6 Myths About a

Separation Agreement

You Must Know

The process of obtaining a legal separation is one that evolves over what is usually the course of several months. The actual date of separation plays greats importance for married couples. This date is as the date on which the valuation of any property that needs to be divided between the spouses is created.

Parties are required to have been separated for a period of one full year before they are able to apply for divorce unless certain criteria are met. If the divorce is being applied for on the grounds of cruelty or adultery, then this period of one year does not apply.

Any issues that occur surrounding a separation should be addressed as soon as they are identified. These might be issues on spousal support, child support, or division of assets, issues regarding how the marital home is to be dealt with, or which spouse will be awarded custody of any children. Also under discussion can be how decisions that relate to the children will be made and who will be able to spend time with the children and when; known as an access schedule. In this Article, we will tackle 6 common Myths about Separation Agreements which has caused a lot of confusion among many.

1. No Need to have a Separation Agreement but it is recommended

There is no Law in Canada compelling couples to enter into a separation agreement. it is recommended to have a Separation Agreement but it is not required to file for Divorce.  

When we say it is recommended, we base on opinion on case law and experience in court. We found that Judges as well as the Legislature encourages parties to settle their disputes by way of a Separation Agreement. Since it gives the parties sufficient opportunity to properly negotiate the terms of the agreement.  The Family Law Act, R.S.O. 1990 specifically states that a separation agreement would prevail over the provision so the Law passed by the Parliament.  It is stated under 2(10)of the Family Law Act, R.S.O. 1990 “A domestic contract dealing with a matter that is also dealt with in this Act prevails unless this Act provides otherwise.  R.S.O. 1990”.

In a number of court decisions, Judges have shown their inclination to upload the terms of the Separation Agreement. It would be safe to say that as a General Rule a Separation Agreement is Legally binding in Ontario. In some situations, a Judge can set aside terms of a Legally Bind Separation Agreement if the Judge is satisfied that either;

  1. The Parties to the Separation Agreement did not make a full and frank financial disclosure. One of the parties did not provide ca complete list and value of all asset and liabilities, including complete details of the expenses and support received from the Government, Or
  2. The terms of the Agreement is not in the best interest of the Child, Or;
  3. The terms of the Agreement is plainly unfair in the eyes of Law, such as a situation where one spouse gives up on her lawful right for spousal support without any compensation whatsoever causing her to face hardship.


This following list of cases Dealing with Separation Agreement are frequently relied upon in Ontario and this is a list of cases are supplied to judges hearing family law cases in the Superior Court of Justice.

  1. Rick v. Brandsema2009 SCC 10
  2. Marinangeli v. Marinangeli (2003), 66 O.R. (3d) 40 (C.A.)
  3. Virc v. Blair, 2017 ONCA 394(inherent in the duty to disclose is a duty to fairly value the asset)

One must note that couples living separately may not have to do anything to make their separation legal. The fact couples have been living separately is more than sufficient to establish Separation. However, the terms of separation such as division of property, child custody, and support would remain unclear and undecided unless they decide to enter into a Separation Agreement and ensure that the legal and formal requirements under Section 55 of the Family Law Act, R.S.O. 1990, c. F.3 are satisfied. 

If they do not have a written separation agreement drafted as per Section 55 of the Family Law Act, R.S.O. 1990, c. F.3 they may find that they are still financially liable for other or with respect to the custody of a child a non-custodian parent may come back, pick up the child and walk away or not pay child support as per the law without any repercussions.


A Separation Agreement is simply a binding contract between parties. Under Canadian Law, a Separation Agreement can be executed between common law couples as well as spouses. It is an agreement family can make to set terms and conditions with respect to Custody, Access, child support and spousal support as well as the division of property on an equal or unequal basis.

The key difference between a separation agreement for common law and separation agreement for spouses would be that common law couple would not need to apply for a Divorce Certificate from Courts of Law, their Separation Agreement for Common Law would be a final document.   It is important to have a Separation Agreement because it protects both parties interest in the property, rights pertaining to child custody and access as well as support and clearly a confusion as to the obligations of the parties. A Separation Agreement Lawyer will draft the agreement to protect the parties and will ensure that families are fully informed as to any potential legal risks.

3. We Still Live Together are We Separated? What Constitute a Legal Separation?

Separation is defined as the intention of a spouse to live apart and separate from the other one. This does not actually necessitate one spouse moving out and living in a different property it is possible to live “separate and apart” whilst remaining under the same roof.

In order to identify whether spouses are living “separate and apart” or not a court will look at such factors:

  • Do they share a bedroom?
  • Do they have sexual relations?
  • Do they prepare and eat meals together?
  • Do they attend social events as a couple?
  • Do they share chores?
  • Do they continue to talk to each other about and fit in around one another’s schedules?

The Divorce Act encourages those couples who want to attempt a reconciliation by allowing them to resume cohabitation with the express desire to reconcile. This does not terminate or interrupt the one-year separation period, as long as the period of cohabitation is no longer than 90 days.


A Separation Agreement, which might also be referred to as a Marital Separation Agreement, is an official document that you and your spouse to  come to an agreement about the terms of your living apart as well as the following:

  • Issues relating to any children you have together – child maintenance, child health insurance, visitation and custody rights
  • Spousal maintenance
  • Division of any shared assets, including the marital home
  • What items each spouse is entitled to
  • Which spouse is responsible for which debts

There are two different types of Separation Agreement in Ontario, temporary and permanent. A temporary one is one that is valid for the period until a couple gets a divorce. When this happens, a new separation agreement will need to be put in place. A permanent separation agreement is one that is still valid even in the event that divorce has taken place.

A separation agreement offers both parties a degree of control over what will be received by each party when it is agreed that you will separate. It offers both parties the opportunity to out the decisions in writing so that there are no misunderstandings about what has been decided. When it comes to a divorce, it is likely that a court will take the contents of this separation agreement into consideration. Most courts will recognize the terms of a separation agreement provided that the terms of the agreement are fair to both parties and reasonable. Having a separation agreement can help you to resolve issues as an alternative to going to court which can be costly in terms of litigation fees.


Often spouses who are going through the separation process continue to live together. This is not uncommon. Some of the things that can make it difficult for either party to move out are childcare requirements, housing needs or simple financial realities. Until the issues that can surround a separation have been negotiated, it is not recommended for either spouse to move out.

The status quo is given up by the spouse who moves out, and this can make it much harder for them when it comes to certain claims -in particular, those pertaining to exclusive possession of the marital home or in the case of children, custody.

It is also important to remember that is one spouse is awarded support then this can be retroactively backdated to the date on which the separation took place. In the case of the spouse who has moved out is the one who will be required to pay support, and who has not been paying support during this period of separation then they may be required to pay retroactive support for this period.


When a couple has been separated for a full year, then both spouses, or just the one, is able to apply for a divorce. However, if the marriage has produced children, then the courts will only grant a divorce if they are fully satisfied that in respect of child support reasonable arrangements have been made. This will usually mean that the payor is paying the appropriate amount of child support, the table amount, that is clearly defined in the Child Support Guidelines.

For many couples, staying separated for years is as far as they take things. Often, the only reason that they choose to go through the full formal process or divorcing their spouse is that one of them, or both, are seeking to remarry.

If you have questions about the separation process in Ontario, then contact a lawyer who specializes in separation and divorce who will be able to help you. A separation lawyer in Ontario will be able to make the process much less stressful, and ensure you have all bases covered.

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