WHAT IS A SEPARATION AGREEMENT?
A separation agreement is a contract dealing with legal rights of separating spouses or common-law partners covering issues such as division of property & debts, liabilities RRSPs, RESPs, custody & support for children, including visitation rights and schedules as well as support spouses. A Separation Agreement is defined under section 54 of the Family Law Act, R.S.O. 1990,
54 Two persons who cohabited and are living separate and apart may enter into an agreement in which they agree on their respective rights and obligations, including,
(a) ownership in or division of property;
(b) support obligations;(c) the right to direct the education and moral training of their children;
(d) the right to custody of and access to their children; and
(e) any other matter in the settlement of their affairs. R.S.O. 1990, c. F.3, s. 54; 1999, c. 6, s. 25 (24); 2005, c. 5, s. 27 (27).”
Therefore this section also allows not only spouses but also common-law partners who were co-habiting to enter into a separation agreement for the purposes of settlement of their disputes pertaining to Property, Child Support, Spousal Support and Custody Matters. A Separation Agreement is termed as a domestic Contract under section 51 of the Family Law Act, R.S.O. 1990. It was recently held in the case of Wodzynski v. Wodzynski, 2012 ONCA 272 that an agreement entered prior to separation was not a separation agreement under section 54 but was a domestic contract under section 51 and it can still enforceable as a domestic contract. In this case, the parties had not complied with the conditions of the agreement.
Domestic Contracts are defined under section 51 of the Family Law Act, R.S.O. 1990, and it is reproduced hereunder for convenience:
“cohabitation agreement” means an agreement entered into under section 53; (“accord de cohabitation”)
“domestic contract” means a marriage contract, separation agreement, cohabitation agreement, paternity agreement or family arbitration agreement; (“contrat familial”)
“family arbitration” means an arbitration that,
(a) deals with matters that could be dealt with in a marriage contract, separation agreement, cohabitation agreement or paternity agreement under this Part, and
(b) is conducted exclusively in accordance with the law of Ontario or of another Canadian jurisdiction; (“arbitrage familial”)
“family arbitration agreement” and “family arbitration award” have meanings that correspond to the meaning of “family arbitration”; (“convention d’arbitrage familial”, “sentence d’arbitrage familial”)
“marriage contract” means an agreement entered into under section 52; (“contrat de mariage”)
“paternity agreement” means an agreement entered into under section 59; (“accord de paternité”)
“separation agreement” means an agreement entered into under section 54. (“accord de séparation”) R.S.O. 1990, c. F.3, s. 51; 2006, c. 1, s. 5 (6, 7).
Therefore Domestic Contract would cover, marriage contract, separation agreements, prenuptial agreements, and cohabitation agreements.