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I don’t like Separation Agreements. Many would surely disagree. In my view, Separation Agreements are not always that easy to enforce. It is much better to have a court order, especially if you seek to enforce a parenting plan. While the provincial government has a government agency mandated to enforce support orders, no similar agency exists with respect to enforcing parenting provisions. So, I don’t like Separation Agreements.

There are other reasons not to place all your reliance upon Separation Agreements.

Under the Ontario Family Law Act, you can register a Separation Agreement and the support provisions of the Agreement will be treated as a court order. That means that the Family Responsibility Office will enforce the terms of the Agreement as if there was a court order. It follows that either spouse can return to court to vary the Agreement and obtain a new court order that will take account of the changed financial circumstances. See the Family Law Act, s. 35(2).

Child Support Agreements that come within the purview of the Family Law Act can also be registered under the Family Law Act. This is particularly a proposal in relation to parents who never were married and never lived together.

So, thus far, we have established that nonmarried parents are generally o.k. with registering their child support agreements as they can be easily changed in court. (But note as per above that I don’t share the same optimism when it comes to parenting agreements.) But married spouses do become divorced. The federal Divorce Act applies to divorcing and divorced parents – both with respect to child support and with respect to spousal support (as well as parenting provisions).

What happens if you are married, separate, and file a Separation Agreement that addresses spousal support? You are not yet divorced. But later, one side or the other secures a divorce. Can you come back and change your court filed Separation Agreement under the Family Law Act?

In the 2009 case of Abernethy v. Peacock, the appeal judge faced this situation. The parties divorced and there was no mention of child support in their divorce order. Subsequently, the former wife came to court to increase the child support that was in her previously registered Separation Agreement. The appeal court relied on section 36 of the Family Law Act which tells us that a support order granted under the F.L.A. continues if support was not adjudicated in the divorce. The appeal judge wrote: “If a support order can be enforced under Part III of the Family Law Act after the parties are no longer spouses, it stands to reason that it can also be varied under that Part.” And later the appeal judge wrote: “…the ability to apply for a variation of support under the Family Law Act is not limited to persons who are currently married.”

I disagree with the latter statement. The definition of “spouse” in the F.L.A. does not include former spouses. If you are a former spouse, you may not have access to the court under the F.L.A. In my view, it would be dangerous to rely upon the authority of Abernethy.

The later case of Stobo v. Stobo (2016) demonstrates the pitfalls of relying upon a registered agreement under the F.L.A. After the parties separated they signed a Separation Agreement and changed it once. They then divorced in 2010. They then varied the Separation Agreement yet again in 2014. None of the three agreements were ever incorporated into a Divorce order or any other court order. The former husband then filed that final agreement under section 35 of the F.L.A. and moved to vary it. He claimed that since he had registered the order, he was then at liberty to vary it under the Divorce Act [sic]! I find that submission to be quite strange.

It was no surprise that the judge wrote at paragraph 38: “An agreement registered pursuant to the FLA does not become an order under the Divorce Act.”

And at paragraph #39, the judge correctly (in my view) noted: “Clearly, the parties do not fit the definition of “spouses” under that Act and cannot pursue remedies under this Act.” This view is not compatible with the appeal judge’s view in Abernethy above.

The judge did not dismiss the application, but allowed the parties to consider amending their pleadings so that the true essence of their dispute could be considered under the proper statute, the Divorce Act.

If you are then in the position of not being allowed to vary or change an Agreement that was registered but must proceed under the Divorce Act, you are obliged to have support re-determined from the outset. Other legal factors may come into play in a manner that you did not expect. It would be preferable not to have surprises.

Solutions? Well, that is simple. If you are married and separated, then if you are going to settle matters by way of a Separation Agreement, then you would in all likelihood be well advised to incorporate your settlement into a Divorce order. There will be no procedural blockages to having any variable provision (ie. support, parenting) changed in the future should circumstances materially change. Whatever enforcement provisions are available at law, whether with respect to support or with respect to parenting, will still be available to you.

If you just register your Separation Agreement under the F.L.A., you don’t know that in the case of a later Motion to Change if the judge will follow Abernethy or follow Stobo. Why take any risks? Remove doubt. Get a consent order under the Divorce Act. But remember that every case is different. The general musings here may not apply to your particular situation. Consult your lawyer first.

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