ONTARIO SEPARATION AGREEMENTS

It is always better if the two of you can agree on how to settle the issues between you. Court proceedings can be very expensive and take a long time. Signing a separation agreement is a very important step. Your decisions now can affect you and your children for the rest of your lives. A properly executed separation agreement can be treated by the court like a court order. Note: The court does not require that you have a separation agreement.

The law leaves the decision about having a separation agreement to you. You may have a hard time proving that you and your spouse had promised to settle things a certain way if you do not have a written, signed and witnessed separation agreement. This could be a problem if your spouse stops respecting your informal agreement.

There are very important issues that you should (but are not required to) set out in a written, signed and witnessed agreement, including:

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 Date of separation

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 Issues related to your children:
> Who will they live with?
> Who will have ‘custody’ (major decision making powers)
> If the children live with one parent, what are the other parent’s rights to access?
> How much child support will be paid?
> When will child support end?

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 Issues related to spousal support:
Will one spouse pay support to the other?
When will support end?
If there is no support, is it waived forever?

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 Issues related to your property:
Whether or not you have already divided your property
> If there is property to divide, who gets what?
> If you have a house:
> Will you sell it?
> Who is responsible for it until it is sold?
> How will the proceeds be divided?
> What happens if you can not agree on the terms of purchase?

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 Issues related to your debts:
> Do you have outstanding debts (credit cards, loans, mortgage)?
> Who will be responsible for which debts?
> What about debts incurred after separation but before divorce?

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 Issues related to pensions, RRSPs, RESPs, etc:
> Will you split your pensions and/or RRSPs?
> If you have RESPs, who will be entitled to permitted transfers?

Even if you have been separated for many years, have no minor children and have already divided you assets, a separation agreement can set these facts out so that one spouse may not claim otherwise in the future.

DRAFTING YOUR SEPARATION AGREEMENT

Ideally, you should have independent lawyers draft your separation agreement. If both spouses work with one lawyer to draft the separation agreement, once it is finalized, one of you should take the separation agreement to a separate lawyer for independent legal advice. Note, however, that independent legal advice is not required in Ontario to make your agreement valid. If there are issues that you are having a hard time coming to an agreement about, you should consider using a mediator. A mediator can help you come to an agreement on all of the issues and even draft the agreement for you. He or she would then direct each of you to get independent legal advice prior to executing the agreement*. Another alternative is to have a service like ezDivorce personalize a separation agreement for you that you can then take to your own lawyers for independent legal advice (although this is not required in Ontario). Of course, you can always decide to draft your own agreement. In Ontario, your agreement must be in writing and signed by both you and your spouse along with a witness* to be considered a ‘Domestic Agreement’ under the Family Law Act. *There is no requirement regarding who can act as the witness: It can be a friend or family member – it does not have to be a lawyer or notary although some people are more comfortable with those types of witnesses. 

*In some jurisdictions (not Ontario), independent legal advice is required to make a domestic contract legally binding. In the Superior Court of Justice case of Covriga v. Covriga, a case in which neither party sought legal advice, independent or otherwise, prior to executing an ‘ezDivorce‘ drafted separation agreement, the Court upheld the validity of the agreement. This is of course no guarantee that a court would not invalidate an ‘ezDivorce‘ drafted separation agreement in the future. 

ezDivorce can draft a basic* personalized separation agreement for you. The cost is $200 with the purchase of a divorce package. Otherwise, the fee is $300, which includes a $100 non-refundable, non-transferable credit towards our divorce fee should you decide to proceed with that in within one year.

*We only draft basic separation agreements which cover spousal support, child custody/access/support, simple division of property, and the immediate sale/transfer of a matrimonial home (or waivers to any of these issues). We do not draft agreements where there will be a division of pensions, where businesses are involved, or where the division of assets is overly complicated. We reserve the right to decline to draft your agreement if we determine that your requirements exceed the narrow scope of our ultra-low cost service. If you submit the agreement intake form and we decline to draft your agreement, you will not be charged a fee. 

The separation agreement comes with a significant disclaimer. Please click here to read the complete terms.

SPECIAL OFFER: The $200 fee is waived for a basic, ‘clean’ agreement (no support, no minor children nor division of assets) when pay for our regular divorce service.