6 Tips You Must Know About a Separation Agreement

Separation can be a time when a person is experiencing an emotional roller coaster. Calm and objective approach to the situation would help couples manage costly court battles and prevent further aggravated situations. A Separation Agreement in Ontario, if drafted professionally by a Family Lawyer could save couples unnecessary legal costs of litigation. Whereas Separation Agreement Ontario Templates are extreemly risky and could be set-aside by the Courts of Law.

The process of Legal Separation and Divorce in Ontario does not have to be adversarial and expensive.

Many horror stories do exist about the entire process being highly stressful, prolonged with massive legal costs, but it can be avoided, as long as you know the Tips about a Separation Agreement in Ontario. We will also provide a Separation Agreement Checklist as well as Separation Agreement Template by the Law Society of Ontario. Important Note: The Content on this page is for information only and the Sample Separation Agreement should not be used without the help of a Lawyer.

Tip 1
List Key issues to be Covered in a Separation Agreement in Ontario

It is important to note that there is no Law in Canada compelling couples to enter into a separation agreement. However, it is highly recommended to have a Separation Agreement, if any one of the following issues are applicable to you.

  1. Child Custody, Primary Care & Control & Decision Making;
  2. Access and Visitation Rights, including holidays;
  3. Child Support;
  4. Spousal Support;
  5. Division of Property.

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 spell 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.

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.

Most courts will recognize the terms of a separation agreement provided that the terms of the agreement are fair to both parties and reasonable. However, if you have relied upon a Separation Agreement Ontario Templates then it is possible that the Agreement was not drafted in accordance with the Family Law Rules. Therefore, it is highly recommended to get a Family Lawyer involved.

Tip 2
Date of Separation

In the eyes of Law date of separation goes to the root of matter. All parties, including Family Lawyers and Judges would need to know accurate date of Separation. If you were to apply for Divorce you must mention the date of Separation since Divorce cannot be granted until parties have been living separate and apart for one year or more.

Similarly, Child Support & Spousal Support obligation can only commence from the date of Separation and not before. Division of Property and Liabilities would be calculated as of the Date of Separation. As a general rule of Law any property acquired & any liability incurred during the course of marriage until the date of separation shall be divided equally.

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Tip 3
What is the Difference between Separation & Divorce in Ontario

What is Separation?

When married or common law couples decided to end their relationship and begin living apart from each other, they are considered as separated in the eyes of Law.

What is Separation Under the Same Roof?

Separation is defined as the intention of a spouse or Common Law Partner 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” a court will consider the following 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?

Therefore, separation in Ontario means when couples end their relationship and being to live separate and apart, albeit under one roof.

On the other hand Divorce in Ontario means to end a marriage by way of a Court Order only after one year of Separation. You can commence Divorce proceedings before completion of one year of Separation but the Divorce Order will not be granted until one year has passed.

A Separation Agreement without a Lawyer

Tip 4
Independent Legal Advice for a Separation Agreement in Ontario

Certificate of Independent Legal Advice attached to a Separation Agreement is critical when executing a Separation Agreement.A separation agreement can be challenged in court and it can be set-aside by the court or varied or changed by the court.The court will review the separation agreement to ensure that both parties have had legal advice and received full and accurate financial information from each side as well as the legal requirements of contract law are satisfied.In other words, the Separation agreement is also subject to the principles of contract law and therefore if one of the following elements were present then the Separation agreement can be set- aside or varied by the court.
      • Duress: Where one spouse pressures the other to sign the contract.
      • Misrepresentation: Where one spouse does not provide full or accurate information such as financial information.
      • Unconscionability: Where the terms of the agreement are unjust and unfair in the eyes of the court.
      • Undue influence: Where one of the spouses influenced the other spouse to sign the agreement on account of their better position such as an offer to sign for sole custody in exchange for deleting all arrears of child support or transfer of property.

The courts will also be willing to vary the agreement if in the event the courts find that it is in the best interest of the child to have the terms of the agreement varied. Please consult your lawyer for more detail information to vary a separation agreement or a child custody order on the grounds of the best interest of a child.

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Role of A Separation Agreement Lawyer

What a Separation Agreement Lawyer would do?

Shaikh Law Firm has offices in Downtown Toronto, Mississauga, Brampton, Oakville, and Hamilton. We also provide Separation Agreement services across GTA, please contact our office for further details and request a free consultation.  A Separation Agreement Lawyer would do the following tasks.

  1. Review the Terms and Conditions of the Separation Agreement to ensure it is legally binding in Ontario.
  2. Obtain and review Financial Disclosure as well as prepare a sworn Financial Statement for his/her client.
  3. Negotiate the terms and Conditions of the Separation Agreement.
  4. Formalize the Separation Agreement
  5. File A Separation Agreement with Court if necessary for a Divorce Order

Tip 5
Enforcing Your Separation Agreement in Ontario

Separation Agreement is a contract, therefore it can be enforced under the principles of Contract Law. In Ontario either party to the Agreement can file their Separation Agreement in court as long as it has not been changed to assist in enforcement. The party filing the Separation Agreement in court would need to fill out Ontario Family Court Forms – Form 26B.

This means that the court can enforce the Child or Spousal Support Payments agreed upon though Family Responsibility Office (FRO). FRO is a government agency responsible to collect support for the payor, keeps record of all payments and makes payments to the recipient of support.

FRO has the legal authority to collection support payments from the payor’s bank account directly or to suspend the Driver’s License of the Payor or to put the payor in Jail for default of his/her payments.

Tip 6
Separation Agreement in Ontario Cost

Simple Separation Agreement

$499.00

Flat Legal Fees

All Legal Fees are subject to Taxes.

Complete Package

$1260.00

Flat Legal Fees

All Legal Fees are subject to Taxes.

Complex Agreement

$1,800.00

Flat Legal Fees

All Legal Fees are subject to Taxes and are based on a minimum of 10 hours of work.

The cost of Separation Agreement in Ontario varies depending on whether you are using a Lawyer or you are working based on a Separation Agreement Template Online. Sometimes Separation Agreement Templates are Free. Some basic Separation Agreement Template online would cost between $30 to $50 whereas a Lawyer Legal Fees for a Separation Agreement would be $499.00 to $2,000.00 + Taxes depending on the complexities of the Agreement.

We have a Transparent Legal Fees structure,  our Separation Agreement Lawyer Charges Flat Legal Fees and provides Free Consultation. To Learn More Click Here 

Separation Agreement Checklist

Separation Agreement Checklist Ontario

Child Custody

  • Who will have primary Care & Residence
  • Who will have access & Visitation
  • Special Holiday
  • Birthdays
  • Supervision (if required, how and through whom?)
  • Travel out of Jurisdiction
  • Passports

Child Support

  • Amount
  • Financial Disclosure
  • Income of Paying Parent
  • Enforcement Clause (FRO)
  • Special & Extra-ordinary Expenses
  • University and Higher Education Expenses

Spousal Support

  • Waiver Clause (if applicable)
  • Amount
  • Length of time or Lump Sum
  • Financial Disclosure
  • Income of both parties
  • Enforcement Clause (FRO)

Division of Property

  • List of All Assets acquired during the relationship
  • List of All debit incurred during the relationship
  • Financial Disclosure
  • Equal Split or not
  • Matrimonial Home Sale or transfer
  • Equalization Payment Method

A SEPARATION AGREEMENT ONTARIO TEMPLATE

Separation Agreement Template

THIS AGREEMENT made the                                            day of                                                               , 20               

BETWEEN:

                                                                                                   ,

of the City of                                                            , in the

Province/Territory of                                                        

(referred to in this Agreement as “the WIFE”)

AND:

                                                                                                   ,

of the City of                                                            , in the

Province/Territory of                                                        

(referred to in this Agreement as “the HUSBAND”)

BACKGROUND:

  1. The parties were married to each other on the                                          day of    ,              .

at        ,

  1. The parties have the following children as follows:

Name of Child                                 Age                     Date of Birth

                                                                                                                 

  1. The parties agree to live separate and apart from each other and wish to be bound by the following terms of Separation. Or

The Parties have been Living Separate and apart from each other since _______________ and nowwish to be bound by the following terms of Separation.

  1. Both Parties have exchanged Financial Disclosure which includes the assets and liabilities of the Husband and the Wife.

For further details please contact our office

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Comments 

Yes, A Separation Agreement is Legally Binding.

A Separation Agreement is legally Binding in Ontario. In fact 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 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 spouses gives up on her lawful right for spousal support without any compensation whatsoever causing her to face hardship.

Separation Agreement List of Cases

This follow list of cases Dealing with Separation Agreement are frequently relied upon in Ontario and this is 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 duty to fairly value the asset)