Amending a Separation Agreement

When spouses decide to separate, they will usually enter a separation agreement to solidify their agreed-to financial and personal arrangements pending their upcoming divorce.  However, getting a divorce takes time, and it may later turn out that the separation agreement as drafted did not anticipate certain changed circumstances, or failed to adequately address one or both of the parties’ needs.  Alternatively, one or both of the parties may simply refuse to honour the agreement’s terms.

In such cases the separation agreement may have to be amended (or “varied” in law).   The easiest and most efficient way is for the parties to simply agree or consent to the amendment; the parties will usually have an amending agreement (or “addendum”) drafted by a lawyer.

If a consent amendment is not possible, then the parties may opt for negotiation, i.e. they may hire a third-party mediator or arbitrator to help them work through the needed changes.  The use of such a resolution tool may be expressly provided for in the original agreement itself.

Finally, if negotiation-based methods are not feasible or appropriate, the separated spouses may need to avail themselves of the court’s assistance in settling upon the amendments that are necessary.   Courts tend to do this only reluctantly:  since separation agreements are essentially freely-negotiated legal contracts between spouses, courts generally tend to treat them with deference.   New terms and amendments will be imposed only where a court deems it to be both necessary and reasonable in the circumstances, after several factors have been assessed.  These include the question of whether there has been a change in circumstances since the agreement was executed, and whether there was some duress or other unfairness at play at the time it was signed.  In this regard, the relevant considerations were set out by the Supreme Court of Canada in a 2009 decision called Rick v. Brandsema, 2009 SCC 10.

Shulman Law Firm is a Toronto-area firm of experienced Family Lawyers who can provide practical advice and effective representation in relation to separation agreements.  Contact us to set up a free consultation.

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