Ontario Separation Agreement
How to create a separation agreement that gets signed
The 3 Pillars of a separation agreement that will get signed
A written Separation Agreement in Canada may include:
No, because there’s no such thing as filing for legal separation in Ontario. You are deemed legally separated when you and your spouse start living separate lives. And you don’t need to be living in separate properties to be classed as separated. You’ll still hear the term ‘legal separation’ used a lot, but this is normally to describe the contract that’s created between two spouses who are planning to split up.
There’s no time limit. A divorce doesn’t automatically kick-in just because you and your spouse have been living separate lives for, say, 5 years. You can remain separated for as long as you like without needing to get divorced. The only reason one or both of you might seek a divorce is if you want to marry someone else.
In Ontario, if you want to file for divorce, you need to complete a full, one year separation period, unless you file your divorce on the grounds of cruelty or adultery. Of course, you can begin applying to get divorced on the day you and your partner separate, but no Canadian court will grant you a divorce until a full year has passed. The three grounds that are acceptable for getting divorced in Ontario are outlined in the Divorce Act, which we explain on our Divorce page.
Any reconciliation won’t re-start the one-year‘ countdown clock’ until you are back together for a total of 90 days. The aim of the one year period is to give couples the opportunity to work on their marriage and give their relationship another try, without delaying a divorce if they don’t succeed. Should you stay together for more than 90 days, then your one year period will start over again.
You don’t have to be living in different homes to be classified as being separated. You can be classed as ‘living separately and apart’. It’s all about whether or not you are living separate lives. Yes, different addresses will prove it, certainly as far as the courts are concerned. But in some separations, living at different locations isn’t financially viable, or indeed possible due to childcare needs, so you can live in the same house and still be classed as being separated. It falls on the couple to prove to the courts that they are living separate lives even though they are inhabiting the same space. It’s a complex process that usually requires legal expertise to prove. Usually, the following factors will be taken into account:
- Lack of communication between spouses
- Taking separate meals
- Not doing things together
- No sexual relations
- Division of assets and finances
- Division of household responsibilities
A separation agreement (also called a Marital Separation Agreement) is a legally binding contract that two people who are married create to formalize the terms of their separation. As such, it is governed by the law of contract, so failure by either party to honour its terms can result in claims of breach of contract.
The separation agreement lays out each partner’s rights regarding various issues, most notably: property division, child access and custody rights, child and spousal support, and other financial matters. Although a separation agreement isn’t required by law to be in writing, it’s recommended to document it in writing as any separation agreements made verbally are hard to prove in court. Separation agreements will be respected by the courts as long as they are deemed fair, reasonable and properly executed.
Any couples planning to separate will benefit from having a separation agreement as it will address key issues associated with the separation, particularly child custody issues, and financial ones, without having to go to court, thereby avoiding costly litigation. Such an agreement gives you control over who gets what, and often the courts will incorporate the terms of your separation agreement into the divorce judgement.
There are no laws that state that separation agreements must be drafted by legal representatives, although it’s always recommended that this happens. You may wish to draft your own as a couple, but this will require you to check all provincial requirements so that the agreement you produce is legally binding and enforceable. If the way you write your separation agreement is unclear, things can get messy in court if one partner decides to cease respecting the terms of your agreement.
Separation agreements are serious documents for use in court if necessary, so any terms that aren’t clear or are blatantly unreasonable will not be accepted. However, judges won’t change the terms of property division or spousal support that are proposed in your separation agreement, even if they don’t agree with them. So you need to have total confidence in your separation agreement before you sign it. You may want to checkout my Step-by-Step Guide to Preparing your own separation agreement HERE
Yes, if the courts think your separation agreement is not in the best interests of your children, if one spouse hasn’t disclosed certain assets and liabilities, or if the terms of the separation are unfair, then the separation agreement will not be legally enforceable.
If your spouse refuses to sign a separation agreement, you should consider entering divorce mediation or secure the services of separate lawyers in order to reach a separation agreement that works for you both.
You will need the following information:
Full legal name of each spouse
The date of your separation
Any issues relating to your children – who will they live with, how will you decide access rights, who will pay child support and how much, when will child support end, who makes decisions related to the children – is it one of you or both of you?
Spousal support agreement, will any be paid, and if so, how much, when and for how long? Several factors will affect the calculation of this, including how long you’ve been married, the financial situation of each spouse, your age and state of health, past contributions from one spouse to another, and the standard of living before separation.
Property division – a clear list of who gets what is required. By default, each spouse can claim equal possession and ownership rights unless a different arrangement is agreed to in writing.
If you own a house – will it be sold, if so, who is responsible for it before it’s sold, who will live in it until it’s sold, and how will the money made by selling the house be divided up?
If you have debts, who will be responsible for which debt? Both spouses are responsible for shared debts. But how will you handle debts that occurred after separation but before you get divorced?
Will you evenly split your pension and retirement plans?
If you have RESPs, who’ll be entitled to permitted transfers?
This is obviously a very important step, as the terms in your separation agreement will affect your future and that of your children. It’s a binding contract that is legally enforceable, so you must honour its terms. Often, it will be used as the basis for your divorce. So be sure you are content with it before you sign it. Ideally get a legal representative to create it, or at least review it before you sign it because everything needs to be carefully considered.
Yes, if you signed a prenuptial agreement before your marriage, this may specify how assets will be divided upon the breakdown of the marriage. Also, if you are not married but have signed a Cohabitation agreement, this could well lay out how assets and debts should be divided if the relationship breaks down.
Separation Agreement Readiness Indicator – Quizz
Are you even ready to put pen to paper? Take my 1 minute checklist quizz to find out.