What Is a Memorandum of Understanding in Ontario?
Plain-Language Definition of an MOU
The MOU is drafted by the mediator after mediation sessions are complete, based strictly on what the parties agreed to. It is not legal advice and does not favour one party over the other. Its role is to document the consensus reached, not to impose new terms or legal opinions.
Purpose of an MOU in Family Mediation
Key purposes of an MOU include:
- Providing a clear, organized summary of all agreements reached
- Reducing the risk of future misunderstandings or conflict
- Creating a reliable foundation for Independent Legal Advice (ILA)
- Serving as the working document for drafting a formal separation agreement
What Issues Are Typically Covered in an MOU
Parenting Arrangements and Decision-Making Responsibility
This section usually outlines:
- How major decisions about the child’s education, health care, religion, and extracurricular activities will be made
- Whether decision-making responsibility is shared or allocated in specific areas
- How parents will consult each other on important matters affecting the child
Parenting Time and Schedules
This section commonly includes:
- Regular weekly parenting schedules
- Weekend, holiday, and vacation arrangements
- Pick-up and drop-off logistics
- Procedures for schedule changes or make-up parenting time
Child Support and Spousal Support Terms
Typically addressed in this section:
- Child support amounts based on the Child Support Guidelines
- Payment frequency and method
- Responsibility for special or extraordinary expenses
- Spousal support arrangements, if applicable, including amount, duration, and review terms
Property Division and Financial Arrangements
This section may cover:
- Division of assets and debts
- Treatment of bank accounts, pensions, investments, and credit cards
- Arrangements related to the matrimonial home, such as sale, transfer, or continued occupation
- Responsibility for ongoing expenses and future financial obligations
Communication and Dispute-Resolution Clauses
Common elements include:
- Preferred methods of communication (email, parenting apps, scheduled check-ins)
- Expectations for respectful and child-focused communication
- Agreement to return to mediation before pursuing court proceedings
- Steps for resolving disputes if disagreements arise
From MOU to Separation Agreement
Steps Involved After Mediation Concludes
Once the MOU is completed, it is typically provided to each party at the same time to ensure transparency and fairness.
At this stage:
- Mediation is considered complete
- No new terms are added unless both parties agree
- The MOU serves as a summary of consensus, not legal advice
Lawyer Review and Legal Drafting
A lawyer’s role at this stage is not to renegotiate the entire settlement, but to:
- Explain legal rights and obligations under Ontario family law
- Identify any legal risks or missing provisions
- Ensure full financial disclosure was provided
- Confirm that the agreement is fair, informed, and enforceable
Converting an MOU Into a Legally Binding Agreement
To be enforceable in Ontario, the separation agreement must:
- Be in writing
- Be signed by both parties
- Be witnessed
- Be entered into voluntarily and with full financial disclosure
Once signed, the separation agreement carries significant legal weight. It can govern parenting arrangements, support obligations, and property division in the same way a court order would, provided it complies with Ontario family law.
Filing or Relying on the Agreement if Court Involvement Occurs
In many cases, a separation agreement is never filed with the court and is simply relied upon by the parties moving forward. However, if court involvement becomes necessary, the agreement plays a critical role.
For example:
- Separation agreements are often filed as part of an uncontested or joint divorce
- Parenting and support terms may be incorporated into court orders
- Courts generally uphold valid separation agreements unless there are serious legal concerns
Importance of Independent Legal Advice (ILA)
Why Each Party Must Consult Their Own Lawyer
A mediator must remain neutral and cannot provide legal advice. Independent Legal Advice fills that gap by:
- Explaining each party’s rights and obligations under Ontario family law
- Ensuring the party fully understands the consequences of the agreement
- Confirming that the agreement was entered into voluntarily and without pressure
Protecting Against Unfair or Unenforceable Terms
Even when mediation is conducted in good faith, issues can arise if:
- Financial disclosure was incomplete or unclear
- One party did not understand the long-term impact of support or property terms
- Parenting or support arrangements conflict with legal standards
Without ILA, an agreement may be vulnerable to challenge, which can undermine the very certainty mediation is meant to achieve.
Ensuring Compliance with Ontario Family Law Requirements
Independent Legal Advice also ensures that the final separation agreement complies with Ontario’s legal framework. Lawyers review the agreement to confirm it aligns with:
- Child support guidelines and the best interests of the child
- Spousal support principles, including entitlement and duration
- Property division rules and disclosure obligations
- Formal execution requirements, such as proper witnessing
Situations Where an MOU May Not Be Appropriate
Power Imbalances or Coercive Control
When there is a significant power imbalance between the parties, an MOU may not accurately reflect genuine agreement. Power imbalances can arise from:
- Financial dependence or lack of access to information
- Emotional manipulation or intimidation
- One party dominating discussions or decision-making
Family Violence Concerns
Where there is a history of physical violence, threats, or ongoing fear, mediation may not be safe or effective.
In Ontario:
- Mediators are required to screen for family violence and power imbalances
- Mediation may be declined or modified if safety cannot be ensured
- Alternative processes, including legal representation or court involvement, may be more appropriate
Lack of Good-Faith Negotiation
Mediation and MOUs depend on both parties negotiating honestly and transparently. An MOU may not be appropriate if one party:
- Withholds or misrepresents financial information
- Refuses to engage meaningfully in discussions
- Uses mediation as a delay tactic rather than a resolution process
