We Both Signed It - Why the Court Set Aside a Separation Agreement
What happens when a signed separation agreement contains conflicting dates, inaccurate parenting terms and no exchange of financial disclosure? Can one spouse still rely on its spousal support waiver years later?
The Ontario Superior Court of Justice considered these issues in U.K.S. v. R.S., 2026 ONSC 4755, released August 18, 2026. The parties’ names are abbreviated in this article.
Justice Breithaupt Smith set aside the agreement in its entirety. The court also determined a separation date that neither spouse had proposed, showing why the document and the parties’ actual conduct both required careful examination.
A Signed Agreement with Conflicting Terms
The parties signed the document in July 2016. The husband wanted it upheld and sought to rely on its spousal support waiver. The wife argued that it should be disregarded.
They also disagreed about when their marriage had finally broken down. The husband proposed late 2008 or early 2009. The wife maintained that, following periods of reconciliation, the marriage continued until September 2021.
This was a focused trial about the agreement’s enforceability and the separation and valuation dates. The remaining substantive financial issues were left for determination later.
The Problems Went Beyond the Signatures
The court identified several serious concerns with the document and the circumstances surrounding its execution:
Conflicting dates: Although signed in 2016, the document contained attempts to backdate it. References to 2012 were changed to 2009 on the first and last pages, while a child support clause still referred to January 1, 2012.
Inaccurate parenting terms: The agreement described equal parenting, although the parties’ son was primarily living with the husband outside Canada.
No financial disclosure: It was undisputed that the parties had not exchanged financial disclosure before signing.
A sweeping child support waiver: The document attempted to waive any future child support claim regardless of changes in financial circumstances.
Concerns about understanding and pressure: Both spouses gave evidence that they had signed without understanding the document’s contents and legal impact, or under duress. The husband linked his signing to the wife’s refusal to sign their son’s travel documents.
There was also unreliable evidence about precisely how and when the signatures had been witnessed. Neither spouse called the person said to have witnessed their signature. The witnesses had not initialled the changes to the dates, a concern the court considered significant in light of the uncertainty surrounding execution.
That last finding was specific to this record. It should not be read as a ruling that every handwritten amendment lacking a witness’s initials automatically invalidates an agreement.
Why the Court Set the Agreement Aside
The judge’s assessment was direct:
“Neither had the benefit of legal advice; each signed under a state akin to duress, as a result of being influenced by other external factors.”
The court found that the document did not reflect the parties’ actual circumstances and that both had signed without understanding the other’s finances or the agreement’s long-term implications.
It set aside the entire agreement under sections 55(1), 56(1.1) and 56(4)(a)–(c) of the Family Law Act. Those provisions address execution requirements, scrutiny of child support terms, and grounds for setting aside domestic contracts.
Because the whole agreement was unenforceable, the court did not need to decide whether the spousal support release was separately unenforceable or whether a later reconciliation would have voided the agreement under its own terms.
The Role of Independent Legal Advice
The decision should not be reduced to a rule that an agreement fails whenever someone signs without a lawyer.
The court reviewed the framework in MacEwen v. Daljit, 2026 ONCA 398, which recognizes the importance of respecting negotiated settlements while examining vulnerabilities, external pressures and procedural safeguards.
Independent legal advice and financial disclosure are important safeguards. Their absence does not necessarily invalidate every domestic contract, just as their presence does not settle every challenge.
Here, the court considered the combined problems: inaccurate terms, inconsistent dates, no financial disclosure, lack of understanding, pressure and uncertainty about execution.
Did Later Contact Mean They Had Reconciled?
The separation date required a separate assessment.
The parties remained legally married and continued to have contact. The evidence included financial assistance, family visits and intimate electronic communications continuing into 2021. In 2017, the husband also purchased a property in which the wife could live.
The court considered those facts within the relationship as a whole. It found that their finances had been separate since at least 2009, they had not resumed cohabitation, and the housing arrangement was a mutually beneficial business arrangement rather than a reconciliation.
Applying the framework in Kassabian v. Marcarian, 2025 ONCA 239, the judge assessed their relationship, financial arrangements, interactions with others, formal steps toward separation and efforts to resume cohabitation.
The court fixed March 3, 2014 as the separation and valuation date. That was when the husband left to work in Thailand with their son, with no reasonable prospect that the spouses would resume cohabitation.
The later contact did not establish reconciliation on these facts.
The Final Result
The court ordered that:
the agreement signed on or about July 29, 2016 be set aside in its entirety;
March 3, 2014 be the separation date under the Divorce Act and valuation date under the Family Law Act; and
each spouse bear their own costs of the focused trial.
These findings would guide the remaining financial issues. The decision did not determine the final support or property awards.
Separation Agreement Lawyer Ottawa
A separation agreement should accurately record the settlement and be supported by a process that allows each person to understand its consequences.
Davies & Maxim LLP assists with negotiating, drafting and reviewing separation agreements, as well as disputes about their enforceability. Looking for an Ottawa separation agreement lawyer? Contact our Ottawa family law office to discuss your circumstances.
