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What is a Separation Agreement in Ontario?

business woman signing agreement

What is a Separation Agreement?

  • A separation agreement is a contract between two people who used to live together and are now living apart.
  • The separation agreement can explain each person’s rights and obligations upon their separation, including:
    • Any issues regarding property and its division (ie: Who keeps the car? Are we selling the house? Do we have to share our bank accounts?)
    • Financial support for each other or any children of the relationship;
    • Who is responsible for caring for the children?
    • Where will the children live?
    • Any other issues that might come up as a result of the separation.

Do I need a Separation Agreement?

  • No one needs a separation agreement to be legally “separated”. Once you or your spouse has decided to separate, and have no intention to resume your relationship, you may be considered separated – even if you’re living under the same roof.
  • A separation agreement provides the peace of mind of knowing that your issues have been settled.
  • Having a clear understanding of what your rights and obligations are to your former partner or spouse can reduce tension and conflict that often arises during this difficult time.

Can I draft my own separation agreement?

  • You do not need to have a lawyer draft your separation agreement.
  • A separation agreement is considered a legally binding contract if it is signed by both parties, in the presence of a witness, and dated.
  • There are many reasons why you may want to hire a lawyer For example:
    • In order for your agreement to “stick”, you must understand the interplay between the legislation that governs these types of agreements, to ensure your agreement is written in accordance with the law;
    • To get a full understanding of what it is you are exactly “agreeing” to; and
    • To understand the full scope of your rights under the Family law.
  • If you are thinking of doing your separation agreement, make sure you:
    • Are thorough in what you cover in the agreement;
    • Are precise in the language use, to avoid multiple interpretations of the agreement in the future;
    • Confirm the facts, and ensure that all dates, names, account numbers, addresses, etc., are listed accurately;
    • Are specific in listing all assets – Individual or family assets should be itemized and described in great detail, to avoid uncertainty and confusion;
    • Avoid using a “kit” – it is dangerous to use any precedent unless you fully understand its meaning and the legal implications; that’s what lawyers are for;
    • Avoid using “boilerplate” clauses; make sure that the clauses cover your particular circumstances specifically;
    • “Predict” the future; make sure your agreement gives you a mechanism of addressing any possible changes in the future;
    • Are realistic; any provisions in your agreement that are unrealistic or too difficult to abide by should be avoided. Unrealistic clauses open both parties up to a breach of the agreement, and potential conflict.
    • Have the agreement reviewed; a second opinion by a trained professional may bring matters to your attention that may have been overlooked.

How can I make sure my agreement is valid?

  • Once you have decided to have an agreement completed, you want to make sure it is valid, and that it will stand up to scrutiny by the Court, if the agreement is ever disputed.
  • Make sure you are open and provide full disclosure to your spouse.
  • Make sure it is freely negotiated – If one of the spouses exerts undue 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.
  • Get independent legal advice.

[While we have you here, we wanted to remind you that you can get the latest articles delivered to your inbox, Sign up here or listen to our Podcast Family Law Now.]

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com

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