Separation Agreement in Ontario
When couples are looking to separate but are not yet ready to divorce, it may be essential to draft a separation agreement. A separation agreement is a legal document which will deal with matters related to child custody, property division, spousal support, and child support.
This document will be a formal representation of the terms and conditions the couple will agree upon and list the responsibilities and rights of both parties when they separate. This document will ensure clarity as well as minimize disputes that may arise when couples decide to part ways.
It is essential that you hire a family lawyer who will professionally draft your separation agreement and will save couples unnecessary legal costs that come with disputes when matters are taken to court litigation.
What does a separation agreement do?
A document that provides parties the control over what each party’s responsibilities towards children, property, each other at the time of separation. It includes specific information about how disputes between a separating couple can be resolved.
What can be included in a separation agreement?
A separation agreement can include many things and the following list is not exhaustive:
- Matters relating to children
- Sale of a Matrimonial home
- Title transfer of a Matrimonial home
- Acquiring a new mortgage
- Spousal support
- Child support
- Dispute Resolution
- Other assets
- Miscellaneous matters
Section 54 of the Family Law Act, 2020 states:
- ownership in or division of property.
- support obligations.
- the right to direct the education and moral training of their children.
- the right to decision-making responsibility or parenting time with respect to their children; and
- any other matter in the settlement of their affairs.”
Difference between a separation agreement and divorce?
When a couple start to live separately, they will be separated but still married. To end your marriage officially, you need a Divorce Order. For a court to grant you a divorce order, you will need to be separated for one year.
You can be separated and still live in the same house for it to be considered as separation in Ontario.
The court will consider the following factors when considering if the couple is separated:
- Does the couple share a bedroom?
- Does the couple have sexual relations?
- Do they share chores?
- Do they prepare and eat meals together?
DATE OF SEPARATION
What is the date of separation?
A date of separation is the date the parties separate, and the day parties can start counting their one-year period necessary for a formal divorce. This date is important for many reasons and one of the first questions family lawyers and judges would want to know.
A formal divorce is only granted if the parties have separated for one year or more. When it comes to calculating child support and/or spousal support, it will be calculated from the date of separation. Furthermore, the division of property, assets and liability also requires a date of separation.
INDEPENDENT LEGAL ADVICE
It is necessary for both parties to have had independent legal advice and receive full and accurate financial information from both sides. The court will ensure that a certificate of Independent Legal Advice is attached to a Separation Agreement.
A separation agreement can be set – aside or varied by a Judge if they are satisfied that any one of the following were present when the Separation agreement was made:
- Undue Influence
A judge can also set aside or vary an agreement if the courts believe that it is in the best interest of a child to have the separation agreement varied or set aside.
ENFORCEMENT OF SEPARATION AGREEMENT
How will a separation agreement be enforced?
Either party can file their separation agreement in Court and can be enforced by the court in Ontario.
The Family Responsibility Office (FRO) is a government agency who will enforce the spousal and/or child support payments agreed upon.
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