Parent Wants Separation Agreement Invalidated


While parents who are going through divorce or separation likely have a number of issues they disagree on, so when parties are able to arrive at agreements, especially without going to trial, it can be a relief for all involved. In a recent case heard by the Court of Appeal for Ontario, two parents had originally agreed on a number of important items relating to their child, but failed to formalize it in the courts and were left going to trial when a disagreement arose.

Ensuring care for a disabled child

The parents were married in 1996 and had one child, born that same year. The child suffered from developmental delays, cognitive impairments, and learning disabilities, and they agreed that will make her dependent of her parents for the rest of their lives.

The parents separated in 2003. They engaged in years of litigation before signing a settlement agreement in 2008. The agreement resolved all of their issues with the exception of child support. A review for child support did not take place until 2014. Before that issue went to trial, the parents signed an agreement that governed all issues and barred them from making any further claims against one another in regards to support for the child.

Settlement agreement is not made into a final order

Despite signing a settlement agreement, the parties did not formalize it by making it into a final order. Nevertheless, they did abide by the terms of the agreement for several years. It wasn’t until a provision of the agreement was followed through that conflict arose.

Paragraph 22 of the settlement agreement required an expert to review the provisions made to take care of the child, specifically, it said,

“The parties will jointly retain an expert to review the terms set out in this Order at paragraphs 1-15 to ensure that they do not compromise (the child’s) ability to receive ODSP [Ontario Disability Support Program] or other government funding and either party’s ability to set up a Henson Trust.”

In accordance with the provision, an expert in disability law was hired by the parents. The expert found that the child’s ability to receive ODSP benefits would be compromised. The expert made a number of recommendations to amend the agreement. However, the parents were unable to agree on whether the amendments should be put in place. The mother then asked the courts to find that the entire settlement agreement was not binding since it had not been submitted to the court.

Is the settlement agreement binding?

At trial, the original judge found that the settlement agreement constituted a binding separation agreement. The judge wrote that the parties have found a meeting of the minds on essential terms, and the agreement was intended to settle the issues it covered. If the agreement compromised the care that would be made available to the child, that gap was the responsibility of the parents to address but is not a reason to disregard its validity.

The Court of Appeal agreed, writing that the parties reached the agreement with the help of their lawyers, and acted as though it was enforceable for several years. The mother had introduced other arguments to invalidate the agreement to the Court of Appeal, but the ruling stated that new issues cannot be raised at that point.

To speak with an experienced Windsor family lawyer about child custody and support modifications, call 519.973.1500 or contact us online. Many of our clients are referred to us by former and current clients, as well as by lawyers, accountants and other professionals.



Can Courts Strike a Party’s Pleadings When Parenting Issues Are in Dispute?

a dad and son walking on a hiking trail

Can Support Arrears be Cancelled if the Payor’s Health Impairs Their Employment?

a woman pulling a card out from wallet

Independent Legal Advice Helps Ensure a Fair Bargaining Process

a white man and a white woman sitting down at a table