Cynthia Squire, Family Lawyer
In the realm of family law in Ontario, navigating the complexities of your separation can be emotionally challenging. However, with a well-crafted separation agreement that addresses your specific circumstances, separating couples have the opportunity to define their post-separation arrangements in a clear and legally binding manner. In this blog post, we will explore what separation agreements are, the reasons for their creation, the key components that they address, and their significance in the context of Ontario family law.
What is a Separation Agreement?
A separation agreement is a legal contract that outlines the terms and conditions agreed upon by a separating couple that addresses all aspects of their separation. Unlike a marriage contract entered into before or during the marriage, a separation agreement is negotiated and signed after the decision to separate has been made. A separation agreement serves as a roadmap for how the separating couple will navigate issues such as parenting arrangements for their children (sometimes called a “Parenting Plan”), child support, spousal support, property division and any other issues that may arise after separation, such as when support will be reviewed.
Key Components of a Separation Agreement
- A Parenting Plan
For separating couples with children, a separation agreement must include a parenting plan and how they will coparent their children after separation. A parenting plan will create stability for your children and how conflicts or disagreements will be addressed in the future (and there will be some disagreements). A parenting plan should include details of how important decisions will be made for the children and a parenting time schedule or when each parent will have contact with the child(ren).
A parenting plan should also include financial arrangements for the children, such as child support and how their expenses will be paid. The Child Support Guidelines provide the amount of child support that has to be paid as well as a roadmap for how expenses are to be paid. Child support is not optional, and all parents are expected to contribute towards the financial needs of their child(ren).
- Spousal Support
A separation agreement can outline the terms of spousal support, including the amount and duration, as well as any conditions that may lead to a change in support obligations. This will help to provide financial predictability for both spouses.
- Property Division
A separation agreement should also determine how the assets and debts, that were acquired during your marriage or cohabitation will be divided at the the end of your relationship. Property division is different in Ontario for couples who were married and those who were not married (cohabitating or “common-law”).
Significance in Ontario Family Law
Separation agreements play a crucial role in that they offer separating couples the opportunity to tailor their post-separation arrangements to their unique circumstances and they avoid litigating the terms of a separation (attending court). Courts generally respect the autonomy of separating couples and uphold the terms of a separation agreement unless there are grounds to set it aside, such as fraud, duress, or unconscionability. Having a clear and comprehensive separation agreement can reduce conflicts and provide a framework for separating couples to move forward.
Considerations for Creating a Separation Agreement
The court looks to the following when determining whether to set aside a separation agreement for the reasons mentioned above, and seeking the advice of a lawyer is crucial to avoid the pitfalls that often arise from using a “Separation Kit” at your local stationary store.
- Full Financial Disclosure
Both parties must provide full and frank disclosure of their financial circumstances to ensure that the agreement is based on accurate information. Required financial disclosure may depend on specific financial circumstances and lawyers are well versed in what financial documents are required to ensure a separation agreement is not set aside.
- Independent Legal Advice
Each spouse should have independent legal advice before signing any separation agreement. This ensures that both parties fully understand the terms, consequences and implications of the separation agreement being signed. Obtaining Independent Legal Advice will also ensure:
The agreement must be entered into voluntarily, without coercion or duress by either spouse. Both parties must have the opportunity to negotiate and understand the terms of the agreement.
The terms of the separation agreement must be fair and reasonable for both spouses. If the agreement significantly favours one spouse to the detriment of the other spouse, there is a higher risk that the separation agreement will be set aside by the court.
- Legal Formalities
The agreement must meet certain legal formalities to be enforceable. This includes being in writing, signed and witnessed by both parties, have specific language to enforce support moving forward (if required), amongst other releases for future protection.
Navigating your post-separation world involves thoughtful consideration of the unique circumstances surrounding the end of your marriage or cohabitation. A well-crafted separation agreement or parenting plan provides clarity and direction should there be future disagreements. By understanding the key components and seeking legal guidance, separating couples can create arrangements that not only reflect their individual needs, but also contribute to a smoother transition into living separate lives.
If you would like more information or assistance with this type of issue, please reach out to Cynthia Squire or contact Lister Beaupré LLP directly by phone at 613-234-2500 or by email at firstname.lastname@example.org.