Agreements after Separation

A separation agreement is a contract that records a settlement of the legal issues that arose following the end of a married or unmarried relationship. Unlike marriage and cohabitation agreements, which are made when a relationship starts, separation agreements are made when the relationship is over.

Separation agreements can be an effective and inexpensive way of resolving legal issues that are often very difficult. However, the terms of the agreement must be fair, and the parties must be able to get along well enough to negotiate the deal and then put it into action when it's done.

This section provides an introduction to separation agreements, discusses how separation agreements are formed, and describes the legal requirements of separation agreements. It looks at the typical subjects of separation agreements in some detail before talking about the effect reconciliation can have on separation agreements.

Introduction

Every separating couple has three options to resolve the legal issues between them:

1. settle the issues out of court through negotiation or mediation, or through some other process like arbitration or collaborative negotiation,
2. have a judge decide what should happen, after spending a lot of money on lawyers and the litigation process, or
3. give up and just walk away from the mess.

It's almost always better to negotiate and settle a dispute than to begin a court proceeding and resolve a dispute by trial. While a settlement usually gives neither party all of what they wish for, it will give them as much of what they want as they can both agree on. Litigation is stressful and expensive, offers no guarantees of success, and can be extraordinarily acrimonious. A negotiated settlement is less stressful, much cheaper, and gives the people involved the best chance of not hating each other at the end of the process.

A couple can reach a settlement at any time, even after a court proceeding has started. Typically, a settlement reached before a proceeding has begun is put into the form of a separation agreement. Settlements reached after the start of a proceeding can also be put into a separation agreement, but more typically the terms of such settlements are put into the form of a consent order, an order that both parties agree the judge should make.

Separation agreements can deal with almost any issue a couple have to address, from who will keep the cats, to how the mortgage will be paid, to how the children's post-secondary education will be paid. Separation agreements also offer a lot more flexibility than court orders, as some terms that can be put into an agreement can't be put into a court order. Most importantly, separation agreements can be tailored to meet the specific needs and circumstances of each couple.

Of course, separation agreements aren't for everyone. There must be a certain basic amount of mutual trust and good faith, and each party must have a certain flexibility and a willingness to accommodate the other side. A separation agreement will not be appropriate where a couple are so filled with anger, jealousy, or stubbornness that even a basic level of mutual respect is absent and dialogue is impossible.

Alternatives to separation agreements

Family law disputes can be resolved in a number of different ways before a court proceeding has started, through negotiation, mediation, collaborative negotiation, or arbitration. Settlements reached in these ways are almost always recorded in the form of a separation agreement.

Settlements reached after a court proceeding has started may be recorded as separation agreements if the terms of the settlement are complicated or if there are concerns about whether a term of the settlement can be put into a court order. In that case, the parties may enter into a separation agreement followed by a short consent order that resolves the issues raised in the court proceeding. Otherwise, the settlement of a court proceeding will be recorded as minutes of settlement and a consent order.

Minutes of settlement

Minutes of settlement are a written record of how a court proceeding was resolved. They are reached after a court proceeding has begun and are usually used to describe the terms of a consent order, an order that both parties agree the court should make. Both of the lawyers and each of the parties will sign the minutes of settlement; usually, only the lawyers will sign the final consent order.

Minutes of settlement sometimes have a rough-and-ready feel to them, as they are often used to quickly record a settlement of the legal issues, a settlement that is sometimes reached on the morning the trial is set to start. As a result, minutes of settlement are typically less comprehensive than separation agreements. However, even though they lack the same fine-tuning and detail, minutes of settlement are just as binding upon the parties as a separation agreement would be. Both are contracts and both can be enforced as such.

Minutes of settlement should:

1. be signed by both lawyers and by both parties, although the signature of the parties isn't strictly necessary,
2. deal with each of the legal issues in a conclusive, final manner, and
3. be attached to the draft consent order submitted to the court for its approval.

Consent orders

A consent order is an order that both parties agree a judge should make. Consent orders are only appropriate if litigation has started. It is not necessary to have minutes of settlement signed before the terms of a consent order are agreed to.

When a judge pronounces an order by consent, the order has just the same effect as a final order reached after a trial and is just as binding upon the parties as a final order.

Minutes of settlement and consent orders

The advantage of minutes of settlement is that the minutes can stand alone as evidence of the written agreement of the parties, while the form of a draft consent order, which may reflect the parties' agreement, still requires the court's approval. Moreover, if the terms of a draft consent order are argued about, there may not be any evidence of the agreement — the sort of evidence that is provided by minutes of settlement — which a court can use to decide the matter.

Consent orders have unique advantages of their own, in that it is usually extremely difficult to vary an order pronounced by consent without a serious and unanticipated change in circumstances, and such orders are almost impossible to appeal.

Other final agreements

Any legal dispute a couple has can be resolved by a formal contract of some nature. Separation agreements can be made between married spouses or unmarried spouses and deal with a wide range of issues, from the care of children to the division of property and debt.

Some couples may only have one issue to resolve and the usual comprehensive sort of separation agreement isn't required. People who are just parents and never married or lived together may want a parenting agreement that talks about parental responsibilities and the allocation of parenting time. Couples, including unmarried spouses who lived together for less than two years, who only need to deal with child support or spousal support may want a support agreement that deals with either or both issues. Couples who only need to resolve who keeps what property and which debts may want a simple property agreement that just deals with these two issues.

Family law agreements can also involve more people than the adults who were involved in a relationship. Separated parents might sign an agreement for contact with grandparents who want to see their grandchildren. A separating couple might sign a loan agreement or promissory note with a friend or family member to whom they owe money.

Entering into a separation agreement

A separation agreement can be negotiated and signed at any time once a married or unmarried relationship has broken down. A separation agreement can be signed after a court proceeding has been started, or before one has even been considered.

The basic process

The process for entering into a separation agreement is fairly simple. The parties to the agreement talk about the legal issues resulting from the breakdown of their relationship and try to come up with resolution of each issue that they are each as happy with as possible, hopefully after getting some advice from a lawyer. They take careful notes, recording how each issue was resolved, and then turn those notes into a longer, more formal written agreement that they each date and sign.

The process of reaching an agreement is a process of negotiation: each party usually has a pretty good idea of how they would like to see things resolved, and then, following the exchange of these ideas, a compromise is reached that represents a blending of the two positions to some extent. It's important to understand that neither party is likely to get all of what they want on all of the legal issues. The negotiation process requires a bit of give and take from everyone involved. It may take a bit of compromise on one issue to get a better result on another issue.

Once a resolution is reached on each of the legal issues, one of the parties will write down how each of the issues was settled in a formal written agreement. Each of the parties should check the written agreement to make sure that it accurately reflects their settlement, check whether anything was left out, and make sure that there are no other issues that need to be discussed and included.

Preparing the written agreement can be challenging. While kits are available that can guide you in drafting an agreement, I recommend that you hire a lawyer to handle the drafting when the content of your agreement is anything other than completely straightforward.

When everyone is happy with the written agreement, they should each take a copy of the agreement to their respective lawyers, or to any lawyer for that matter, to get independent legal advice about the agreement. The lawyers they speak to will explain:

• the meaning and effect of the agreement,
• the obligations they have to the other party under the agreement,
• the obligations the other party has to them under the agreement,
• any weaknesses in the drafting of the agreement, including any important terms the agreement has left out,
• whether the terms of the overall settlement are fair or unfair, and
• the options that are available to them if they decide not to sign the agreement.

Independent legal advice is critical for three main reasons:

1. If you are entering into an agreement that will help you avoid court, you need to know how that agreement affects the rights you would have had if you had decided to go to court instead.
2. You have to clearly and completely understand the obligations and the rights the agreement gives you.
3. Getting the advice will stop either party from claiming, later on, that they didn't know what the agreement meant or that they were at a disadvantage because the other party's lawyer drafted the agreement.

After each party has had independent legal advice about the agreement, they'll sign the agreement or, as lawyers say, they'll execute the agreement, if they're still willing to do the deal. Family law agreements need to be signed in the presence of a witness, who, after watching the party sign the agreement, signs the agreement themselves. Someone who witnesses an agreement does not become a party to that agreement and isn't responsible for seeing that the agreement is followed. The signature of a witness on an agreement merely says "I know Mr. Fong and I saw Mr. Fong sign the agreement."

Normally, the lawyers who provided the independent legal advice will witness their client's signatures, but anyone can witness a person's signature, as long as the witness isn't under the age of 19 and doesn't have an interest in a party signing the agreement.

If a party had independent legal advice, the lawyer who gave the advice will usually also sign another piece of paper, attached to the agreement, which confirms that: the party received legal advice about how the agreement affects their legal interests; the party understood the terms of the agreement; and, the party wasn't forced into signing the agreement. This paper is called a Certificate of Independent Legal Advice.

Normally, four separate original copies of a separation agreement are executed. This is so that the parties and their lawyers each have an original copy of the agreement. Sometimes, an additional original copy is executed in case the agreement is filed in court.

If you are negotiating an agreement and have a lawyer

Even if you have a lawyer, it can be extremely tempting to work something out with your ex on the side. If you feel even remotely tempted to do this, call your lawyer! Make sure your lawyer knows that you're trying to explore settlement options with your ex, and make sure you understand what to say and, more importantly, what not to say.

Nothing is quite as frustrating for lawyers as finding out that their client has negotiated an unfair, inadequate or prejudicial agreement without their input. While you, the client, are free to do as you want and can make any deal you want, be warned that you may find yourself settling for worse terms than what your lawyer might have been able to negotiate for you, or terms that are worse than the results you might have obtained at trial. Remember that you may be stuck with any agreement you make, whether it's a good agreement or a bad one.

Call your lawyer before you sign or initial anything. Please. This is what you're paying them for.

Formal requirements of separation agreements

A separation agreement is a contract, the same as the contract you might have with your employer, the people you buy a house from, or your landlord. On the other hand, family law agreements are special, different from commercial contracts, because they deal with legal issues that are covered in the provincial Family Law Act and the federal Divorce Act. As a result, the law dealing with separation agreements is a blend of legislation, the common law relating to family law agreements, and certain parts of the law dealing with commercial contracts.

The whole point of making a separation agreement is so that, at some later time, the contract will be enforceable in court if one of the parties fail to live up to it. As such, the agreement must be capable of being enforced by the court and it must be able to withstand a challenge in court.

Separation agreements must follow certain basic rules in order to be legally binding and enforceable, including these:

• The agreement must be in writing.
• The agreement must be signed by each party.
• While all family law agreements should be signed in the presence of a witness, under sections 93(1) and 163(1) of the Family Law Act, agreements about property, debt and spousal support must be signed by a witness to prevent the court from making orders about property, debt and spousal support without the court cancelling the agreement first.
• Neither party can be under a legal disability when they sign the agreement. However, children who are parents or spouses may enter into a binding agreement.
• The agreement must clearly identify the parties and the nature of their rights and obligations to one another.

In addition to these rules, you might want to think about certain other principles of contract law, including these:

• The people who sign an agreement must each enter into the agreement of their own free will, without any pressure by the other party, or by anyone else for that matter.
• Where an agreement is prepared by one party's lawyer and the other party doesn't have a lawyer, any portions of the agreement that are vague may at some point in the future be interpreted by the court in favour of the party who didn't have the lawyer.
• The court will attempt to give effect to a contract wherever possible, that is, they will attempt to give meaning to the terms of a contract rather than declare it void.

Family law agreements are also subject to other principles that don't necessarily apply to commercial contracts:

• The parties must make full and complete disclosure of their financial circumstances going into agreements about child support, spousal support, property and debt.
• If one term of a separation agreement is void, then the court will cancel only that term of the agreement and the other terms will continue to be in force and binding on the parties.
• A separation agreement will not be considered to be invalid just because one party doesn't comply with a term of the agreement. In other words, you can't say the whole agreement has been broken and should be cancelled just because the other party didn't do something they were supposed to do.
• While the parties can later agree to do something different than what their agreement says about a particular issue, the remainder of the agreement will continue to be in force and binding on the parties.

It's important to know that the courts will rarely if ever uphold an agreement that attempts to avoid a statutory obligation. Child support, for example, is a positive, almost absolute, obligation all parents have toward their children. The court will not follow an agreement which says a parent will never have to pay child support.

It's also important to know that the courts can uphold an oral agreement, but there are significant disadvantages to them as compared to written agreements (including how legally binding they are on a judge). See the note about oral agreements in the introductory section on Family Law Agreements within this chapter. If, as in Voitchovsky v Gibson, 2022 BCCA 428, there is evidence that both parties clearly understood the essential terms of the oral agreement, showed intention to be bound by those terms, and conducted themselves over the years in way that was consistent with the oral agreement, then the court may determine there was an agreement. However, it's easy to disagree about whether an oral agreement was ever reached, and if so on what terms. It's always best to put agreements in writing.

The possible subjects of a separation agreement

The potential subjects of a separation agreement are limited only by common sense and what the law will allow. That said, it's always best to be as realistic as possible when drafting a separation agreement. Will a schedule of payments be too difficult for a party to manage? Will the children be able to adapt to a shared parenting arrangement? Are the parties' responsibilities to one another too complex? Are they too optimistic? Although it's best that all of the legal issues between the parties be dealt with in a separation agreement, the simpler an agreement is, the better it will usually work in real life.

Children

Issues about parenting after separation are covered by the federal Divorce Act for married spouses and by the provincial Family Law Act for married spouses, unmarried spouses and other unmarried couples, and anyone else who has an interest in the care of a child.

The Family Law Act talks about parents who are the guardians of a child and have parental responsibilities and parenting time, and about people who are not guardians and may have contact with a child. The Divorce Act uses many of the same terms. It talks about married spouses who have decision-making responsibilities and parenting time, and people who aren't married spouses and may have contact.

Guardianship

Under section 39(1) of the Family Law Act, a child's parents are usually the child's guardians as long as they have lived together during the child's life or are a parent as a result of an assisted reproduction agreement. These parents are guardians because the Family Law Act says so. They don't need an order or an agreement to make them a guardian.

A parent who has never lived with their child isn't a guardian unless the parent "regularly cares" for the child.

Under section 50, only a parent can become the guardian of a child through an agreement. Agreements likes these are between the parent and all of the child's other guardians. Someone who isn't a parent can't be made a guardian by an agreement. They can only be made a guardian by court order.

Parental responsibilities and decision-making responsibilities

Only guardians can have parental responsibilities for a child under the Family Law Act. These responsibilities are listed at section 41:

(a) making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child;

(b) making decisions respecting where the child will reside;

(c) making decisions respecting with whom the child will live and associate;

(d) making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location;

(e) making decisions respecting the child's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an aboriginal child, the child's aboriginal identity;

(f) subject to section 17 of the Infants Act, giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child;

(g) applying for a passport, licence, permit, benefit, privilege or other thing for the child;

(h) giving, refusing or withdrawing consent for the child, if consent is required;

(i) receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;

(j) requesting and receiving from third parties health, education or other information respecting the child;

(k) subject to any applicable provincial legislation,

(i) starting, defending, compromising or settling any proceeding relating to the child, and

(ii) identifying, advancing and protecting the child's legal and financial interests;

(l) exercising any other responsibilities reasonably necessary to nurture the child's development.

Guardians can share one or more of these parental responsibilities, or one or more parental responsibilities can be allocated just to one guardian, so that only that guardian has responsibility for that issue.

Decision-making responsibilities are described much more briefly in the Divorce Act. Under section 2(1), "decision-making responsibility" is defined as:

the responsibility for making significant decisions about a child’s well-being, including in respect of

(a) health;

(b) education;

(c) culture, language, religion and spirituality; and

(d) significant extra-curricular activities.

Just like the Family Law Act, however, married spouses can share one or more of these decision-making responsibilities, or one or more decision-making responsibilities can be allocated just to one spouse, so that only that spouse has responsibility for that issue. People who are the parents of a child, or who intend to stand in the place of a parent to a child, can apply to court for decision-making responsibilities if they get permission from the court to make the application first.

Parenting time and contact

Parenting time and contact are both about the child's parenting schedule, although parenting time is about a bit more than just the child's schedule. Only guardians have parenting time under the Family Law Act; people who aren't guardians have contact with a child. Under the Divorce Act, it is usually only married spouses who have parenting time; however, people who are the parents of a child or intend to stand in the place of a parent to a child can apply to court for parenting time, if they get permission from the court to make the application first.

The terms of a child's parenting schedule can be very specific or, where the parties get along exceptionally well with one another, the terms can be as vague as "Uphar will have liberal and generous parenting time with the child."

If there has been a history of difficulty exercising parenting time or contact, or there is even a smidgen of conflict between the parties, it can be important to spell out the child's schedule in more detail to avoid future arguments. The terms of the child's schedule usually spell out when the party will see the child on a week-to-week basis, such as "John will have the child from Friday at the end of school to the following Sunday at 7:00pm, every other week, plus each Wednesday from the end of school until 7:00pm."

Children's schedules can, and probably should, also take into account special days such as:

• the child's birthday,
• Mothers' Day and Fathers' Day,
• the parties' birthdays,
• school holidays, religious holidays and statutory holidays,
• Halloween,
• extended access when there is a statutory holiday or a professional development day at school,
• special events at school, and
• birthdays of the child's friends.

Talking about these and other special days in a separation agreement can be really useful if there is conflict between parents. It lets people anticipate and resolve things that could grow into disagreements in the future.

Other issues that an agreement could talk about also include: communication by telephone and computer, including email, instant messaging, and video conferencing; responsibility for picking up and dropping off the child at school; and, going to the child's extracurricular activities.

Child support

Child support is money paid by one parent to another, usually on a monthly basis, to help cover the day-to-day living expenses of a child. Child support is usually paid by the parent who has the children for the least amount of time to the parent who has the children for the most amount of time. Child support can also be paid when the parents share the child's time more or less equally, if there is a difference between the parents' incomes. In cases like this, the parent with the higher income will pay some amount of child support to the parent with the lower income.

The amount of child support that is paid is almost always the amount required by the Child Support Guidelines, which includes tables that fix the amount of a parent's child support obligation according to the number of children support is being paid for and the income of the person paying support, the payor. Child support can sometimes be paid in a different amount if:

• a child is the age of majority or older,
• the payor earns more than than $150,000 per year,
• a child is a stepchild,
• one or more of the children have their primary homes with different parents, or
• the parents share parenting time with the children more or less equally.

On top of the basic amount of child support, both parents can also be required to pay toward those of the children's expenses that qualify as "special expenses" or "extraordinary expenses" under section 7 of the Child Support Guidelines.

A good separation agreement will:

• state the income of each parent at the time the agreement is made,
• state the monthly child support to be paid,
• require the parties to exchange copies of their tax returns and Canada Revenue Agency notices of assessment each year or perhaps every other year,
• provide for a review of child support every year, if the payor's income rises or falls, or if there are significant changes in the parties' parenting arrangements,
• describe those of the children's expenses that the parties agree qualify as special expenses or extraordinary expenses, and say how much each party has to pay toward those expenses, and
• provide for the recalculation of the parties' shares of the cost of the child's special expenses if either party's income rises or falls.

The Guidelines are an extremely convenient way to calculate a party's child support obligations up to the point where one of the exceptions to the Guidelines amounts applies. While separation agreements allow for a little more flexibility in deciding how much child support should be paid if a child is the age of majority or older, the payor earns more than than $150,000 per year, if a child is a stepchild, if one or more of the children have their primary homes with different parents, these exceptions make the annual exchange of financial information even more important.

Spousal support

Spousal support is paid by one spouse to the other to help cover that person's day-to-day living expenses. A separation agreement that talks about the payment of spousal support should be negotiated bearing in mind all of the things the court would have considered in making an order for spousal support.

Typically, a separation agreement that requires spousal support to be paid will include some means of limiting the length of time for which support will be payable. Terms like this might include:

• setting a fixed length of time over which support will be paid, after which the payor will have no more responsibility to pay support,
• agreeing that support will be paid for an indefinite amount of time, but setting one or more dates or circumstances when support will be reviewed,
• setting a series of decreasing payments, so that the recipient receives a lower amount of support as they re-enter the work force,
• agreeing to end support if the recipient enters a new spousal relationship, or
• agreeing that support will be paid in a single, lump sum.

In some situations, of course, permanent support may be required, especially if the relationship was lengthy or if the recipient is unlikely to ever become self-sufficient, perhaps because of illness or disability.

Some agreements also provide that no spousal support will be payable. If you are the spouse who would ordinarily be entitled to receive support, you need to be pretty confident that an agreement to waive spousal support is fair, as it may be very difficult to get support later on if your personal circumstances change.

The division of property and debt

The ways that a separation agreement can deal with the division of family property and family debt are virtually unlimited. Under the Family Law Act, each spouse is presumed to keep the property they brought into the relationship and share in the property bought during the relationship. The spouses are presumed to each be half responsible for any debt incurred during the relationship. However, you can make whatever other arrangements you want, as long as you both agree to those arrangements and they're reasonably fair.

When the division of property and debt are issues, it's often helpful to exchange Financial Statements. A Financial Statement, Form F8 of the Supreme Court Family Rules, is a helpful court form in which each party describes their income, assets, expenses, and debts on oath or affirmation, like an affidavit. This form can be very useful for each spouse to get a clear idea of the family's financial situation before negotiations start, and you can use the form whether you're already in court or not. You can find links to and examples of a Financial Statement and other forms in Supreme Court Forms & Examples.

A separation agreement should also talk about how debts will be managed. Separating couples typically pay out family debts by selling shared property when there's not enough cash to pay the debt out, which is usually how the mortgage on the family home gets paid out, or they can allocate different shares of the family property to each spouse to compensate for family debt that can't be paid out. When a debt won't be paid out, it's essential to do two things:

1. allocate responsibility for the debt, and
2. provide that the party remaining responsible for a debt will protect the other party from creditors who want them to pay the debt, or will compensate them if a creditor forces them to pay the debt.

Other issues

Arrangements for the care of children, the payment of support, and the division of family property and family debts are the most common issues that come up in family law. There are a whole host of other issues that couples may have to deal with, including a few that can only be dealt with in separation agreements.

The parties' future relationship with each other

Most separation agreements include a whole section devoted to describing how the parties will deal with each other once the agreement is executed. Typically, this portion of an agreement requires the parties, among other things, to:

• not incur debts in the name of the other party,
• not interfere with the personal life of the other party, including interfering with the other party's dating or future spousal relationships, or their relationships with their parents, family and friends, and
• not molest, harass, or annoy the other party.

Some separation agreements will also describe what will happen if the parties reconcile with each other. Most often an agreement will simply say that it will become a marriage agreement or a cohabitation agreement if the parties reconcile, and that it will not cease to be in effect or binding on the parties simply because of the reconciliation.

Life insurance

Where children are involved, it can be a good idea to provide in an agreement that each party will maintain a life insurance policy until the children have all reached the age of majority. Each policy will usually name the other parent as the sole beneficiary of the policy in trust for the benefit of the children, in order to make sure that the kids will be looked after in the event that either party dies. Most agreements that deal with insurance allow the parties to change the beneficiaries of their policies once the youngest child turns 19.

In general, it's only appropriate to include a term about insurance policies if the parents can afford to pay for those policies. Life insurance can get very expensive, especially for older people.

Undisclosed assets

If you have even the slightest doubt that the other party hasn't been entirely honest about the extent of their assets, a term dealing with undisclosed assets can be important. These sorts of terms usually provide that:

• any property that wasn't disclosed when the agreement was executed will automatically be considered to be owned equally by both parties,
• the party that didn't disclose the asset will have to give the other party one-half of the asset's value, and
• the party that didn't disclose the asset will have to pay the expenses the other party incurred in finding the asset, plus a financial penalty.

The effect of reconciliation

Separation agreements don't always contain special terms providing for the reconciliation of the parties and the resumption of their relationship. But if a couple does reconcile, what happens to their separation agreement? Does the agreement stay in force? What happens if the parties separate again?

The general rule here comes from the common law. Without a specific clause preserving some or all of the terms of a separation agreement, the agreement will be void if the parties reconcile and resume their relationship and live as a couple. This rule was upheld in a 2003 decision of the Ontario Court of Appeal, Sydor v. Sydor, 2003 CanLII 17626 (ON CA), and by the British Columbia Supreme Court in Alexander v. Alexander, 2013 BCSC 1586. In Sydor v. Sydor, the court held that unless a separation agreement contains a term to the effect that the agreement will survive reconciliation, the agreement will be void when the couple reconciles, despite any term of the agreement that says the agreement is a "full, final and conclusive settlement" of all issues arising from their relationship.

The upshot of all this is that if there's a chance that you and your spouse might get back together, and you want your separation agreement to survive your reconciliation, you must put a term to that effect in your separation agreement. Without it, your agreement may be worthless if you reconcile and the relationship breaks down again at some point afterwards.

Separation agreements filed in court

Agreements that are filed in court can be enforced as if they were orders of the court in which they are filed. Among other things, this means that the BC Family Maintenance Agency (formerly the Family Maintenance Enforcement Program) can enforce an agreement for support exactly as it would enforce an order for support.

To find out how to file an agreement, or to see if your agreement has been filed in court, read How Do I File an Agreement in Court?. It's located in the Helpful Guides & Common Questions part of this resource under Separation Agreements.

Resources and links

Legislation

• Family Law Act
• Divorce Act
• Child Support Guidelines
• Supreme Court family Rules

Links

• Legal forms & documents from Legal Aid BC
  • Under the section "Agreements" see "Making an agreement after you separate" and "Who can help you reach an agreement?"
• BC Family Maintenance Agency website from the Government of British Columbia
• Families Change website from the Justice Education Society of BC and BC Ministry of Attorney General
• Legal Aid BC's Family Law website's information page on Separation & Divorce
• Separation and Separation Agreements from Dial-a-Law by the People's Law School
• MyLaw BC Make a Separation Plan Pathway from Legal Aid BC
• Parent Guide to Separation and Divorce from the Justice Education Society of BC
• Going Through Separation from Legal Aid BC

Resources

• "Living Together or Living Apart" from Legal Aid BC
  • See chapter 2 on making agreements
• "Separation Agreements: Your Right to Fairness" from Legal Aid BC and West Coast LEAF
• "Living Together or Living Apart: Common-Law Relationships, Marriage, Separation, and Divorce" from Legal Aid BC
• "Separated with Children - Dealing with the Finances: Parent Workbook" from the Justice Education Society of BC
• "Coping with Separation Handbook" from Legal Aid BC
• "How to Separate" online course from the Justice Education Society of BC
• "Ending Relationships" video from John-Paul Boyd, QC
• "Practice Checklist Manual" from the Law Society of BC
  • See "Separation Agreement Drafting"

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Beatrice McCutcheon, 22 November 2023.

JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.