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Understanding Separation: What It Means and the Importance of Separation Agreements in Ontario


A couple sitting at a table reviewing a separation agreement

What Does “Separation” Mean?

The government of Canada defines separation as “when a couple decides to live apart from each other because the relationship has broken down. The couple may be married or unmarried but living together like a married couple in a common-law relationship.1” Separation is distinguished from divorce, as divorce only applies solely to married couples. Divorce, unlike separation, is governed federally by the Divorce Act. In turn, The Family Law Act in Ontario regulates Separation Agreements.


What is a Separation Agreement?

A separation agreement in Ontario is a legally binding domestic contract between married or common-law spouses. A Separation Agreement may set out or alter the legal rights of spouses. In Ontario, the law allows spouses to enter into domestic contracts regarding several issues, including but not limited to child custody, spousal support, property, debts, pensions, RRSPs, and RESPs. Separation Agreements are available to both married spouses and common-law spouses.

Separation agreements in Ontario allow spouses to live separate and apart without legally ending their marriage. It is important to note that spouses can live independent lives under the same roof in Ontario. If parties are, in fact, living under the same roof but separated, the court will look at factors such as whether the spouses share a bedroom, have continued sexual relations, eat together, attend social events as a couple, and operate as a couple towards scheduling.


Why a Separation Agreement?

A separation agreement is one of the many tools that parties can utilize in Family Law proceedings in the province of Ontario. There are several reasons why a spouse(s) would want to complete a separation agreement. A separation agreement can help ensure the welfare and care of the children after a separation. The agreement helps to protect any assets accumulated throughout the relationship.

It should be noted that separation agreements are not mandatory for Divorce in Ontario. However, creating a Separation Agreement can be helpful for potential future court proceedings.


What Goes Into a Separation Agreement?

There are several things to consider when drafting a separation agreement. When ensuring that the separation agreement is legally binding, first, it is imperative that the agreement is fair. The court will not accept unfairly preferential or unreasonable agreements in one party’s favour.

Second, the items needed when drafting a separation agreement:

1) Full name of each spouse

2) Date of separation

3) Issues surrounding children

4) Spousal support

5) Property division

6) Debts

7) Pensions, RRSPs, RESPs, etc.


Once a separation agreement has been drafted and is ready for execution, it is recommended that both spouses receive independent legal advice regarding the terms of the agreement prior to signing the document.


Why Would a Court Refuse a Separation Agreement?

The final say on a separation agreement will be a family court judge. Family court judges in Ontario have the power to reject terms of an agreement that are unreasonable, clearly unfair, or not in the children’s best interest. A family court judge may reject an agreement based on validity. This situation may occur when one spouse provides inadequate disclosure.

If a judge rejects your agreement due to terms within the agreement, it is advised that you consult a lawyer regarding the problematic terms.


Temporary Agreements vs Permanent Agreements

A temporary separation agreement is an agreement that is valid until the parties get divorced. A permanent separation agreement is an agreement that remains in effect even after the couple gets divorced.


What Happens if One of the Spouses Does Not Agree to the Terms of the Agreement?

If the parties cannot come to an agreement on their own terms, a mediator may be employed to help the parties come to an agreement. If the mediator is unable to help the parties come to an agreement, litigation is available to the parties. Through the litigation court system, a family law judge is able to step in and enforce an agreement, thus binding the parties.


Other things to consider when drafting a separation agreement in Ontario It is important to note that a separation agreement is a legally binding contract. Thus, as a party to the agreement, you must honour its provisions. Therefore, it is best to have the agreement drafted by a lawyer or, if not possible, reviewed by a lawyer before the agreement is executed.

Separation can be highly stressful and emotional, as with all family law matters. Thus, it is easy for things to escalate and boil over quickly. Thus, it is essential to remember to keep a level-headed and objective approach to the situation. Doing so prevents future problems from arising or exacerbating current ones.


When conducting a quick Google search, it becomes evident that there are numerous template-style separation agreements available. Although these agreements may appear enticing due to their affordability, it is important to recognize the potential risks involved in pursuing a separation agreement in Ontario through this method. There is a possibility that the court may invalidate template-style arrangements. To mitigate these risks, the Law Society of Ontario provides a free downloadable separation agreement checklist and template on its website. Consulting this resource before embarking on the process of creating a separation agreement in Ontario can be beneficial. It is strongly recommended to have a separation agreement drafted by a lawyer in Ontario.

For more information on the separation process in Ontario and what to expect, please visit our website at inbfamilylaw.ca or call us at 905-215-1905 to schedule a consultation.

 

1. https://www.justice.gc.ca/eng/fldf/divorce/sd.html#:~:text=A%20%22separation%22%20is%

20when%20a,court%20officially%20ends%20a%20marriage.

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