Everything About Separation Agreements in Ontario

Essential Insights

• Understanding Separation vs. Divorce: Separation occurs when a couple decides to live apart, while divorce legally ends a marriage.
• Definition and Importance of Separation Agreements: A separation agreement outlines the rights and obligations of individuals who are separating, covering aspects like property division, support obligations, and parenting responsibilities.
• Benefits of Having a Separation Agreement: It can reduce stress, lower legal costs, and provide control over important issues, ensuring privacy and avoiding court proceedings.
• Legal Binding and Enforcement: Separation agreements are legally binding if they meet formal requirements and disclose all assets and debts.
• Flexibility and Amendments: Both parties may amend the agreement if they mutually agree and comply with legal requirements.
• Independent Legal Advice: Each party should obtain independent legal advice to validate the agreement and protect their rights.
• Cost and Filing: Legal professionals determine the cost based on the agreement’s complexity, and either party may file the agreement with the court.
• Enforcement and Legal Assistance: If one partner fails to comply, the other may enforce the agreement through a court order and seek help from a family law lawyer to uphold it.

What is the difference between a separation and a divorce?

You’ve probably heard these terms all the time as they are often used interchangeably. But as all things in law, each word has a different legal meaning and outcome.

Separation

A separation in Ontario occurs when a cohabiting couple, which can be a common law or married couple, decide to live apart from one another. If you are in a common law relationship or are married, you will be legally separated once you live “separate and apart” from your partner. It is important to know that a separation does not end a legally valid marriage. More on that below.

But first, you might be wondering what does it mean to live “separate and apart”? In many situations it means that people move away from each other and live in their own homes. However, the courts have also ruled that you can live “separate and apart” even if you live in the same house (Rushton v Rushton; Pennington v Pennington) This can happen in situations where one or both spouses do not have the financial means on their own to find another place to reside. In situations where spouses live together and it is more difficult to determine a breakdown of the relationship, the courts have considered different factors that indicate a separation (Cooper v Cooper; Pennington v Pennington).  The following is a non-exhaustive list of those factors:

1. Spouses occupying separate bedrooms
2. Absence of sexual relations
3. Little, if any, communication between spouses
4. Neither spouse performs domestic duties for the other
5. Spouses eat meals separately
6. No social activities with your spouse

These aren’t the only factors, nor do you need to prove each of them, but they help give an idea of what the court will want to see to determine if you and your spouse have in fact lived separate and apart. This concept of separation applies to both common law and married spouses. However, married spouses will remain legally married until there is a divorce.

 Divorce

As mentioned, only a divorce will end a legally valid marriage. It is a legal step that can only be taken by married couples. Divorces do not extend to those in common-law relationships. Under the Divorce Act there is only 1 ground of divorce, and that is marriage breakdown. Why does this matter? It matters because there are only 3 ways to establish a marriage breakdown.

1. Living separate and apart for at least one year before the determination of the divorce proceeding.
2. Adultery.
3. Physical or mental cruelty.

The most common way to establish a breakdown in the marriage is by demonstrating that you and your married spouse lived separate and apart for 1 year before the divorce proceedings (you can file for divorce sooner, but the proceedings cannot take place until the one-year time requirement has passed). Further, under section 8(3)(a) of the Divorce Act, at least 1 of the spouses must also have an intention to bring the marriage to an end.

What is a separation agreement?

A separation agreement is a vital legal document that plays a crucial role in the lives of individuals who are considering or undergoing separation. A separation agreement is classified as a domestic contract under Ontario’s Law Reform Act. Under section 54 of that Act, two persons who cohabited (married or common-law) and are living separate and apart may enter into an agreement about their respective rights and obligations. This includes:

1. the ownership in or division of property,
2. support obligations (spousal and child support),
3. the right to direct the education and moral training of their children,
4. the right to decision-making responsibility or parenting time with respect to their children,
5. and any other matter in the settlement of their affairs.

Why should you have a separation agreement?

A separation agreement is an important legal document that can help relieve stress and simplify the separation process. It is an agreement between you and the individual you cohabited with, whether through common law or marriage. A separation agreement helps to firmly determine important matters which can help reduce stress or uncertainty. It also helps lower legal costs, gives you control over how you deal with these important issues, and keeps the details of the agreement private.

How do separation agreements work?

A separation agreement is a contract that you make after separating with your common law partner or married spouse. The Family Law Act states “that two persons who cohabited and are living separate and apart” can create a separation agreement. A separation agreement will typically involve both parties coming to an agreement about various issues related to their family situation. Sometimes negotiation between both parties with separate lawyers is necessary. In some situations, both parties agree on their terms in advance and either draft the agreement themselves or ask a lawyer to prepare it. In these cases, they do not need to negotiate further. Once they write, sign, and have the agreement witnessed, it becomes a valid contract. Each party then has a contractual obligation to fulfill their responsibilities or risk facing legal action from the other party.

Do I have to be married to get a separation agreement?

Unmarried couples who lived together and are separating can also use separation agreements; they are not limited to married people.

How much do separation agreements cost?

The cost of separation agreements will  vary depending on the lawyer you work with, and the time it takes to get the agreement drafted. The more complex and the longer the agreement is the more money it can cost you. You can look at our rates for our family law services here.

Is it more or less expensive than court separation?

Going to court for any issue can be very costly. Going to court to determine things between you and your spouse could cost you tens of thousands of dollars. A separation agreement will save you a significant amount of money, not to mention time and stress in what could already be a highly stressful time for you. Court and lawyer fees can add up quickly. A separation agreement is a less expensive option that will ensure the rights and obligations of both parties are upheld after a separation.

Are separation agreements legally binding? Will they hold up in court?

Separation agreements are legally binding and will be held up in courts if they follow certain formal requirements. Section 55 of the Family Law Act requires parties to put domestic contracts in writing, sign them, and have them witnessed to make them enforceable. However, even if a separation agreement doesn’t meet these formal requirements, it may still be a valid contract unless a court sets it aside. A court can set aside a separation agreement in three circumstances:

1. If a party failed to disclose to the other significant assets, significant debts or other liabilities existing when the contract was made
2. If a party did not understand the nature of consequences of the domestic contract
3. Otherwise in accordance with the law of contract

It is important to be completely open about any assets or debts you have. Hiding these assets and/or failing to disclose them will expose the contract to being set aside by a court. It is equally important to make sure that both parties understand what they are agreeing to in the contract, and that neither party is taking advantage of the other by pressuring them or exploiting a vulnerability. Pressuring or rushing a partner into signing the contract can make it vulnerable. The court may set it aside if it finds signs of coercion. Keep this in mind when drafting a separation agreement. A lawyer can help ensure your agreement meets legal requirements and stands up in court.

Can I put anything I want into separation agreements?

Although two individuals have considerable flexibility in what they include in their separation agreement, the courts may set aside or disregard certain provisions, as outlined in section 56 of the <em>Family Law Act. For example, the courts will disregard a clause that requires one party to remain chaste after separation. Additionally, if the court finds a child custody or child support agreement unreasonable, it may also disregard that provision. It can be helpful to speak with a family law lawyer to understand what you can and cannot put into a separation agreement to protect your rights.

You don’t need to agree on every issue to create a separation agreement. You can make a temporary agreement for the issues you do agree on. This can help reduce stress while you and your partner continue negotiating. Once you resolve the remaining issues, you can create a new agreement that includes everything.

Do I need Independent Legal Advice for a separation agreement?

Independent legal advice is not required for a separation agreement, although it is often a good thing to have. You or the person you are separating from may want to have another lawyer provide independent legal advice on the terms in the separation agreement. If both parties refuse to get independent legal advice and are okay with one lawyer drafting the agreement for both sides, a court will not set aside the agreement for this reason alone ( Rosen v. Rosen). If you’re concerned or unsure about the terms of a separation agreement it is recommended to get independent legal advice to ensure that your rights are protected in the contract.

Can separation agreements be changed?

Yes, a separation agreement can be changed or amended, but this amending document will have the same legal requirements as a separation agreement. This means that you will need to have it in writing, signed by both parties and witnessed. So long as both parties agree to any changes and have them in writing, signed and witnessed, these changes will be valid. If you are specifically seeking to change provisions in the agreement that deal with spousal support, it may be possible for a court to set aside any provisions in the agreement (Miglin v Miglin).

What if my partner does not agree to any changes?

<p>Sometimes a partner may not agree to changing an agreement. Mediation may be a useful process to engage in first as it can be a cheaper option than going to court. If you’re considering altering a separation agreement it is a good idea to speak with a family law lawyer to understand your rights.</p>

When does separation agreements take effect?

Two people who have cohabited can create a separation agreement once they begin living separate and apart. Once they meet the legal requirements for being “separate and apart,” the law considers them legally separated. The agreement takes effect when both parties meet the validity requirements—writing it down, signing it, and having it witnessed.

Although you can make a separation agreement at any time after separation, there are time limits in Ontario in relation to going to court for a decision about the division of property. If you separate, you have 6 years from the day you separated to file a claim for division of property, or 2 years from the day your divorce is final (whichever is first). You should  speak to a family law lawyer as soon as possible if you have any questions or concerns about your separation or a separation agreement.

Where do I file a separation agreement?

You may file a separation agreement with the clerk of the Ontario Court of Justice or of the Family Court of the Superior Court of Justice. You must also file an affidavit (a written statement confirmed by oath) stating that the contract is in effect and that no court or agreement has set it aside or varied it. After filing these documents with the court, you can later use the court system to enforce the separation agreement.

How do I enforce a separation agreement?

You can enforce a separation agreement by filing it with the court. If your partner is not paying child support or spousal support outlined in the separation agreement, you may get help from the Family Responsibility Office in Ontario, which can help enforce those payments. If you want to enforce terms that are not related to support, you will need to go to court if you cannot come to an agreement with the other party. This can be a stressful and expensive process and you might be able to accomplish enforcing it through communication with the other party or through mediation.

Do I need a lawyer for a separation agreement?

You don’t need a lawyer to create a separation agreement, but seeking legal assistance is strongly recommended. An experienced family law lawyer can help y

ou avoid uncertainty, protect your rights, and ensure the agreement is valid and enforceable. The lawyer will work with you to confirm that you’re fully satisfied with the agreement before you sign it.

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