Support Agreements

A separation agreement is a written contract between separated spouses that sets out how they will divide their property, care for their children, and pay support. It is negotiated between the parties (usually with the help of lawyers or a mediator) and signed by both parties. A separation agreement is a legally binding contract — both parties are bound by its terms. It can be filed with the court and enforced as a court order. A separation agreement can deal with all issues arising from the separation, or it can deal with only some issues (for example, support only, with property division to be resolved later).

A separation agreement can set out the amount of child support, the payment schedule, and the arrangements for Section 7 expenses. However, child support provisions in a separation agreement are subject to court review — a court can override an agreement that does not comply with the Federal Child Support Guidelines if it is not in the best interests of the child. Parents cannot contract out of the Guidelines. An agreement that sets child support below the Guideline amount will generally not be enforced unless there are special provisions (such as a non-cash benefit to the child) that justify the departure. Always ensure your child support agreement complies with the Guidelines.

A separation agreement can set out the amount, duration, and terms of spousal support. Unlike child support, spousal support provisions in a separation agreement are generally binding on the parties — courts are reluctant to override a freely negotiated agreement between adults. However, courts can set aside or vary a spousal support agreement if it was unconscionable (grossly unfair), if one party did not have independent legal advice, if there was a significant change in circumstances not anticipated at the time of the agreement, or if the agreement fails to comply with the objectives of the Divorce Act. Always get independent legal advice before signing a spousal support agreement.

Both parties should get independent legal advice before signing a separation agreement. Independent legal advice means each party has their own lawyer — not a shared lawyer. A lawyer who acts for both parties cannot give independent advice to either. Independent legal advice ensures that each party understands the agreement, knows their rights, and is not signing under duress or without full information. An agreement signed without independent legal advice is more vulnerable to being set aside by a court. Many lawyers offer a fixed-fee service for reviewing and advising on separation agreements.

A separation agreement can be filed with the court and made into a consent order. A consent order has the same legal force as an order made after a contested hearing — it can be enforced by the court and by provincial support enforcement programs. To make a consent order, both parties sign the draft order and file it with the court for a judge's signature. The judge will review the order to ensure it is appropriate (particularly for child support, which must comply with the Guidelines). Once issued, the order can be enforced through the provincial support enforcement program.

If one party breaches a separation agreement — for example, by failing to pay support — the other party can enforce it through the courts. If the agreement has been made into a consent order, it can be enforced through the provincial support enforcement program (for support obligations) or through a contempt motion (for other obligations). If the agreement has not been made into a court order, the other party can sue for breach of contract. In practice, making the agreement into a court order is the most effective way to ensure it is enforceable. Do not rely on a verbal agreement or an unsigned document — get it in writing and make it an order.