CanadaDoes a separation agreement limit my right to claim spousal support later?
A separation agreement can limit your right to claim spousal support later, but courts may set it aside if it’s unfair or fails to reflect current circumstances.
What the Law Says
The Divorce Act sets out the legal framework for spousal support in Canada, including how courts assess claims—even when a separation agreement exists.
Under the Divorce Act, a court has the authority to order spousal support based on the 'conditions, means, needs and other circumstances of each spouse.' This power applies even if the spouses previously signed a separation agreement that waived or limited support.
A separation agreement is a private contract, but it does not automatically bind the court. The Act gives judges discretion to make or vary support orders regardless of what the parties agreed to—provided the court finds it appropriate under the law.
Statutory TextA court may order either or both spouses to pay spousal support, considering the conditions, means, needs and other circumstances of each spouse.
— Divorce Act, s. 15.2 — Spousal support order
What Courts Have Said
The Supreme Court of Canada established a clear test for when courts should depart from separation agreements on spousal support.
The Court held that courts must apply a two-stage test: first, assess whether the agreement was negotiated fairly (e.g., with full disclosure and independent legal advice); second, determine whether the agreement remains fair and appropriate given current circumstances—such as major changes in income, health, or caregiving responsibilities.
What to Do
Review your separation agreement with a family lawyer to assess its enforceability and fairness at signing.
Gather evidence of any significant changes in circumstances since the agreement (e.g., job loss, disability, new dependents).
File an application to vary support in court if the agreement no longer reflects fairness or current realities.
Be prepared to show both how the agreement was made and why it no longer meets the objectives of the Divorce Act.
Sources
Not legal advice. This article is general information based on publicly available sources, written for educational purposes. Laws change and individual situations vary. Consult a licensed attorney in your jurisdiction before acting on anything you read here. Last reviewed: 2026-06-08.