When couples separate, it can be tempting to make informal changes outside of your separation agreement. These “side deals” may feel like quick fixes but often carry hidden risks. Below, we highlight the potential pitfalls of side deals in divorce and the safer alternatives Canadian families should consider.
A side deal is an informal agreement made outside the official separation agreement, such as an understanding that one parent will offer extra parenting time beyond what’s written, or that extra money will be paid “on the side.”
These kitchen table agreements or informal agreements can arise from a desire to avoid legal fees, foster goodwill, or address evolving life circumstances. However, despite the friendly tone, they lack the safeguards of properly executed, enforceable agreements.
Without a written, witnessed and legally reviewed document, memories fade and interpretations diverge. What one party meant as a permanent adjustment may seem temporary to the other—creating conflict and confusion, especially for issues like parenting responsibilities or support payments. Canadian Justice Department materials emphasize the importance of clarity in parenting arrangements and recommend written agreements to avoid misunderstandings.
These problems don’t just affect parenting. Side deals about spousal support or dividing assets can also create misunderstandings, especially if one party later denies agreeing to extra payments or transfers.
Simply agreeing informally—even in good faith—does not guarantee enforceability. For instance, child support agreements must be in writing and signed to minimize disputes, and a court may struggle to uphold an oral side deal.
If one party later regrets the arrangement, they may seek to nullify it—especially if they can argue it wasn’t entered into freely, fairly, or with full knowledge of the implications. Courts place greater weight on formal agreements that are properly drafted and reviewed than on informal side deals.
Legal enforceability hinges on full financial disclosure, voluntary informed consent, and absence of unfairness or duress. The landmark case Anderson v. Anderson (2023) addressed this exact issue: the Supreme Court of Canada upheld an informal separation agreement—even though it lacked independent legal advice and formalities—because both parties made an informed, fair, voluntary choice.
However, this case is highly fact-specific. The exception doesn’t mean you should depend on it.
Most of the time, agreements lacking formal safeguards may still be vulnerable, so relying on a side deal is risky.
Ensure your separation agreement is in writing, clear, comprehensive, and signed by both parties. This approach is what we recommend for all of our clients and is far less likely to invite challenges.
Explore mediation, negotiation, or collaborative law. These options allow you to shape agreements tailored to your family’s needs, with safeguards that boost enforceability.
Even though informal agreements have occasionally held up, requirements such as independent legal advice and full financial disclosure remain vital to protect your rights and reduce the risk of being overturned.
Have both parties consult separate lawyers before finalizing. A lawyer will ensure the agreement is fair, meets legal standards, and withstands scrutiny.
Relying on a side deal may feel like a shortcut, but it could cost you more in the long run. If you’re navigating a separation, the safest path forward is to have your agreement reviewed or drafted by experienced professionals. At Richmond Tymchuk Family Law, we work with you to create separation agreements that protect your interests, support your family’s needs, and prevent disputes down the road.
Contact us today to schedule a consultation and ensure your separation agreement is fair, clear, and enforceable.