Separation Agreements vs. Court Orders: What’s the Difference?

When a relationship ends, one of the biggest questions is how to settle the practical issues including parenting time, child or spousal support, and property division. In Alberta, there are two main ways to create legally binding arrangements: through a separation agreement or a court order. While both can address the same issues, the process and impact of each can be very different. Understanding the distinction can help you choose the path that’s right for your situation.

What Is a Separation Agreement?

A separation agreement is a private, written contract between you and your former spouse or partner. It sets out how you’ve agreed to handle matters such as parenting, support, and property division.

Some key features of a separation agreement:

• Voluntary: Both parties must agree to the terms. No judge imposes the outcome.

• Independent Legal Advice (ILA): To be enforceable, especially for property division under Alberta’s Family Property Act, each person should receive their own legal advice before signing.

• Legally Binding Limits: While agreements are flexible, they cannot override statutory requirements. For example, parties cannot contract out of the Federal Child Support Guidelines minimum amounts for child support. Courts have the power to set aside agreements that are unfair or contrary to legislation.

• Flexibility: Within those legal limits, you can tailor the agreement to suit your family’s unique needs.

• Cost-effective: Drafting and negotiating an agreement is usually less expensive and faster than going through court.

Courts generally respect separation agreements, particularly if they were negotiated fairly and with full financial disclosure. The Supreme Court of Canada confirmed this in Miglin v. Miglin, 2003 SCC 24, and again in Rick v. Brandsema, 2009 SCC 10, emphasizing that agreements reached through informed negotiation should be upheld. On the other hand, agreements may be set aside if important financial information was concealed, or if they fail to meet statutory requirements.

What Is a Court Order?

A court order is a decision made by a judge. You might obtain one if you and your former partner cannot agree, or if urgent issues need resolution (such as immediate safety concerns or financial support).

Some key features of a court order:

• Binding by law: Court orders must be followed. Failure to comply can result in enforcement actions.

• Decision-maker: The judge decides based on the evidence. For example, in matters involving parenting time, the best interests of the child (under the Divorce Act or Family Law Act) are what guide the decision-maker, not necessarily any compromises made between the parties.

• Procedural requirements: Court proceedings often involve multiple appearances, formal applications, and can take months or even years.

• Costs and stress: Litigation tends to be more expensive, time-consuming, and stressful than reaching a private agreement.

Court orders are often necessary in high-conflict situations, where one or both parties are uncooperative, or when there are concerns about safety, abuse, or hidden assets. Parenting disputes, for example, may require judicial input guided by the best interests test from cases like Gordon v. Goertz, [1996] 2 SCR 27.

Which Option Is Right for You?

The choice between a separation agreement and a court order depends on your circumstances:

• If you and your former partner can communicate and compromise, a separation agreement is often the preferred option. It allows you to stay in control of the outcome and minimize legal costs.

• If cooperation isn’t possible, or urgent issues require immediate intervention, a court order may be necessary to ensure your rights (and your children’s rights) are protected.

It’s also worth noting that many families use a combination of both. For example, you might resolve property and support through a separation agreement but still require a court order for parenting arrangements.

---

Final Thoughts

Both separation agreements and court orders can provide clarity and stability during a difficult time. The key difference lies in how the outcome is reached – through negotiation, or through a judge’s ruling. Neither option is “better” in every case, but understanding their differences (and the laws that govern them) can help you make an informed choice.

If you’re unsure which path is right for you, consulting with a family lawyer can provide valuable guidance. At Stokes Law, we help clients navigate both agreements and court processes, always with the goal of protecting their interests and reducing conflict where possible.

BOOK A CONSULTATION