What is a Separation Agreement?
A Separation Agreement is a comprehensive document that sets out the rights and responsibilities that each party will have following their separation whether they were married or cohabited without marrying.
Separation Agreements typically contain:
The family’s parenting plan which details how decisions will be made for the children, sets out their residential schedule and provides for parameters around parenting the children;
The parties’ child support obligations;
The quantum and duration of spousal support and/or a release of spousal support obligations;
The way in which the value of property will be divided between separating spouses;
What will happen to the matrimonial home(s);
Obligations relating to life insurance and extended health benefits; and
The process parties will follow in the event of a disagreement in the future.
How do we get to an Agreement?
There are a number of different paths from the decision to separate to the signing of a Separation Agreement. The result will be the same: a signed Separation Agreement setting out both parties’ rights and obligations. This can be achieved through mediation (link), direct negotiation between parties (usually with the assistance/advice of lawyers), “traditional” negotiation with lawyers representing parties, a Collaborative process (link), or a combination of all of these.
It’s also common for parties who are litigating in court to come to an agreement before they get to a trial, and they will enter into a Separation Agreement rather than asking a judge to make an order at trial.
Can I rely on a Separation Agreement?
A separation agreement is an enforceable legal document. It can be filed with the Family Responsibility Office for support enforcement if necessary. It will be recognized in the same way as a court order by lending institutions, Canada Revenue Agency and schools and service providers.
The legislation in Ontario provides that a separation agreement must be in writing and witnessed.
Of course, some agreements are better than others. For a separation agreement to be reliable the parties must make full and complete financial disclosure – proof of the value of their assets at date of marriage (if applicable) and date of separation and proof of income. An agreement may be set aside if the disclosure was incomplete or inaccurate.
Do we really need Lawyers to help us with this?
An agreement is more reliable (i.e. less vulnerable to being set aside by a court) where both parties have had independent legal advice, evidenced by a lawyers’ certificate setting out that the advice was given independently and the party did not sign under duress.
Experienced family lawyers know how to draft balanced, enforceable agreements that will stand up to potential scrutiny in the future. Consulting with a lawyer before signing a Separation Agreement can save time and money in the future.
Address: 165 Cross Avenue, Suite 301 Oakville, ON, L6J 0A9