Separation Agreement Ontario

Separation Agreement

A Separation Agreement could be a solution to most problems. We understand that separation can be a time when a person is experiencing an emotional roller coaster.  

A calm and objective approach to the situation would help couples manage legal costs and prevent further aggravated problems. We believe that you do not need to go to court to resolve family law issues. A Separation Agreement is a binding contract between married or common-law couples to record all family law issues arising from a separation, such as support, custody and property division.

If both parties agree, a professionally drafted Separation Agreement in Ontario by a Separation Lawyer could save couples unnecessary legal costs of court litigation. 

In comparison, Separation Agreement Ontario Templates are cheap but are extremely risky and could be set aside by the courts of law. A person must exercise extreme caution when reviewing a separation agreement template. 

Many horror stories do exist about the entire process is highly stressful, prolonged with massive legal costs. 

We believe the process of legal separation and divorce does not have to be adversarial and expensive, as long as you retain a separation agreement lawyer and know about the essential tipis discussed in this article. 

You can download a free Separation Agreement Checklist and a Separation Agreement Template created by the Law Society of Ontario. 

Important Note & Caution:

 The Content on this page is for information only. A sample separation agreement or a template must not be used without the help of a Lawyer.

Do I need a Separation Agreement

Do You need a Separation Agreement?

Do I need a separation agreement in Ontario?

You do not need a separation agreement to be legally separated or to Divorce in Ontario and there is no law in Canada compelling couples to enter into a separation agreement.

A separation agreement offers both parties a degree of control over what will be received by each party when 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. 

However, if you have children, your divorce may not proceed without the issue of child support is resolved. 

The Divorce Judge needs to know if there are adequate arrangements for child support before granting Divorce Order. 

Therefore, if you have children, then it is beneficial to have a separation agreement before you file for divorce in Ontario.

Do you need a Separation Agreement for the sale of a matrimonial home?

You do not need an Ontario separation agreement to sell a matrimonial home, but it is highly recommended. 

It is common for your real estate lawyer to require a formal separation agreement to include a specific clause about property division, transfer of a share, the release of interest, or the division of sale proceeds from the marital home.

 If you do not have a separation agreement or a court order, then it is likely that all sale proceeds will be held in Trust with your Real Estate Lawyer. 

Do you need a Separation Agreement required for the title transfer of a matrimonial home?

You do not need an Ontario separation agreement for the title transfer of the matrimonial home, but it is highly recommended. 

In most cases, a real estate lawyer would require a separation agreement in Ontario for the matrimonial home title transfer. At the time of title transfer, your real estate lawyer would need to know how the sale proceeds are to be divided; therefore, it is important to have a separation agreement in place. 

Do you need a Separation Agreement required for a new mortgage?

Yes, you need a separation agreement in Ontario for a new mortgage. 

Almost all Canadian Banks require a separation agreement before they approve you for a mortgage. Your mortage application should take into account if you have to make any support payments as per your separation agreement or not. Such support payments are considered as part of your total debt when applying for a mortgage. 

Tip .1
Difference Between Separation & Divorce.

It is fundamentally important to know the difference between separation and divorce. When a couple, married or common-law decide to live apart, they are considered separated. Whereas your marriage cannot automatically end upon separation, you need a Divorce Order to end your marriage officially.

Separated but living under the same roof

Separation does not necessitate one spouse moving out and living in a different property. It is possible to live “separate and apart” while remaining under the same roof. It is legally acceptable to be separated and still live in the same house in Canada. 

To identify whether couples 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 begin to live separate and apart, irrespective of living in the same house.

On the other hand, Divorce in an Ontario means to end a marriage by way of a Court Order only after one year of separation. You can commence Divorce proceedings before completing one year of separation, but the Divorce Order will be granted until one year has passed.

Tip .2
Date of Separation


In the eyes of the law, your date of separation is crucial, and it goes to the root of the matter.

All parties, including Family & Divorce Lawyers and Judges, would need to know the accurate separation date for legal reasons such as divorce cannot be granted until parties live separately and apart for one year or more.

Secondly, the date of separation is essential to calculate the support commencement date. If you have children, then child support cannot commence before the date of separation. If you are separated but living under the same roof, child support will be calculated from the date of separation but on a shared custody basis.


Thirdly, if your spouse claims support, then spousal support obligation can only begin from the date of separation and not before.

Fourthly, the division of property, assets and liabilities would need a date of separation.

Therefore, it is essential to note your date of separation.

What To Include in a Separation Agreement in Ontario

Tip .3
What to include in a Separation Agreement?

A good Separation Agreement must include terms on Child Custody, Child Support, Spousal Support, Division of Property, Pension, Dispute Resolution & Divorce, if applicable.

Before we discuss these issues in detail, it is essential to know that section 54 of the Family Law Act deals with the Separation Agreement in Ontario, and it was amended in 2020, vide Moving Ontario Family Law Forward Act, 2020  

A good Separation Agreement must include terms on Child Custody, Child Support, Spousal Support, Division of Property & Divorce, if applicable. Before we discuss these issues in detail, it is essential to know that section 54 of the Family Law Act deals with the Separation Agreement in Ontario, and it was amended in 2020, vide Moving Ontario Family Law Forward Act, 2020 

Here is the amended section 54 of the Family Law Act. 

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 decision-making responsibility or parenting time with respect to their children; and

(e) any other matter in the settlement of their affairs.” 

Division of Property.

If you have acquired any property or accrued any liability/debt during the relationship, your separation agreement must determine how all the property is divided between couples. 

You and your partner would need to calculate net family property value. The amount for net family property is arrived at after adding all assets’ value less any liabilities. 

The agreement will then discuss how the net family property is equalized, for example, a lump-sum amount or the home’s sale. A separation agreement lawyer in Ontario can help you with your net family property calculations. 

The process of calculating net family property could become complicated if it is inter-connected with a child or spousal support. 

Possession of Matrimonial Home. 

The agreement should discuss who will keep possession of the matrimonial home. In some cases, keeping the house is not financially possible for both parties, resulting in the home’s sale.

Therefore, the separation agreement should provide a mechanism on how to deal with the marital home. 

Child Custody / Right to Decision making and parenting time.  

In 2020, the “the right to custody of and access to their children” was repleaded and replaced a new term “right to decision making and parenting time”

The separation agreement must clearly define who will be responsible for primary care and control of children and make decisions for them.

The agreement should give you a guideline about the decision-making process and, in the event of a conflict, who will have final decision-making authority. 

The agreement must spell out parenting time and parenting plan details during the entire year and following years.

Children need certainty in their lives; therefore, the agreement should discuss how much time a child will spend with each parent, including the holidays such as summer and winter vacation. 

If one parent wishes to relocate, then the agreement should address how this will affect decision-making and parenting time. 

An experienced separation agreement lawyer can help you with a detailed parenting plan based on your specific needs and requirements. 

Right to direct education and moral training of their children. The right to direct education and moral training of children is an essential element of the separation agreement. 

The agreement should provide guidelines for who will be responsible for choosing children’s education method; for example, children should go to french or English schooling, or children need to attend piano lessons including child’s religious and moral training. 

The court would uphold the separation agreement if children’s best interests were a paramount consideration. 

Child Support. 

The separation agreement will discuss if any child support is to be paid and to whom. The child support table was updated in 2017 by the Government of Canada.

Child support is calculated based on the number of children, the province and payor income.

It would be prudent to write a clause when the child support amount should terminate since child support can not automatically terminate when the child becomes an adult. 

Special & Extraordinary Expenses for the Child. If there are special or extraordinary expenses for the child, such as extracurricular activities, private schooling, special needs etc.

Your separation agreement should cover who will pay for such expenses, what amount or what percentage, and how the receipts will be exchanged for such expenses.

Ontario Separation Agreement lawyers are experienced in such matters; therefore, it is wise to contact them for professionally drafting a separation agreement.

Spousal Support:

It is important to mention if any spousal support is payable, how much and for how long from one party to another.

The agreement should guide what circumstances support can be terminated, such as the retirement of the payor or the recipient’s remarriage. 

In some situations, a spouse may waive his or her right to claim support.

If spousal support is waived, then an appropriate clause should explain why support is waived, for example, an additional share in the property or marital home division.

Medical and Dental Benefits:

At times, couples wish to add relevant clauses to extend their employer’s medical and dental benefit plans for their children. 

A specified procedure would help parties to recover covered and uncovered medical and dental expenses. 

Life Insurance:

Like medical benefits, a party may wish to keep the other party or the children as beneficiaries on their life insurance even after separation. 

Pensions, RRSP & Investment Accounts:

A pension or RRSP is an asset, and it will be calculated as part of the net family property. Therefore, if either party has a Pension or RRSP, you should calculate the value as part of your net family property.  

Dispute Resolution:

A well-drafted agreement always has a mechanism for dispute resolution. In the event of a dispute in the future, the parties should have a specific procedure to resolve conflicts, such as naming a mediator or a general reference to appointing an arbitrator to settle a dispute.  

Divorce:

A good separation agreement should also address the issue of Divorce for married couples.

A clause in the agreement to allow either party to file an uncontested divorce a simple or a Joint Divorce would prevent unnecessary complications in the future. 

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,  varied or changed by the court.

The court will review the separation agreement to ensure that both parties have had independent 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, a 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 detailed information to vary a separation agreement or a child custody order on the grounds of the best interest of a child.

Tip .5
Enforce Your Separation Agreement

A separation agreement is a contract, therefore it can be enforced under the principles of Contract Law and under Family Law Act & Rules. 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 – Click to download Form 26B.

This means that the court can enforce a separation agreement in Ontario. Child or spousal support payments agreed upon can be enforced via  Family Responsibility Office (FRO).

FRO is a government agency responsible to collect support for the payor, keeps a record of all payments and makes payments to the recipient of support.

FRO has the legal authority to collect support payments from the payor’s bank account directly or to suspend the driver’s license payor or put the payor in Jail for default of his/her payments.

Tip .6
Separation Agreement in Ontario Cost

How Much a Separation Agreement Costs in Ontario

The cost of a Separation Agreement in Ontario varies depending on whether you are using a Lawyer or you are working based on a Separation Agreement Template Online.

Law Society of Ontario Separation Agreement Templates are free to download whereas some separation agreement templates online would cost between $30 to $50.  On the other hand, a Lawyer Fee for drafting a Separation Agreement would be $499.00 to $2,000.00 + Taxes depending on the complexities of the Agreement. Some lawyers charge an hourly rate between $180 to $450 for drafting and negotiating a separation agreement. 

We have a Transparent Legal Fee structure,  our Separation Agreement Lawyer Charges Flat Legal Fees and provides Free Consultation. 

Separation Agreement Cost

Simple Separation Agreement

$499.00 + HST

Flat Legal Fees

All Legal Fees are subject to Taxes

  • Separation Agreement Consultation INCLUDED.
  • Simple Equal Division of Property INCLUDED*.
  • Drafting Simple Separation Agreement Template Only INCLUDED.
  • Independent Legal Advice Certificate NOT INCLUDED.
  • Child Support NOT INCLUDED.
  • Child Custody NOT INCLUDED.
  • Spousal Support NOT INCLUDED.
  • Negotiation of Separation Terms NOT INCLUDED.

Ideal for Clients who are unable to visit our office in person, such as clients based out of province or at distant locations. 

*One Matrimonial Home and mere equal division of property. 

Complete Package

$1260.00 +HST

Flat Legal Fees

All Legal Fees are subject to Taxes

  • Separation Agreement Consultation INCLUDED.
  • Drafting All Separation Agreement Paperwork INCLUDED.
  • Division of Property INCLUDED.
  • Independent Legal Advice Certificate INCLUDED.
  • Child Support INCLUDED.
  • Child Custody INCLUDED.
  • Spousal Support INCLUDED.
  • Negotiation of Separation Terms NOT INCLUDED.

Complex Agreement

$1,800.00 + HST

Flat Legal Fees

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

  • Separation Agreement Consultation INCLUDED.
  • Drafting All Separation Agreement Paperwork INCLUDED.
  • Division of Property INCLUDED.
  • Independent Legal Advice Certificate NOT INCLUDED.
  • Child Support NOT INCLUDED.
  • Child Custody NOT INCLUDED.
  • Spousal Support NOT INCLUDED.
  • Negotiation of Separation Terms INCLUDED.

Separation Agreement Checklist

A SEPARATION AGREEMENT ONTARIO TEMPLATE

The following is merely a Separation Agreement Sample for general information purposes only!

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

FAQ

What to include in a Separation Agreement?
A good Separation Agreement must include terms on Child Custody, Child Support, Spousal Support, Division of Property, Pension, Dispute Resolution & Divorce, if applicable.

Why should I create a Separation Agreement?

People create a separation agreement to avoid extensive litigation costs. If you can resolve major terms of separation by way of an agreement you can save thousands of dollars in legal costs, which could be better spent on the family rather than in courtrooms.

Can you be separated while living under the same roof?

You can be considered separated while living on the same property. For example, if you move to a separate bedroom or part of the house, such as a basement, then such a move within the home is considered as a formal separation. You can record your separation within the house by exchanging an email with your spouse or partner that the date you moved to another room is to be treated as a separation date.

Do you need a lawyer for a Separation Agreement in Ontario?

You do not need a lawyer for a Separation Agreement in Ontario. A separation agreement is valid as long as it is signed and witnessed by the parties. However, it is highly recommended to have a lawyer because your spouse or partner could trick you into signing an agreement that is illegal and not within your best interest or your children.

Do you need a separation agreement before divorce in Ontario?

You do not need a separation agreement before divorce in Ontario. However, if you have children, then your divorce may not proceed without an adequate arrangement for child support, which ideally should be part of a separation agreement. Therefore, if you have children, then it is beneficial to have a separation agreement before you file for divorce in Ontario.

How much does a separation agreement cost in Ontario?

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.

Does a husband have to support his wife during separation?

A husband is expected to support his wife during separation if she is entitled to spousal support in accordance with spousal support guidelines. The basic criteria are if the wife is financially dependant on marriage, then the husband has to support his wife during separation. For example, the wife was not working, but looking after the children during the course of the marriage or her income was significantly less than the husband’s income.

Who gets to stay in the house during separation?

In the eyes of the law, both spouses or partners get to stay in the house during separation, since the house is their matrimonial home. It does not matter if the matrimonial home is rented or owned. Therefore many separating parties decide to stay in the same house until the separation agreement is finalized.

Can a Separation Agreement be terminated?

A court of law can terminate a 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 a 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 are unfair in the eyes of the 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.

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)
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