Separation Agreements

Whether or not you were legally married, a separation agreement is a useful way to ensure that you and your spouse agree on the major issues that inevitably arose when your relationship terminated, namely: property division, spousal and child support, and custody and access of the children.

Particularly in cases of divorce, a separation agreement can help ensure that your spouse will not contest your Divorce Application, and avoid the possibility of litigation, which will not only benefit you financially, but will also save you time and the emotional stress that so often comes with litigation.

What can my separation agreement include?
A separation agreement is a domestic contract. It can include virtually anything you and your spouse would like, as it is not limited to what the law requires or what a Judge would order. That said, there are a number of points a separation agreement should include.

1. Preliminary information. The contract should outline basic information such as the names and dates of birth of the parties and any children, the date of cohabitation, marriage and separation and an outline of what the parties intend to achieve by signing the agreement.
2. The children. The contact should set out the parties’ agreement pertaining to may make the major decisions for the children, consultation requirements, and a detailed parenting schedule. The contract can also set out travel and mobility rights, as well as which party has the authority to maintain the children’s legal documents.
3. Support. The contract will set out the amount of child or spousal support any party owes. This section typically requires full and frank financial disclosure from each party, in order to be binding at a future date.
4. Property and Debt. The contract should set out the division of property and any debt held by either party. If property needs to be disposed of, the conditions around their disposition can be included as well.
5. Other. The contract can include any other terms and conditions of the separation, including an obligation to maintain life insurance, dental and medical benefits, and other agreements pertaining to pensions, savings plans, etc.

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Is a lawyer necessary?

Separation agreements are not always automatically recognized by the courts. It is important that your separation agreement is clear in what it sets out, and that legal advice is provided, which can only be obtained from an Ontario lawyer. If both parties do not have independent legal advice, or independent legal advice is not waived, it is unlikely that such an agreement would be enforced by the courts. Ontario lawyers that focus on family law are able to draft agreements that reflect the current law, wishes of the parties and draft agreements that should withstand a court challenge.

Furthermore, parties wishing to enter into a separation agreement must exchange financial disclosure in order to determine their Net Family Property and equalization rights. This can be complicated, depending on the number and types of assets owned by you and your spouse. A lawyer can help you understand the financials, and advise you of your rights.

Consulting or retaining a lawyer will not only ensure that your agreement is valid, but will also allow you to make informed decisions.