By Neta, founder of SortMyDivorce · Updated
The offer was accepted. Then the draft agreement arrived, twenty pages where the offer was two, and it is not quite the same deal. Sometimes the differences are drafting: a number expressed as a formula, a date written as a trigger. Sometimes they are substantive, and they are almost never flagged. This guide is a method for reading a draft separation agreement against the offer it is supposed to record, followed by what the law in three provinces says makes the resulting document hold, because the same facts that let a draft drift are the facts that can later set an agreement aside. The comparison method applies anywhere. The enforceability section quotes British Columbia and Alberta statutes and Ontario's court form; Ontario's own statute on setting aside domestic contracts could not be read for this page. The separate guides on signing a separation agreement in Canada and a marital settlement agreement in the United States cover the clause-by-clause read; this one is about the gap between the offer and the draft.
| What a draft agreement is | The accepted offer, or the negotiated deal, turned into clauses by one side's lawyer. The drafter's choices are where the deal can move. |
|---|---|
| The method | Put the offer and the draft side by side. For every term in the offer, find the clause. For every clause, find the term. What is in one and not the other is the list. |
| Where drift hides | Definitions, dates and triggers, conditions, releases, and the mechanism for anything that happens in the future. |
| Ontario, on an accepted offer | Form 17C: "the accepted offer becomes a binding contract and can be turned into a court order that can be enforced against you." |
| BC, on setting aside | Family Law Act s.93(3): non-disclosure of "significant property or debts," taking "improper advantage of the other spouse's vulnerability," or a spouse who "did not understand the nature or consequences of the agreement." |
| BC, the "significantly unfair" route | s.93(5): even with none of those, an agreement may be set aside if "significantly unfair," considering the time passed, the intention to achieve certainty, and reliance. |
| Alberta, on form | Family Property Act s.38: each party acknowledges in writing, "before a lawyer other than the lawyer acting for the other party," that they know the agreement's effect, the claims they are giving up, and that they sign "freely and voluntarily." |
| Before you sign | Every difference between the offer and the draft is either accepted in writing, corrected, or explained. None is left unremarked. |
Keeping track of dates like these across a stack of letters is exactly what SortMyDivorce does — start a free trial, no card needed.
An offer is written to be accepted. A draft agreement is written to be enforced, usually by the lawyer whose client made or accepted the offer, and it has to say things the offer never did: what happens if a payment is late, what "the home" means if it is sold, whether the support figure changes with income, what claims each of you is giving up forever.
Every one of those additions is a choice, and each choice can favour one side. That is not bad faith. It is what drafting is. But it means the draft is a second negotiation, conducted in clauses instead of letters, and the party who reads the draft as a mere transcription of the offer is the party who loses that negotiation without noticing it happened.
Ontario's Form 17C states the stakes in the plainest terms available, in the note to the mandatory offer: "if the other side does accept it, the accepted offer becomes a binding contract and can be turned into a court order that can be enforced against you." The draft agreement is the document that will be turned into that order. What is in it is what will be enforced.
Put the last offer and the draft side by side. The last offer means the one that was accepted, or, if the deal was reached by a chain of letters, the letter that recorded the final terms. If you are not certain which letter that is, that uncertainty is the first finding.
For every term in the offer, find its clause. Number the offer's terms. For each, write the clause number in the draft that carries it. A term with no clause is missing. A term whose clause says something different is changed.
For every clause in the draft, find its term. Now go the other way. A clause with no term in the offer is new. It may be standard, it may be necessary, and it may be a substantive addition; all three are possible and only reading tells you which.
Read the definitions first. A draft agreement defines its words, and a definition can change a deal without touching the operative clause. "Income" defined to exclude a bonus, "the matrimonial home" defined to exclude the contents, "separation date" defined as a date other than the one you both used. Read every definition against how the offer used the word.
Then the dates and triggers. An offer says support is paid monthly. A draft says it is paid on the first, with a mechanism for a late payment. An offer says the house is sold. A draft says it is listed within a period, at a price set a certain way, with a decision procedure if it does not sell. Each mechanism is a place where the deal acquires terms it did not have.
Then the conditions. "Subject to," "provided that," "in the event that." A condition on an obligation is a way for it not to happen. Every condition in the draft is either in the offer or new.
Then the releases. Almost every separation agreement releases claims: to property, to support, against the estate. A release is the clause that decides what you can never come back for. The offer probably said nothing about releases; the draft will say a great deal. This is the section to take to a lawyer even if nothing else is.
Then the future. Reviews, variations, what happens on remarriage, on a child finishing school, on a change of income. The offer settled the present; the draft governs the future, and the mechanism it chooses is a term of the deal.
Write the list. Missing, changed, new. Each with the offer term and the draft clause beside it. That list is the response to the draft. Sending it to the other side is not reopening the deal; it is asking that the document record it.
The reason to be careful about the gap between the offer and the draft is not only that the draft is what gets enforced. It is that the circumstances in which the draft is signed are what a court will look at later if either of you tries to get out of it, and the provincial statutes say so in terms.
Section 93 of the Family Law Act applies "if spouses have a written agreement respecting division of property and debt, with the signature of each spouse witnessed by at least one other person." Subsection (3) lists when the Supreme Court may set aside or replace all or part of such an agreement, "only if satisfied that one or more of the following circumstances existed when the parties entered into the agreement: (a) a spouse failed to disclose significant property or debts, or other information relevant to the negotiation of the agreement; (b) a spouse took improper advantage of the other spouse's vulnerability, including the other spouse's ignorance, need or distress; (c) a spouse did not understand the nature or consequences of the agreement; (d) other circumstances that would, under the common law, cause all or part of a contract to be voidable."
Subsection (5) goes further: "Despite subsection (3), the Supreme Court may set aside or replace with an order made under this Part all or part of an agreement if satisfied that none of the circumstances described in that subsection existed when the parties entered into the agreement but that the agreement is significantly unfair on consideration of the following: (a) the length of time that has passed since the agreement was made; (b) the intention of the spouses, in making the agreement, to achieve certainty; (c) the degree to which the spouses relied on the terms of the agreement."
And subsection (4) is the counterweight: "The Supreme Court may decline to act under subsection (3) if, on consideration of all of the evidence, the Supreme Court would not replace the agreement with an order that is substantially different from the terms set out in the agreement."
Read paragraph (c) of subsection (3) against the method above. A spouse who "did not understand the nature or consequences of the agreement" is exactly the spouse who signed a draft without comparing it to the offer. The comparison is not only how you protect the deal; it is how you show, later, that you understood what you signed.
Alberta's Family Property Act makes the form of the agreement the test. Section 37(1) allows spouses to contract out of the Act's property division by "a subsisting written agreement with each other that is enforceable under section 38 and that provides for the status, ownership and division of that property."
Section 38(1) sets the requirement: "An agreement referred to in section 37 is enforceable if each party to the agreement has acknowledged, in writing, apart from the other party (a) that the party is aware of the nature and the effect of the agreement, (b) that the party is aware of the possible future claims to property the party may have under this Act and that the party intends to give up these claims to the extent necessary to give effect to the agreement, and (c) that the party is executing the agreement freely and voluntarily without any compulsion on the part of the other party."
Section 38(2): "The acknowledgement referred to in subsection (1) shall be made before a lawyer other than the lawyer acting for the other party or before whom the acknowledgement is made by the other party."
That is independent legal advice as a statutory condition. The acknowledgement is that you know the agreement's effect and the claims you are giving up. A lawyer taking that acknowledgement will ask what you understood the deal to be; the list of differences between the offer and the draft is the honest answer.
Ontario's Family Law Act has its own provisions on setting aside a domestic contract, including for non-disclosure and for a party not understanding the contract's nature or consequences. The Act could not be read for this page and its text is not quoted; the separate guide to signing a separation agreement in Canada covers Ontario's requirements on independent legal advice, disclosure and witnessing. The point for present purposes is the same as in BC and Alberta: what you understood when you signed is a question a court can later ask, and the comparison is how you answer it.
Every item on the list is resolved one of three ways. Accepted, in writing, because on reflection the draft's version is fine. Corrected, by the drafter, with the corrected clause checked again. Or explained, by your own lawyer, as standard and necessary. Nothing is left as an item you noticed and let go.
Do not sign the version you did not compare. Drafts go back and forth. A final version that arrives after three rounds needs the comparison done again against the last agreed round, because changes are not always where the last correspondence said they would be.
Keep the offer, the drafts and the list together. If the agreement is ever challenged, the record of what was offered, what was drafted and what you queried is the evidence that you understood it. In BC that record answers section 93(3)(c); in Alberta it is what your acknowledging lawyer will ask about under section 38.
Get the advice the statute contemplates. Alberta requires the acknowledgement before an independent lawyer. BC's section 93 asks whether a spouse understood the agreement's nature and consequences. Ontario's guide covers its own requirements. In every case the lawyer's job is easier, faster and cheaper if you arrive with the comparison done.
Verification note. Ontario's Family Law Act, section 56, on setting aside a domestic contract, could not be read from e-Laws for this page; the Ontario paragraph describes its subject matter from general knowledge and quotes nothing from it. Section 93(6) of the BC Act, on unwitnessed agreements, and section 37(2) to (5) of the Alberta Act, on pre-marriage and void-marriage agreements, were read but are not summarised. The comparison method is the author's, not a legal requirement, and does not replace independent legal advice.
A draft agreement will always contain clauses the offer did not, because it has to deal with mechanics, definitions and releases. The question is not whether it is allowed but whether each new clause is standard, necessary, or a substantive addition. The method above sorts them; your lawyer tells you which is which.
It can. A fixed amount and a formula that produces that amount today are the same today and may differ next year. Read what the formula does when the inputs change, and check whether the offer contemplated any change at all.
Ask for each change to be identified against the offer term it records. Drafting that records the deal accurately survives that request. Drafting that changes the deal does not, and the request is how you find out which you have.
In Ontario, Form 17C says an accepted offer "becomes a binding contract." Whether an exchange of letters amounts to a binding agreement, and whether it meets your province's formal requirements for a separation agreement, depends on the letters and the province. Do not assume either way; ask your lawyer before you rely on it or before you walk away from it.
In BC, under section 93, on the grounds quoted above, or where it is "significantly unfair." In Alberta, an agreement that does not meet section 38's acknowledgement requirement is not enforceable under section 37. Ontario has its own grounds. In each case the circumstances at signing are what the court examines, which is why the comparison and the advice matter.
Alberta's section 38(2) requires the acknowledgement to be made before "a lawyer other than the lawyer acting for the other party." BC's section 93(3)(c) asks whether you understood the agreement. Ontario's separate guide covers independent legal advice there. The drafting lawyer acts for your spouse; the separate guide on whether your spouse's lawyer can contact you directly explains what that means.
Last reviewed September 2026. Researched and written by Neta, founder of SortMyDivorce. I am not a lawyer and this is not legal advice — laws, fees and forms change, so please confirm current details with the official sources above or a local family lawyer.
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