Non-Disparagement Clauses in Separation Agreements in Ontario

When you’re going through a particularly rocky separation or divorce, conflict between you and your former spouse can get intense. When one person starts making disparaging comments or posts about the other, the process can get more complicated. This is especially true when you share children who may be subject to the negativity. Many individuals experiencing this might wonder: is there a way to stop a person from making disparaging comments once we’ve separated?

Non-disparagement clauses can be incorporated into separation agreements in Ontario when you’re dealing with negativity from an ex-partner. Although they are allowed, they are relatively uncommon and may not be legally binding. Our family lawyer, Paul Slan, explains what non-disparagement clauses in separation agreements are and how they function in the province.

At Gelman & Associates, our Toronto family lawyers help families navigate their separations and divorces efficiently. Whether you need help negotiating your separation agreement or require representation in court, we’re ready to assist. To discuss your situation with our legal team, schedule a consultation today.

What is a Non-Disparagement Clause?

A non-disparagement clause is a provision that can be incorporated into a legal agreement that restricts parties from saying certain things. In addition to family law, non-disparagement clauses are common in employment agreements and other types of employment contracts.

In the context of family law, non-disparagement clauses are meant to prevent one or both parties from speaking negatively about each other. This type of clause is often desired in cases where separated partners share children and they don’t wish for them to become involved in the conflict. Non-disparagement clauses also aim to protect the reputation of parties.

Are Non-Disparagement Clauses Legally Enforceable?

Although non-disparagement clauses may sound like a good idea for spouses involved in a highly contentious separation, they are rarely enforceable in practice. There are several reasons you may face challenges when attempting to have a non-disparagement clause enforced, including:

• Difficulty proving a party made a genuinely disparaging comment
• The reliability of children’s testimony (e.g., repeating negative comments one parent made) may be questioned by courts
• Judges may only issue warnings in response to disparaging comments rather than legal actions

For this reason, although a non-disparagement clause can be included in a separation agreement, it may not be reflected in court orders. In many cases, parties might instead use a non-disparagement clause in a symbolic or goal-oriented way.

It’s important to note that disparagement or disparaging actions, while unpleasant, do not constitute parental alienation. Parental alienation is a serious, legally recognized issue that occurs when one parent intentionally tries to turn a child against the other. Proving parental alienation often involves the presentation of evidence and can significantly impact decisions about decision-making responsibility and parenting time. Generally, parental alienation cases exist beyond the scope of disparagement clauses in separation agreements.

How Can a Lawyer Help With a Non-Disparagement Clause?

Although they are not generally legally enforceable, it is still possible for you and your lawyer to incorporate a non-disparagement clause into your separation agreement. In many cases, these types of clauses can help promote respectful communication and set clear expectations for your relationship with your former partner moving forward.

In the event that your former partner does engage in clear public or reputational damage, your lawyer may be able to:

• Send a formal warning letter, or
• Request that they comply with the non-disparagement clause

Due to limited legal remedies, they may not be able to escalate any further.

It is worth noting that within family law in Ontario, it is widely accepted that children should not be exposed to legal disputes. Many judges believe this to be trite law, as there is an inherent harm caused to children who are exposed to conflict or negativity between parents. For this reason, there may be consequences for ongoing disparagement by one or both parents, including:

• Emotionally distressed children
• Expert assessments (e.g., child psychologists) that identify psychological harm in children has taken place
• Poor reflection on the disparaging parent in court proceedings

Are You Going Through a Contentious Separation or Divorce? Contact Gelman & Associates Today for Legal Advice

While non-disparagement clauses can be helpful tools to promote healthy communication, they are not necessarily legally binding. This is because it is hard to monitor disparaging behaviour, prove that it took place, and prevent it from happening again. If you’re thinking about including a non-disparagement clause in your separation agreement, it may be helpful to view it as a guideline or goal to achieve.

At Gelman & Associates, our Toronto divorce lawyers have years of experience helping spouses draft their separation agreements. Whether you require mediation services or you need assistance litigating in court, we can assist. To schedule a consultation and discuss your legal options, contact us today.