Your guide to Separation Agreements in Ontario, written by a family lawyer

Please note that all site content is provided for general information purposes only.  For specific legal advice for your situation, please contact a family lawyer.  Please also note that all information is geared specifically to Ontario, Canada, as the law in other jurisdictions will vary.

To speak to an Ontario family lawyer and divorce lawyer serving Toronto, York Region, Richmond Hill, Vaughan, Aurora and Markham and to book a free, no-obligation 1/2 hour consultation, see www.family-lawoffice.com

What is a Separation Agreement?

A Separation Agreement is a legal document, under Ontario's Family Law Act, which sets out how you wish to deal with any issues arising out of a marriage or common-law relationship.  This can include child custody and access, child support and spousal support, division of property and equalization payments, or dealings with the matrimonial home.

Why do I need one?

A Separation Agreement eliminates the need to go to court to deal with any issues arising out of the breakdown of a marriage or common-law relationship.

Without a Separation Agreement, even if you think that you have resolved all issues, it may still be possible for an ex-spouse to make a claim against you in court.

In some situations, Separation Agreements are also necessary for tax purposes.  For example, they are needed for certain types of property transfers, and may also be needed in order for spousal support payments to be tax deductible.

Do I need a lawyer to have a Separation Agreement?

You are strongly advised to have a lawyer prepare the Separation Agreement and provide independent legal advice, for a number of reasons:

1.  This is an important legal document, and you should know your rights.

2.  If the Agreement is poorly worded or unclear, and this causes a disagreement in the future, you may need to spend time and money to have a court resolve the issue.

3.  A court could set aside the Separation Agreement if either side did not properly understand what they were signing.

Can we just use one lawyer, if we agree on everything?

No.  Each side needs to receive independent legal advice from their own lawyer.  If someone signs without receiving independent legal advice, there is a risk that they could later apply to a court to have the Separation Agreement set aside, on the basis that they did not understand the nature and consequences of the Agreement.

Do we have to exchange financial information?

A court can set aside a Separation Agreement if a party fails to disclose significant assets or significant debts or other liabilities, existing when the domestic contract was made.

Proper financial disclosure also allows the lawyer to provide full independent legal advice.

Can I save time and money by filling in a form that I found on the internet?

No.  Most Ontario family lawyers use precedents on their computers, and can quickly generate a customized Separation Agreement that contains the usual standard legal clauses.  This is actually faster than trying to correct an Agreement that was prepared using the internet.

What will save time is simply sitting down with your former partner and discussing the issues. 

If you can agree on how issues non-financial issues, like parenting, will be resolved, and write it down in plain English, there will be far less to be negotiated between lawyers.

You can also save time and money by providing pay stubs, income tax returns and Notices of Assessment for the past 3 years, and an accurate listing of all assets and debts.

If you cannot agree on key issues, you may choose to use either a mediator, or to use collaborative family law, to resolve your issues.  Either option avoids courts, and is therefore faster and cheaper.  Speak to a lawyer to see if these options are right for you.