Family Lawyers Providing Advice on Separation Agreements in Ontario

A separation agreement is a domestic contract created under the Family Law Act of Ontario. It contains all agreed upon terms between spouses relating to the issues involved in their separation, including parenting matters, property division, and arrangements regarding the family home. Separation agreements in Ontario are a collaborative and private method for resolving outstanding family issues and provide a roadmap for the parties throughout their separation and even post-divorce.

At GDH Family Law, our family lawyers Vaughan draft separation agreements for clients that help tie up the legal loose ends after a separation. We make sure our clients’ legal rights are preserved and tailor the contract to the needs of each family’s unique situation. Where a client already has a drafted separation agreement, we can review it and advise on its suitability and renegotiate its terms to ensure our client’s interests are adequately incorporated.

What Does it Mean to Be “Separated”?

A couple is considered separated once one or both spouses express the intention to end the relationship and begin living “separate and apart” with no reasonable chance of reconciliation.

Spouses do not necessarily need to live in different residences to be considered separated. Some couples choose to remain in the family home after separation for financial reasons or to give their children time to adjust to the new family dynamic. Spouses who continue to live in the same home need to live their lives independently to be considered separated; for example, they no longer go to events or socialize together, they maintain independent schedules for their daily lives, or they sleep in separate rooms.

Determining the Date of Separation

Upon the breakdown of their relationship, a married couple must identify the exact date of their separation. In most cases, a divorce order can only be granted once the spouses have been living separate and apart for one year. The spouses must therefore identify the date of separation to show when the one-year period began.

The date of separation also acts as a benchmark for other legal issues affecting the parties. All family property is generally appraised for its value as of the date of separation. Those valuations are then used to determine the equalization of the net family property between married spouses, or division of property for common law spouses.

A couple’s separation also triggers spousal support and child support obligations and entitlements. Therefore, the date of separation is required when calculating retroactive support dating back to the time of the relationship breakdown.

Determining the date of separation can be complicated, particularly when separated spouses continue to live in the same residence. Courts will review the circumstances of the spouses and their relationship in determining the date of separation, including the following factors:

• When the spouses stopped preparing and sharing meals together;
• When they stopped attending events together;
• How household chores and responsibilities were divided between the spouses;
• How much the spouses coordinated their daily schedules; and
• When the spouses stopped sharing a bedroom.

A couple’s separation is highly contextual and can be affected by any attempts to reconcile. When one spouse chooses to end the relationship, a letter from their lawyer can be helpful to crystallize the date of separation. Where the spouses cannot agree, they may need to apply to the court to have a judge review the facts and set the date of separation.

Separation Agreements in Ontario

Separation agreements are vital for setting out the rights and obligations of the spouses throughout the separation and post-divorce. These agreements are used to settle as many of the outstanding legal issues between the spouses as possible, including:

• Parenting time (formerly known as “access”);
• Decision-making responsibility (formerly known as “custody”);
• Grandparent access to the children;
• Child and spousal support rights and obligations;
• Division of family property;
• Possession (or sale) of the matrimonial home;
• Valuation of any family businesses or shared business revenue and debts; and
• Division of pension and insurance benefits, as well as investments.

Creating a separation agreement requires both spouses’ full and honest financial disclosure, without which the court may invalidate the agreement.

Resolving matters amicably through the use of a separation agreement allows spouses to create their own “roadmap” for their family’s life from now on, particularly as the terms of a separation agreement can form the basis for the divorce order. This can be preferable to taking a dispute to court and having a judge’s decision imposed upon the parties.

Separation agreements also set clear expectations for the parties. This can reduce misunderstandings and provide a way for ex-spouses to resolve future conflicts without the need for costly and adversarial court proceedings. This is particularly desirable where the spouses share parenting responsibilities and maintain respectful communication for the foreseeable future.

Terms of Separation Agreements

Separation agreements contain all matters the separated couple have reached an agreement on, including:

• Parenting matters
  • Division of parenting time (access)
  • Decision-making responsibilities (custody), including health, education, religion
  • Parenting schedules, including pick up/drop off locations and times, holiday plans
• Child or spousal support
  • Amount of support to be paid/received, and by whom
  • Duration of support
  • Frequency of payments
  • Extraordinary expenses (for example, children’s extracurricular activities)
  • Circumstances upon which the support must be varied or terminated (for example, a party’s change in employment status or remarriage)
• Property and asset division
  • Division of accounts and assets, including pensions, insurance benefits, and investments
  • Business interests, including family businesses or professional corporations
  • Property excluded from division, such as inheritances and gifts
  • Exclusive possession or sale of the matrimonial home
  • Other real estate that is not the matrimonial home

Resolving as many outstanding issues as possible through a separation agreement keeps matters collaborative and offers more privacy for the family than a public court hearing and decision.

Creating a Separation Agreement in Ontario

A comprehensive Ontario separation agreement provides the family with clear expectations about the new family dynamic and status quo. It also helps separated spouses avoid misunderstandings and resolve any future issues between themselves, particularly as the spouses were instrumental in creating the agreement from the outset.

The terms of the separation agreement may form the basis for the final divorce order, thereby creating consistency in the family’s lives for the foreseeable future.

Through Negotiation or Mediation

The parties can create the terms of a separation agreement through negotiation or mediation. This can be preferable to taking a matter to court and having a judge’s decision imposed on the parties.

In a mediation process, the family mediator may create a Memorandum of Understanding (MOU) to record the terms the separated spouses have, “in principle,” agreed upon. The terms of the MOU are often incorporated into the separation agreement. However, the MOU itself is not a binding agreement unless it is signed and meets the standard requirements for separation agreements. A MOU is intended to give the parties time to reflect and confirm their positions without having to sign an agreement immediately after the mediation.

The Memorandum of Understanding may be turned into a separation agreement by one of the parties’ lawyers or by the mediator if they are a lawyer. The terms of the MOU are expanded upon in the separation agreement to clarify and give effect to the details discussed in the mediation process.

From a Pre-Existing Domestic Contract

The separation agreement’s terms may be adopted from any pre-existing domestic contract, like a marriage agreement or cohabitation agreement (where the couple is unmarried). However, these domestic contracts cannot address child support or parenting arrangements, which need to be determined at the time of separation.

Planning for Changes in Circumstances

To maintain a separation agreement’s efficacy over time, it must contain terms that set out when a variation of the agreement is required. A family’s circumstances change over time; for example, child support or parenting time and decision-making abilities may need to be adjusted as children get older. An effective separation agreement clearly sets out the events that trigger variations to the existing plans or payments.

Requirements for a Valid Separation Agreement in Ontario

A separation agreement in Ontario is only as strong as the financial disclosure it is based upon. Both spouses must fully and honestly disclose their entire financial picture, including income, assets, and debts so that the separation agreement will be as accurate and fair as possible.

Both spouses should get independent legal advice before signing the separation agreement. Their lawyers must ensure the parties fully understand how the terms of the agreement impact them and the consequences of signing.

Finally, there are formalities set by the Family Law Act of Ontario, which require the separation agreement to be in writing and signed by both parties in front of witnesses.

If any of these requirements are not met, a court may invalidate the agreement. Courts may also reject the agreement if its terms are unfair or do not prioritize the children’s best interests.

Template Separation Agreements

The use of “template” or “boilerplate” separation agreements has become more common in recent years and can be attractive to parties looking to avoid the cost associated with hiring lawyers. Separated spouses should not rely on template agreements given the critical legal issues at stake, particularly as these agreements may not meet the requirements of Ontario family law and may not appropriately protect the parties’ respective rights and interests.

GDH Family Law understands clients may only need assistance with one part of their separation. We offer unbundled “à la carte” legal services, including drafting separation agreements. We can also review a separation agreement that has already been prepared to ensure your rights and entitlements are properly represented.

Contact GDH Family Law for Advice on Separation Agreements in Ontario

A comprehensive separation agreement can reduce the unpredictability and upheaval after the breakdown of a relationship. They effectively resolve conflict and create a path for the family through the separation and divorce process.

GDH Family Law will listen to your concerns, create a tailor-made agreement for your family’s circumstances, and set clear expectations to avoid future disputes. We can also review an agreement that has been drafted elsewhere to make sure it represents your interests and can withstand judicial scrutiny. When the other party has failed to uphold the terms of the agreement, our skilled litigators can take your matter to court to enforce your rights.

GDH Family Law is based in Vaughan and helps clients throughout the surrounding areas, including Maple, Concord, Woodbridge, Markham, Kleinburg, Richmond Hill, Nobleton, Toronto, Newmarket, Aurora, Brampton, Caledon, Mississauga, Etobicoke, North York, Thornhill, and King City. For a free initial consultation on your family matter, contact us at 416-535-6944 or reach out online.