If you and your former spouse have been negotiating a separation agreement but they refuse to sign it, you may be wondering whether the agreement can still take effect or whether you can require them to sign. In Ontario, a separation agreement is a private contract, so it depends upon both parties voluntarily reaching and properly documenting an agreement.
A separation agreement can resolve important issues following separation, including property, support and parenting arrangements. However, an unsigned draft does not provide the same certainty as a completed agreement.
If your spouse will not sign a separation agreement in Ontario, you generally cannot force them to sign it. A separation agreement must be in writing, signed by both parties and witnessed to be enforceable. If negotiations do not resolve the outstanding issues, mediation, arbitration or court proceedings may be available.
A Separation Agreement Requires Both Parties to Agree and Sign
A separation agreement is a domestic contract that allows separated spouses to set out their respective rights and obligations. It can address matters such as ownership or division of property, support, decision-making responsibility, parenting time and other issues arising from the breakdown of the relationship.
For the agreement to be enforceable under Ontario’s Family Law Act, it must be in writing, signed by the parties and witnessed. This means that a draft agreement does not become a binding separation agreement simply because one spouse believes its terms are fair or because negotiations have been ongoing for a long time.
For more information about the terms commonly included in these agreements, click here.
Sources: Family Law Act, R.S.O. 1990, c. F.3, ss. 54-55.
Financial Disclosure Is an Important Part of the Negotiation Process
Where a separation agreement deals with financial issues, the parties should exchange sufficient financial disclosure so that each person understands the financial circumstances before agreeing to final terms.
The negotiation process will commonly involve identifying the issues in dispute, exchanging relevant financial information, negotiating proposed terms, preparing a written agreement and obtaining independent legal advice before the agreement is signed.
Incomplete financial disclosure can create problems even after an agreement is signed. A Court may set aside a domestic contract in certain circumstances, including where a party failed to disclose significant assets, debts or other liabilities that existed when the agreement was made.
For more information about common drafting and negotiation mistakes that people make when negotiating their own separation agreement, click here.
Sources: Family Law Act, R.S.O. 1990, c. F.3, s. 56(4).
A Spouse Cannot Generally Be Forced to Sign a Separation Agreement
If your spouse refuses to sign the proposed agreement, there is no binding separation agreement merely because you have accepted the draft or believe the negotiations should be finished.
A separation agreement depends on mutual agreement. If one spouse is not prepared to accept the proposed terms, the parties may continue negotiating, revise the disputed terms or consider another process for resolving the issues that remain outstanding.
Pressure to sign can also create problems. The enforceability of a domestic contract can later be challenged in circumstances involving issues such as duress, undue influence, lack of understanding or other concerns recognized under contract law.
Sources: Family Law Act, R.S.O. 1990, c. F.3, ss. 55(1), 56(4).
Mediation or Arbitration May Help When Negotiations Reach an Impasse
A refusal to sign does not necessarily mean that the parties must immediately proceed to Court. Alternative dispute resolution may help the parties narrow or resolve the issues that are preventing an agreement.
In mediation, a neutral mediator assists the parties in negotiating, but does not impose a decision. Arbitration is different because, where the parties agree to arbitrate, an arbitrator can make a binding decision about the issues submitted to them. Collaborative family law may also be available where both parties are prepared to work toward a negotiated resolution outside Court.
For more information about negotiating and formalizing a separation agreement, click here.
Sources: Family Law Act, R.S.O. 1990, c. F.3, Part IV.
The Court Can Decide Outstanding Issues if an Agreement Cannot Be Reached
If the parties cannot reach a separation agreement, either party may ask the Court to decide the unresolved issues that fall within the Court’s jurisdiction.
Depending on the circumstances, the Court may make orders dealing with matters such as child support, spousal support, parenting issues and, for married spouses, equalization of net family property. Property equalization claims must be brought in the Superior Court of Justice or the Family Court of the Superior Court of Justice.
A family Court case may involve an application, service on the other party, an Answer, financial disclosure and one or more Conferences. If the parties still cannot resolve the case, some or all of the remaining issues may ultimately proceed to trial.
Sources: Family Law Act, R.S.O. 1990, c. F.3, ss. 5, 33; Family Law Rules, O. Reg. 114/99.
Property Claims Are Subject to Limitation Periods
Continuing to negotiate does not necessarily stop legal limitation periods from running. This can be particularly important for married spouses who may have an equalization claim.
Under the Family Law Act, an application for equalization generally must be started before the earliest of three deadlines: two years after the marriage ends by divorce or judgment of nullity, six years after the spouses separate with no reasonable prospect of resuming cohabitation, or six months after the first spouse’s death.
Accordingly, a person should not assume that ongoing settlement discussions or an unsigned draft separation agreement automatically preserve a property claim.
Sources: Family Law Act, R.S.O. 1990, c. F.3, s. 7(3).
A Signed Agreement Can Still Be Reviewed by a Court in Some Circumstances
Signing a separation agreement is important, but a signature does not make every term immune from later Court review.
A Court may set aside a domestic contract or a provision of it in certain circumstances, including where significant financial information was not disclosed, a party did not understand the nature or consequences of the agreement, or the agreement can otherwise be challenged under the law of contract.
Parenting provisions are also subject to the best interests of the child, and child support provisions may be disregarded where they are unreasonable having regard to the applicable child support guidelines.
For more information about the value of obtaining legal advice by a qualified family lawyer before signing a separation agreement, click here.
Sources: Family Law Act, R.S.O. 1990, c. F.3, s. 56.
A Signed Separation Agreement Can Provide Certainty and Enforcement Options
If the parties eventually reach agreement and properly sign and witness the separation agreement, it can provide a clear record of their rights and obligations following separation.
A domestic contract may also be filed with the Ontario Court of Justice or the Family Court of the Superior Court of Justice in accordance with the Family Law Act. Once filed, certain support provisions may be enforced or dealt with as if they were contained in a Court order.
Before signing, each party should understand the agreement’s legal and financial consequences. Independent legal advice by a qualified family lawyer can help identify whether the proposed terms adequately address the person’s rights, obligations and risks.
Sources: Family Law Act, R.S.O. 1990, c. F.3, s. 35.
A Refusal to Sign Does Not End Your Options
If your spouse will not sign a separation agreement, the proposed agreement cannot simply be imposed on them. The parties may continue negotiating, use an alternative dispute-resolution process or ask the Court to determine issues that cannot be resolved by agreement.
At the same time, unresolved financial and property issues should not be left open indefinitely, particularly where a limitation period may apply. Obtaining legal advice can help identify which issues remain unresolved, what deadlines may apply and which process may be appropriate for moving the matter forward.
Attention Legal Counsel: Professional Mediation Services
When your clients have reached an impasse in settlement discussions, Andrew Feldstein offers third-party mediation services specifically designed for cases where both parties have independent legal representation.
Why lawyers refer cases to Andrew:
- 30+ years family law litigation experience providing courtroom-informed reality testing
- Expertise in complex financial matters including business valuations and professional corporations
- Efficient, structured process that respects counsel’s time and maintains client relationships
- Flexible scheduling including virtual mediation and travel to counsel offices
Cases we handle: Negotiation stalemates, complex asset division, support calculation disputes, parenting arrangements, multi-jurisdictional matters, and post-separation modifications.
Refer your next mediation: Call Andrew directly at 905-415-1635 ext. 255 or email info@separation.ca. Virtual and in-person sessions available throughout the GTA.
Categories: Separation Agreements, Separation, Family Law, Alternative Dispute Resolution.