Separation agreements can be a useful means by which separating spouses can take first steps toward unwinding their financial and family-related affairs by way of a mutual agreement. Here is a list of the top five ways to ensure that a separation agreement is valid and enforceable in Ontario:
1. Make sure it covers the right topics.
The Ontario Family Law Act allows for two parties who cohabited and are now living separately to enter into an agreement in which they agree on their rights, which includes:
a) ownership/division of property;
b) support obligations;
c) the right to direct the education and moral training of their children;
d) the right to custody/access to children; and
e) any other matter in the settlement of their affairs.
2. Make sure it is freely negotiated.
If one of the spouses exerts undue psychological pressure on the other one, if the relationship is characterized by one party being psychologically or emotionally dominant over the other, or if the separation agreement was signed in a situation involving duress, then a court will likely strike the agreement down and render it void.
3. Get independent legal advice.
Time after time, courts have invalidated an agreement between spouses where one or both parties has failed to obtain independent legal advice. This normally means that both parties must have had separate legal representation, that each has had the opportunity to consult privately with his or her lawyer to fully canvass all the issues and repercussions, and that this has all taken place in advance of the parties signing the agreement.
4. Get the formalities right.
A separation agreement is like any other legal contract; only those who are of legal age and who have full mental capacity can enter into one. In addition, the Family Law Act adds other validity requirements for separating agreements (and other domestic contracts ): they are unenforceable unless they are made in writing, are signed by the parties, and are witnessed. (Having said that, on some rare occasions courts may find a separation agreements to be valid even if it did not comply with the Family Law Act`s requirements, as long as they met the usual requirements for the formation of a contract. For example, in Robinson v. Robinson, the first wife had signed a separation agreement that waived her right to her former husband’s pension. It had not been properly witnessed, and although the wife had intended to read it thoroughly and get legal advice on it, she never did. The court upheld the agreement nonetheless, finding that she had signed it willingly, had agreed to its terms, and had conducted herself and arranged her financial affairs as if there was a valid agreement in place. However, cases such as this one are the exception, and for the utmost certainty it is always a good idea to ensure that all the legal formalities relating to the creation of a domestic contract are complied with.)
5. Be clear on the terms.
This is very important – courts are filled with former spouses who mistakenly thought they had reached a mutually-acceptable separation agreement between themselves. In Schnarr v. Schnarr, for example, the spouses entered into a separation agreement that provided that the agreement became void if the parties cohabited for more than 90 days for the primary purpose of reconciliation. After a period of living together, the wife claimed the agreement had become void. However, the court disagreed, finding that although the parties had indeed lived together for more than 90 days, the husband mainly slept on the couch, and the wife remained argumentative, manipulative, controlling and showed interest in other men. In short, the wife had no intention of reconciling during that 90-day period in the manner contemplated by the agreement.
Separation agreements, when valid and freely-negotiated, can be a useful and important step towards the amicable resolution of the issues between separating spouses. Russell Alexander and our staff are available to consult with you on the creation or validity of separation agreements and other domestic contracts. Please visit www.russellalexander.com for more information.
For the full-text of the cited decisions, see:
Robinson v. Robinson,  B.C.J. No. 984; 2006 BCSC 663 (S.C.) http://bit.ly/hmQDzY