What If a Spouse Won’t Sign a Separation Agreement in Ontario?
It is one thing when two spouses agree to separate, talk terms, and sign a separation agreement. It is quite another when one partner drops out of the process or refuses to sign on the dotted line. In Ontario, when a spouse won’t sign, it leaves the other with a slew of questions. Is the separation agreement still valid? Can I proceed with a divorce if my spouse refuses to sign a separation agreement? Can I still ask for my maintenance support, child support and parenting time? Can I proceed with selling or dividing property if my spouse refuses to sign?
If your spouse refuses to sign a separation agreement in Ontario, first know this: your rights don’t go away. The process doesn’t grind to a halt. It may take longer, cost more, but need not end in a stalemate. At GTA Divorce Lawyers, we have guided clients through this complex fork in the road every day. We are familiar with the law, and we understand the emotional and financial costs and stresses associated with it.
At the same time, it helps to keep perspective. While Canada’s divorce rate has been in decline for decades, separation and divorce are very much a fact of life for many families. According to Statistics Canada (2020), the overall annual rate of divorce has dropped to 5.6 per 1,000 married persons in 2020, the lowest level since 1973. But more commonly cited lifetime probabilities of divorce are commonly estimated at around 38–40% in Canada (Vanier Institute / Statistics Canada commentary). The important point is that, while annual rates continue to decline, the lifetime risk of divorce remains not far below half. At the individual level in the family law battle with a spouse who won’t sign a separation agreement, the question is less about national trends and more about what you can do next. Let’s sort that out.
Understanding Separation Agreements in Ontario:
A separation agreement is a form of domestic contract in Ontario, governed by the Family Law Act (R.S.O. 1990, c. F.3). Section 54 allows two persons living separate and apart to make an agreement setting out their respective rights and obligations in respect of property, support, custody and access.
But formalities matter. Section 55(1) states the basic: a domestic contract is generally not enforceable unless it is in writing, signed by the parties and witnessed (Family Law Act, s. 55(1)). That is to say, if the agreement is not in writing or not signed, or not witnessed, it may not be enforced as a domestic contract.
Courts have developed a limited, pragmatic, safety valve in some cases to look behind those strict formalities where fairness, context, and the manifest intent of the parties call for enforcement, but that is an exception, not the norm, and relying on it is a risky gamble at best.
A properly executed and fully supported domestic contract, separation agreement, can help set clear rules and expectations for support, parenting and property matters, and it can help with disputes and conflict and with cutting costs. But when one spouse refuses to sign, you must both tread carefully and proceed deliberately. (Family Law Act, s. 54; Family Law Act, s. 55(1).)
Why a Spouse Might Refuse to Sign?
Several reasons exist for a spouse to refuse to sign a separation agreement:
1. They don’t agree to the terms:
They think, for instance, that the property division is unfair. They want more parenting time. They don’t want to pay spousal support.
2. They didn’t receive independent legal advice (or feel they didn’t):
A lack of advice can make someone fear being set aside later or being taken advantage of. (Family Law Act, s. 56.)
3. They believe that they are losing leverage.
Signing a separation agreement is the end of negotiations: the spouse who refuses to sign may believe that further negotiating will get them more leverage.
4. Emotional reasons:
The spouse does not want to accept that the relationship is ending. Or they may simply want to delay the inevitable.
5. They believe they’ll gain more in court:
Some people feel that the courts will give them a better result than negotiating.
Your choice of next steps will depend on your own situation and your spouse’s reasons. Renegotiating can be a good way to clear up misunderstandings. Independent legal advice may help a spouse who feels vulnerable. A third-party mediator can be very effective in untangling difficult emotional or financial disputes.
What the Law Says: Can You Enforce a Separation Agreement Without Consent?
Precisely, let’s break this down in legalese: If a spouse refuses to sign the separation agreement, that does not automatically strip the other of their rights. But it also does not mean the unsigned agreement is an enforceable, binding contract until the formality conditions are met. Under section 55(1), domestic contracts are generally not enforceable unless they are in writing, signed by the parties, and witnessed. (Family Law Act, s. 55(1)) Later in section 56(4), the court may set aside the domestic contract or a provision of it if a party has failed to disclose significant assets, debts, or liabilities; a party has not understood the nature or consequences of the domestic contract, or its provision; or the contract is otherwise set aside under contract law (Family Law Act, s. 56).
In Gallacher v. Friesen (2014 ONCA 399), the Ontario Court of Appeal recognised that in rare cases, the court may enforce an oral domestic contract or an agreement lacking strict technical formalism if there is clear intent by both parties and other factors of fairness support enforcement. More recently, El Rassi-Wight v. Arnold (2024 ONCA 2) upheld the significance of formal compliance when the contract lacked a witness signature and contained ambiguities. The Ontario Court of Appeal emphasised the potential unfairness to a party signing a contract without such a witness (El Rassi-Wight v. Arnold, 2024 ONCA 2).
The bottom line is: you can’t force someone to sign a domestic contract. On the other hand, you have legal options. The Family Law Act and the Divorce Act continue to provide routes to your rights in separation, divorce, support, and parenting. A missing signature takes away a streamlined path based on an enforceable domestic contract, but it does not eliminate the court’s ability to make orders related to support, property, and parenting.
Legal Options If a Spouse Won’t Sign:
When a spouse refuses to sign, you still have multiple pathways:
1. Continue negotiating: Negotiating may be possible if the refusal is due to the other spouse having genuine concerns about particular terms or aspects of the agreement. Having legal advice for both sides can facilitate resolution.
2. File a court application: File a motion or an application to the Ontario court for: child support, spousal support, property division, parenting/custody. In the absence of a signed agreement, these legal options remain: the court still has authority and will make a decision based on the facts and the law. (Divorce Act; Family Law Act, s. 55/56)
3. Seek partial agreements: You can still reach a partial agreement and apply to the court for consent orders or interim orders. It won’t create a fixed deal on everything, but may help stabilise urgent issues like parenting.
4. Use leverage carefully: One downside to the refusing spousal party is that they give up some leverage and control by refusing to negotiate. You can move to court instead and force their hand. The threat of a court case may be a real incentive for a holdout spouse to sign. Be aware: this is not a reason to use threats or pressure. A settlement obtained through coercion can be set aside, and the party responsible for the coercion may be held legally liable.
5. Documentation matters: Keep records of all offers, counteroffers, and communications. Preserve evidence of your good faith efforts to negotiate. It shows reasonableness in court.
The Role of the Court When an Agreement Isn’t Signed:
The court will have jurisdiction if a matter is brought before it. The Family Law Act and the Divorce Act give the court broad authority to make orders on support, property, and parenting. For married spouses, the Ontario Family Law Act has an equalisation remedy for the division of matrimonial net family property; common-law partners have different property sharing rules.
Child support and spousal support are subject to federal and provincial guidelines; the court will consider each spouse’s income, parenting time, and need. In the absence of a separation agreement, the court will consider all of the assets, liabilities, earning capacity of the spouses, and parenting arrangements, and will make orders even over the objections of a spouse. The court will not be indefinitely patient with a spouse who stalls. If the other party wants to move forward, the court can act.
In practical terms, this means that separation without a signed agreement can be more complex and take longer to resolve, but a court can still make orders. The absence of a signed separation agreement does not preclude access to court remedies. You may want to talk to a lawyer sooner.
How Long Can Separation Last Without Signing?
One myth in Ontario is that “If we don’t sign a separation agreement, we are not officially separated.” This is not true. You can be separated, in fact, when one spouse lives apart with the intention to end the marriage relationship, no separation document required.
The problem is uncertainty: interim orders, default property claims, the volatile support, and inevitable litigation and expense. The longer a separation continues with no decision, the more expensive and emotionally draining it can become. It’s best to get clarity sooner.
Common Misconceptions About Signing a Separation Agreement:
Let’s clear up a few common misunderstandings regarding separation in Ontario:
Myth: “If my spouse refuses to sign, then everything is on hold.”
Reality: Applications to the court are still possible. (Family Law Act, s. 55/56.)
Myth: “If we negotiate and both agree verbally, that’s enough.”
Reality: Under Section 55(1), a domestic contract requires writing, signature, and a witness to be enforceable. (Family Law Act, s. 55(1)). Verbal or implied agreements are fragile and hard to enforce.
Myth: “Once we’re separated, I can just wait indefinitely for the signature.”
Reality: Stalling increases cost, risk of asset hiding, and the potential for conflict. The longer that issues remain unsettled, the more likely litigation becomes necessary.
Financial Costs and Considerations of Signing or Not Signing:
Contested family law can be costly. Legal fees for contested divorces can range based on case complexity, required motions, and court appearances.
Legal fees, surveys, and legal commentary commonly put contested divorces and complex or lengthy litigation in the range of tens of thousands of dollars for lawyers’ time. A practical range often cited for contested divorces or family law proceedings runs high for complex cases, depending on assets and disputes ( Canadian Lawyer legal fees survey), based on our review of available surveys and commentary.
Costs escalate when one spouse refuses to sign due to additional motions, discovery and hearings. Compare that to a properly drafted, negotiated and signed separation agreement, saved early in time and lawyer hours.
Trends and Statistics: Divorce and Separation in Ontario and Canada
Zooming out: Divorce rates in Canada have seen a long-term decline over the last few decades: from approximately 12.7 divorces per 1,000 married persons in the early 1990s, down to 7.5 in 2019, and further down to 5.6 in 2020 (Statistics Canada, 2020). Analysts attribute this decline to the rise in the age at first marriage, fewer people choosing to marry, the growing prevalence of common-law unions, and pandemic-related court backlogs.
Lifetime estimates are also common: estimates for the likelihood that a marriage will end in divorce commonly run around 38–40%. The practical question is that if annual rates have been dropping over the last three decades, a fair share of relationships are still at some risk of ending in divorce.
The decrease in annual divorces in Canada and Ontario has not meant a halt in relationship breakdowns, but often a shift: fewer divorces recorded, more people not marrying at all, or more common-law separations. When spouses don’t sign separation agreements, the disputes often get more heated and can contribute to the backlogs and delays shown in the national data (Vanier Institute commentary).
Why Legal Guidance Is Essential?
The legal process can be both technical and tactical. An experienced family lawyer can help by:
Clear advice on whether the proposed agreement meets the formalities of Section 55(1) and whether any factual circumstances raise a Section 56 set aside risk. (Family Law Act, s. 55; s. 56.)
Strategy on continuing negotiations, mediation, or whether to apply for interim court orders.
Legal protection of your financial interests, parenting rights and property. Avoid common pitfalls such as inadvertent waiver of rights, or agreeing under pressure to something you later regret. (Family Law Act, ss. 54-58)
Practical understanding of costs, potential timing, and when to compromise, or when to push back and litigate.
At GTA Divorce Lawyers, we have seen several cases like this. A spouse who won’t sign a separation agreement can be frustrating, but do not let it paralyse you. With our help, you can act with clarity and a legal roadmap.
Practical Checklist — What to Do Next?
If a spouse won’t sign a separation agreement, there are steps that you can take.
1. Document everything: - Save offers and counteroffers, and keep a record of emails, text messages, or other written schedules of attempts to negotiate in good faith.
2. Encourage independent legal advice: - Offer to pause for a short period for the other party to get independent advice. It can often remove a set-aside risk.
3. Try mediation: - Mediation can resolve problems quickly and cheaply if negotiation has stalled, but the threat of court or an application to court often accelerates resolution.
4. Pursue partial agreements if needed: - If there are uncontested elements, consider partial orders through consent orders or interim orders. It may at least provide interim stability for concerns like parenting and urgent financial support.
5. File for relief: - File for interim orders from the court to protect children’s stability or your financial security. Apply for relief rather than waiting.
6. Get legal help: - Early legal advice can evaluate the disclosure and financials, propose enforceable language, and suggest a reasonable timeline based on the facts.
Conclusion: Moving Forward When a Spouse Refuses to Sign
Refusal to sign a separation agreement is a hurdle, not an insurmountable one. The law does not reward stalling, but favours the reasonable. The national numbers tell part of the story: the overall divorce rate in Canada and Ontario has dropped significantly over the past few decades. The underlying stories about property, parenting, and support haven’t stopped, but more often have changed form, or have become protracted in ways that create the very gridlock those numbers reveal (Vanier Institute commentary).
If you find yourself facing such a situation, with a spouse who refuses to sign, the earlier you begin to document, engage in legal advice, and consider mediation, the more in control you are likely to remain. Don’t assume your rights are in limbo until you take some action. You are not the only one facing the latter.
If you’re ready to understand your options, without pressure and without the confusion, we are ready to listen. Contact GTA Divorce Lawyers.
.jpg)
