What is a Separation Agreement in Ontario?
A legal separation is a status not formally recognized in Ontario law, but commonly used in the context of marital relationships. When two spouses claim to be legally separated, it means they are living apart from each other. A married couple may legally separate in various ways, ranging from not taking specific actions to initiating specific, legally-binding steps. As a practical matter, however, separation is the action of one or both spouses terminating their cohabitation.
In Ontario, a couple that separates can choose to do anything they like and as a result, the options for how they may proceed once they have made the decision to separate are vast. They can continue to live under the same roof, splitting household costs and keeping the household running; they can decide to go their separate ways and remain amicable, or they could simply decide it’s best that they no longer talk .
Instead of looking at separation as a defined period of time, it is more useful to see it as any period during which one party or both parties decide to live independently of the other.
It is essential that as part of the legal separation process, you determine the rights and obligations you and your spouse will have in terms of the following:
If your separation is amicable, you can discuss these issues together and arrive at a fair and workable solution that meets both your needs. If your separation is not amicable, you will both likely want to meet separately with your own Ontario family lawyer to ensure you understand your legal rights and obligations. A legal separation agreement is a binding legal contract outlining your decision about the issues you discussed.
Why is a Separation Agreement Important?
A legal separation agreement is a very important step for people who are separating from one another. In many cases, a legal separation agreement is a lot more important than a divorce. People often believe that if there are divorcing from their spouse, that you do not need a separation agreement. This is not so. A legal separation agreement is specifically designed to address the issues surrounding your individual particular "separation". In most cases, particularly where there are children, there is a long period of time before there is a divorce. There tends to be a lot of steps prior to achieving that divorce. Separations deals with some of the intermediate issues, before the parties are ready to file for divorce. It sets down some of the rules as the parties relate to one another as they begin their journey apart. It sets down the guidelines for issues, such as spouse and child support, time sharing with the children, joint responsibilities, insurance coverage, division of assets, and so on. It lays out ground rules and provides a solid foundation for the couples to build on as they move through this very difficult process. If there are children involved, the agreement is often very populated with a plan that reflects the parenting schedules and the future payment of child support, and the rights of the spouses to spend time with the children. There are a lot of critical issues involved with a divorce and each stage of the divorce. The separation agreement deals with the issues and provides a very solid foundation for the parties to work through the divorce. It also provides a very clear framework as the parties begin their lives apart. It provides parties with protection as they move into the divorce. In terms of the separation agreement, it is a fundamental document to protect the parties from one another.
Essential Sections of a Separation Agreement Template
A legal separation agreement template in Ontario typically includes the following essential components:
Child Custody and Access: This section spells out who will have legal and physical custody of any children and the schedule for parental access. It may also address who will be responsible for making medical decisions, and any other matters relating to the care and welfare of the children.
Child Support: If there are children involved, child support will be a key component of the separation agreement. The amount of child support will typically reflect the Child Support Guidelines of Ontario. It may also address any special circumstances, such as child support for a child with special needs, or an agreement to pay for post-secondary education.
Spousal Support: Similarly, spousal support will usually be included if the couple was married. It will outline when support must be paid, how much, and will contain a review period and/or automatic termination upon the occurrence of certain conditions.
Division of Assets: Any assets acquired during the marriage or interdependent relationship must be divided between the parties. A legal separation agreement will typically include provisions for dividing family property under the Family Law Act, division of pensions or retirement savings, and debts, such as mortgages or lines of credit.
The legal separation agreement template is a crucial document. It should be drafted with the joint assistance of both spouses’ lawyers to ensure a comprehensive agreement.
Tips for Drafting a Separation Agreement
The parties do not need to go to Court to enter into a separation agreement. The lawyer of either party may be able to prepare a draft separation agreement depending on how amicably the parties have reached their agreement. The more common practice is for the spouses to each retain independent legal counsel to ensure that both parties felt that their concerns and best interests were served with the terms of the agreement they have reached.
The steps involved to get from separation (when spouses stop living together although there remains a potential for reconciliation) to new beginnings vary depending on:
For example, most people (somewhere around 80%) are able to resolve all the issues involved in their marriage breakdown amicably enough to have their lawyer prepare a separation agreement; however, a settlement conference is usually required when a majority of the material issues remain unresolved. Further, generally speaking, the more complicated the facts and issues, the more likely something like a settlement conference will be required.
If you choose to mediate your issues, each party typically selects their own family mediator. One of the parties then prepares a complete set of issues to be discussed during the mediation process as well as options for resolution of each issue. Once an agreement is reached, the family mediator will prepare a document for the parties to sign which includes the agreed upon terms. If the parties are not represented by a lawyer when they sign the separation agreement, it is recommended that the parties each have independent legal advice (ILA) for a few reasons.
First, the lawyer can ensure that each party understands the implications, advantages and disadvantages, of the agreement he or she is signing. Second, the lawyer can identify any problematic or suggest clauses not included in the agreement which may protect his or her client. Third (and probably most importantly), the lawyer can ensure that his or her client understands any issues that may arise such as tax implications or guidance on how to negotiate the free and clear release of the other spouse’s support entitlement. Without ILA the parties are merely bound by the document signed without benefit of understanding all its implications, advantages and disadvantages.
Personalizing a Separation Agreement Template
A generic legal separation agreement template can be a useful starting point; however, one cannot treat it like a document that is ready for a lawyer’s signature and a trip to court. A proper Ontario separation agreement must reflect the unique facts and circumstances of each particular case. Accordingly, it is always advisable to begin your separation agreement drafting as a "custom job," then if your initial work product becomes very long or complex, you may wish to draw on a separation agreement template to save you some time.
The best way to go about customizing your separation agreement template is to first carefully go through the form and highlight all of the sections that would require more attention in your situation. Doing this will make it much easier to work through the agreement to see what does and does not apply to you. You can then start by rewriting or tweaking every relevant section, starting with the most important sections first. In many cases, this will still be a very tedious process , but going through the separation agreement customization this way can help you avoid doing overwork and making omissions that will have to be cleaned up through a more wordy and lengthy draft.
A simple example of how to customize a separation agreement template is the section titled "Standard of Living." Many agreements will include a definition of the standard of living enjoyed by the family, which often discusses the type of home the family was used to living in during the marriage; however, if the family lived in multiple homes during the marriage and the parties are accustomed to a better standard of living due to income from family trust funds, investments or the like, the definition of the standard of living would require more work.
Another common example concerns child support. Each separation agreement template will likely have a different approach to calculating child support that may be focused on either the guidelines or the table amounts. If you are accustomed to dealing with high income, adjustments to the template process will likely be necessary.
Separation Agreement Template Errors to Avoid
Common Mistakes to Avoid when Creating A Legal Separation Agreement in Ontario
One of the most common mistakes I see with Separation Agreements in Ontario is that they have not actually been "agreed to". While I have written about the advantages of Mediation and Collaborative Law and how those approaches benefit Ontario couples going through a divorce or separation, the contracts (Separation Agreements) can still be signed off on and agreed to without proper and sufficient advice from a Lawyer.
Some of the biggest mistakes I see with these Agreements are: For Ontario couples looking at entering into or creating a Separation Agreement, the type of lawyer they hire and have drafted the Agreement can be the most important decision of their lives or can make the decision their most expensive; When it comes to entering into a Separation Agreement in Ontario, you really do get what you pay for.
When it’s Time to Get Professional Help
When drafting an Ontario legal separation agreement, seeking professional assistance is often necessary to ensure that the final product protects your best interests and is not open to later challenge or allegations of undue influence. A common scenario where a legal separation agreement is not sufficient to protect a spouse’s best interests is when one spouse is significantly more sophisticated in the negotiation phase. For example, when a spouse is highly educated (lawyers, accountants and other senior professionals are not the only ones) or has significant negotiating experience, it is vital that the document be checked and/or vetted by a family lawyer. This way, at the very least, substantive issues and concerns will be raised.
By contrast, the person who advises the most about separation agreements is the family lawyer. Your family lawyer is able and qualified to choose the required methodology and procedures most likely to meet your particular needs and circumstances.
Where to Find an Ontario Separation Agreement Template
A plethora of non-governmental and governmental websites provide resources for the creation of legal separation agreements and templates, including the Ministry of Government Services, the Ministry of the Attorney General, and Community Legal Education Ontario. In addition , some websites provide a family law forms software that can be downloaded to create Ontario legal forms for separation agreements. Websites such as CPLEA (Community Legal Education Association) offer a wide variety of family law resources. Websites such as Law Now offer current and accurate information about separating or divorcing, as well as litigation and mediation of access, parenting and/or child support issues.