Everything You Need to Know about drafting a Separation Agreement in Ontario
It is possible for people, either married spouses or those living common-law, to make the decision to end their relationship as a couple. When this happens, the couple can choose to create a separation agreement in Ontario, which outlines how aspects of the relationship will be maintained or changed going forward. This is often referred to as a Separation Agreement in Ontario.
A separation agreement in Ontario is not a divorce, but living separately for a year is one of the recognized grounds for divorce in Ontario. Keep in mind, living separately does not mean one person has to leave the couple’s home, in fact, some separated couples continue to live in the same residence, but they no longer identify as a couple or do things together as a couple.
A formalized separation agreement in Ontario helps to avoid conflict while allowing the couple to have a clear understanding and stability in the future as to financial issues, assets, and debts, division of property, as well as all aspects of the parenting and care of the children. It is also a way for the couple to work together through the separation to create a plan that is customized and tailored to their unique needs and choices.
The ability to enter into a settlement agreement also prevents the need to go through the court system. This allows for additional privacy for the couple and also lays the groundwork for a joint or uncontested divorce in the future.
Who Can Create a Separation Agreement in Ontario?
There is no legal requirement to have a lawyer involved in the development of the separation agreement in Ontario. There are online packages, templates, or programs as well as books and kits available as do-it-yourself separation planning tools.
There are some issues and very significant risks to using these pre-packaged types of separation agreement tools. These are based on general information applicable to most couples going through a separation, and they do not address specific issues, or challenges couples may face.
They also require that the two parties to the agreement have the same ability to understand and interpret the information. When this is not the case, one party to the separation is at a definite disadvantage and may end up agreeing to stipulations in the document that are not in their best interest. As these types of agreements are often costly to modify or reverse, hiring a Family Lawyer to draft a separation agreement after you have worked through the basics is often the most cost-effective option.
If one Family lawyer is used to draw up the separation agreement, be sure to get Independent Legal Advice before signing. This is an independent lawyer who reads the agreement in Ontario, checks relevant documentation, and provides information as to the terms of the separation agreement for both short and long-term consideration. Getting ILA means that you have a professional working on your behalf, answering questions, and providing information on the agreement and its implications in your life with your best interests in mind.
It is also possible to work with a mediator, a neutral third party, to discuss issues and develop an agreement. The mediator asks questions, assists in managing the emotions around the various topics in the agreement, and helps to structure a framework to have a productive conversation. Each party may choose to have a lawyer present for the mediation or to simply review the tentative agreement or Memorandum of Understanding that comes out of the mediation. The lawyer can then formalize the language into a separation agreement.
What Should We Include in our Separation Agreement in Ontario?
The specific matters included in any separation agreement are based on the issues that are relevant to the couple. It can include any issues of property, finances, spousal support, access to the children, parenting time, decisions on behalf of the kids, as well as how to manage bills, debts, and anything else that may be important to the couple.
Some examples of items included in most separation agreements are:
- Property division – how the property will be divided, who lives in the marital home, and similar issues are all included. If one spouse is buying out the other spouse, how are the payments to be made, or what is the payment plan? If the property is being sold, which spouse manages the process, and how is information communicated to the other spouse? If one spouse is living in the matrimonial home, are they responsible for bills, upkeep, and taxes?
- Debts – most couples have debts, some of which may be individual debts or those of the couple. Each debt should be listed with specifics on the responsible party for the debt, how they will be divided, and who is making payments.
- Spousal support – in many cases, one spouse has significantly more income than the other, and this often occurs when one spouse has taken on the responsibility of caring for children. Through the separation agreement, spouses can agree on the level of support, how it will be paid, and how long it is to continue. It is also a good idea to indicate under what conditions the spousal support will cease (return to work, marrying, a decrease of income or loss of employment by the spouse paying the support, etc.). More information about the spousal support advisory guidelines can be found online.
- Parenting plan – often, issues around the children are the most emotional in the separation. Discussing in advance what will happen if a parent wants to move a long distance away, how to manage issues with kids’ religious upbringing, cultural issues, and issues around involving new partners in the children’s lives are all essential to include. Talking with each other about time spent with the kids by each parent, which parent has custody, how will holidays be handled, what school the kids attend, and other similar types of considerations. The more detailed the parenting plan the better prepared the couple is to handle all aspects of co-parenting during the separation.
- Child Support and Care – in general, child support in a separation agreement in Ontario is based on the Child Support Guidelines. However, in the separation agreement, parents may agree to pay additional amounts for special activities, daycare, for the child attends a particular school or training, or other types of unique issues. As with spousal support, information on what the money is to be used for, how much is paid, the payment schedule, and when the payments will end should all be included.
- Resolving Future Disputes – typically, a separation agreement includes information on how the parties agree to resolve any future conflicts. This is typically through mediation or arbitration, and in many cases, a professional is listed in the original separation agreement, or this can create yet another conflict in the future.
- Investments and pensions – all details about investments and pension should be itemized and agreed upon in the separation agreement.
In general, if the division of these issues is not equitable, it is important to detail why in the agreement. For example, if a spouse waives support in lieu of full ownership of the matrimonial property, this should be written into the agreement to avoid any future complications.
Can a Separation Agreement in Ontario be Set Aside?
Under specific situations, the separation agreement in Ontario can be set aside by the court, which means the court is not upholding the agreement as binding. These types of conditions can be largely avoided by having a lawyer review your agreement and include the correct legal language and provisions.
The most common problems with separation agreement drawn up without a lawyer include one party saying they did not understand what they were signing, lack of honesty in disclosing information about assets and property (hiding assets from the spouse), or in a failure to follow the Government of Canada’s child support guidelines.
How much does a Separation Agreement in Ontario cost?
Determining the legal fee for a separation agreement is largely dependent on each unique situation. At Divorce Go, we have built a process that allows for a flat-rate fee quote before you choose to retain our service for drafting. The first step is to book a free consultation and speak with one of our friendly staff. At our meeting, after reviewing your situation and the requirements of your Agreement, we will provide you with a flat-fee quote and a questionnaire to be completed for the Agreement. Once the questionnaire is completed and returned to us, we will get to work on the first draft and get it to you within 7 days for your review and suggestions. More information about pricing can be found on our pricing page.