Separation Agreement Lawyers Toronto, Ontario

Separation Agreement in Ontario: What You Need to Know

Ontario divorce law stipulates that divorcing couples must demonstrate the breakdown of the marriage in one of three ways:

• One spouse has committed adultery
• One spouse is physically or mentally cruel to the other spouse, so much so that the victim can no longer live with the other spouse
• The couple shows that they have been living separately for at least one year

It’s this last requirement that makes a legal separation agreement important. Before the divorce can be granted, the couple must show that they have been living separately and apart for at least one year. A dated separation agreement can show how long you and your spouse have been separated.

You don’t have to file an official separation agreement to get a divorce, but when you have one in place, it’s easier to show the court that you have been separated for at least a year. There could be financial complications if you cannot agree with your soon-to-be-ex about the date you separated. It’s important to talk to an Ontario divorce lawyer about what your separation agreement can entail and how to draft one.

What Is the Purpose of Separation Agreements?

One purpose of the separation agreement is to memorialize the date you and your partner separated. All parties involved in the divorce, including the lawyers for both spouses and the Ontario family law judge, need to know the accurate separation date.

Other reasons to create a separation agreement are to document the details of spousal support, child custody, and child support.

Finally, the separation agreement can specify which party gets which assets and appropriately divide debts and liabilities.

Drafting a Separation Agreement

It’s always better to have legal advice when creating a Canadian separation agreement than using online separation agreement templates. An experienced Ontario family law lawyer can provide insight into your unique situation and dig into your finances to be sure your spouse fully discloses their financial situation.

Separation agreements can include the following:

• The effective date of separation
• Division of property and assets
• Division of debts and liabilities
• Child support and custody arrangements if the couple shares minor children
• Division of pensions and retirement accounts
• Methods of dispute resolution
• Anticipated date of divorce

Section 54 of the Family Law Act covers the details of separation agreements in Ontario and includes provisions about a wide variety of clauses that can be included in an agreement:

Dividing Marital Property

The separation agreement can outline how shared assets and property will be handled. This can include bank accounts, vehicles, jewelry, and other items. The agreement can detail whether specific items go to one spouse or the other or which property may be sold and its proceeds divided. This can quickly become contentious in many cases, so it’s important to work with a family law lawyer to represent your interests during the negotiation and drafting stages of your separation agreement.

Who Will Possess the Marital Home?

The agreement can also determine which spouse continues to live in the shared home or whether the house will be sold and its proceeds divided. It also may address a provision for one spouse to buy the other spouse out of their share of the home.

Child Custody, Access, and Child Support

In 2020, the Family Law Act was amended. The amendments changed the old terms “Custody” and “Access” to “Decision-Making” and “Parenting Time.”

A separation agreement may outline how decision-making responsibilities and parenting time will be shared or divided. It can also include guidelines for the decision-making process and avenues for how to resolve disputes should the parents be unable to agree on the necessary decisions for the children. The best interests of the child should be the guide in decisions made about decision-making and parenting time.

The separation agreement can set forth a specific schedule for parenting time and the details about who has access to the child at what time. This can include time during the school year, as well as school breaks, holidays, and birthdays.

At some point, one parent may move or relocate, so the agreement may include contingency plans for parenting time, decision-making, and time spent on holidays and school breaks if that occurs.

Each parent has the right to direct the upbringing, education, and moral training of their child. This covers things like deciding which school a child will attend, whether they will attend religious services, what medical care they may require, and even what kind of extracurricular activities they will attend. It can also include whether the child will attend French or English schooling.

The most recent child support table was updated in 2017. It specifies the amount the paying parent must pay based on the number of children they are to support, the province they live in, and the paying parent’s income. The agreement can also include extraordinary expenses related to the child, like paying school or sports fees, private lessons or tutoring, and test preparation.

Spousal Support

Not every Ontario separation agreement includes spousal support. If you and your spouse earn similar incomes, your separation agreement may not include this. However, many couples have an income imbalance for a variety of reasons, whether it’s because they have different career paths and opportunities (and thus unequal compensation and benefits), one parent has taken on the primary role of child-rearing and household management, or some other cause. In that case, the amount of spousal support and agreed-upon payment timetable should be clearly spelled out in the separation agreement.

Perhaps one or both spouses choose to waive spousal support. In that case, the separation agreement should reflect this. It’s important to have a separation agreement whether or not spousal support will be paid. Better to have the agreement in writing than to have an unpaid spouse come back later and claim that the parties agreed to spousal support payments. If you have an agreement showing both parties agreed that no spousal support would be paid, there would be no dispute.

Healthcare, Medical, and Dental Benefits

Negotiating separation agreements can also include providing benefits for the other spouse and any child. The separation agreement can include information about which parent will be responsible for medical and dental benefits for the children. Life insurance can also be a consideration for a separation agreement, as well. The agreement could dictate that one party must end a policy that names the other spouse as a beneficiary or that one party must establish life insurance policies to benefit any children the couple shares.

RRSP, Pensions, and Other Retirement or Investment Accounts

RRSPs and pensions are usually considered marital assets. Because that is so, they are to be divided equally between the parties. You can specify the amount of these accounts at the time the separation agreement is signed to establish the amount each spouse is entitled to.

Chastity Provisions

Any attempt to include a provision that is contingent upon the chastity of one party or the other will fail. These provisions are unenforceable. However, it is permissible to include provisions contingent upon one spouse cohabiting with someone else (such as if the spouse receiving spousal support begins cohabitation with another party, their spousal support payments will terminate).

Any Other Issues That Arise

If the couple owns a business together or one partner owns the business and the other works in it, any agreement they arrive at regarding the disposition of the business can be outlined in the separation agreement.

Dispute Resolution and Divorce Date

Even the best-negotiated settlement agreement cannot cover every eventuality that may arise in separation and divorce, especially if the couple has children. The agreement should outline a method for resolving disputes, such as going to mediation or arbitration.

The agreement may also have a clause permitting either spouse to file a simple, joint, or uncontested divorce and possibly a date that the divorce will be filed.

When Do I Need Help from Ontario Separation Agreement Lawyers?

A separation agreement isn’t the legal end of your marriage in Ontario. It can be challenged in court or its terms modified. That’s why it’s critical for you to have independent legal advice and a certificate of such attached to your formal separation agreement.

The certificate assures the court that you received legal advice about the contract and each side received full financial disclosure from the other side. The court also evaluates the separation agreement to ensure it satisfies the requirement of Canadian contract law and analyzes it to see if there are any of the following elements that could cause the Ontario separation agreement to be modified or nullified:

• Misrepresentation, wherein one spouse fails to provide the other with accurate or complete information about their finances.
• Undue influence, wherein one spouse exerted undue pressure on the other to sign the agreement due to being in a more powerful position. One example could be offering sole custody of a child in exchange for the other spouse waiving their right to a significant amount of marital assets.
• Unconscionability, in which the court views the terms of the agreement to be unfair, unjust, or inequitable.
• In which one spouse was under duress to sign the separation agreement.

An Ontario family law judge may also change the terms of the separation agreement to those more in line with what they view as being in the best interest of the child or children. A judge could determine that a different custody arrangement is in the best interests of the child or may order more child support.

Legal Separation or Divorce – Which Is Right for Me?

In some cases, a couple may opt to remain legally married but live separately. Divorce permanently severs the marriage, whereas, with a separation, the spouses may retain some of the benefits of marriage, such as one spouse remaining on the other’s health insurance or the parties retaining the legal rights to make decisions for the other if they become incapacitated.

Divorce completely severs any marital rights and responsibilities one spouse has to the other, both fiscal and legal. A separation agreement, while outlining the division of assets and debts and establishing child custody and any support, does not terminate the couple’s spousal rights.

Legally separated spouses may remain in the same home, may continue to hold joint debts and assets, and aren’t required to legally alter the ownership of any shared property, like real estate or interest in a business.

A separation agreement outlines the date of separation, which can protect you in case your spouse comes back later claiming that you were separated earlier than you said and that you owe extra child support, for example. It also can help you have more of a say in the division of property and the amount of time you spend with your children.

If you can come to an amicable separation agreement and custody arrangement, you may not need an Ontario family law judge to make the schedule for you. You may have more agency over how your post-break-up life looks by negotiating a division of marital property that you can live with rather than relying on the court, where anything can happen.

Do You Need a Separation Agreement Lawyer?

You may not realize all the rights you have during a separation or divorce, but with a skilled family law lawyer from M&Co Law on your side, you can trust that your rights and interests will be well-represented. We have a thorough understanding of Ontario divorce laws and separation agreement laws and can help negotiate a fair settlement on your behalf. Contact us today to learn more about how a legal separation agreement can benefit you.