements for child support can usually be changed every year, and agreements that address spousal and child support may be easier to change.

If you have a custody/access or parenting agreement that is bad for the kids, then it is easier to get that agreement thrown out. Judges base their decisions about children on what is in the children’s best interests, and not on agreements between parents (unless those agreements are in the child’s best interests). Judges cannot assume that agreements between parents are in a child’s best interests – they have to investigate those agreements and get the evidence before the court to do so. 

To learn even more about setting aside separation agreements, you may want to get a copy of this easy-to-understand book on the basics of Ontario Family Law as a paperback, or as a $9.99 e-book for Kindle, Kobo, or iPad/iPhone/Mac. It has a chapter that is specifically about how to change a separation agreement. You may also want to listen to this podcast or watch these videos. You can also use the search on the right to find lots more articles about marriage and divorce. This website has hundreds of pages to answer the questions of real people, so there is a good chance you can get some information about your problem or concerns.

However, since a lot turns on the specific terms of your agreement, and the circumstances in which you negotiated it, you really should discuss your particular case with an excellent family law lawyer. There could be a lot of money at stake. Contact Certified Specialist in Family Law (and author of the book to the left), John Schuman, by emailing him, calling 416-446-5847, or using the contact form below. We answer all inquiries promptly and we can arrange for you to come in quickly for a consultation (charged at a reduced hourly rate).

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