Separation Agreements in Ontario
For couples going through a divorce in Ontario or separating because their relationship has deteriorated, clarity with respect to the rights and obligations of both parties is extremely important. There a variety of issues in family law ranging from child custody, support, division of property, rights and obligations relating to the matrimonial home and etc. Rather than going through the formal court process, parties can negotiate a settlement of their issues by incorporating temporary or final terms in a formal legal separation agreement.
Often times entering a separation agreement is a better alternative than going to court and requesting a judge to resolve the parties’ private affairs. Not only can court proceedings be very expensive and take a long time to resolve, the court process requires you to prove everything you say using documents and witnesses. This process can be very stressful and adversarial because the other side will try to prove that you are wrong. Furthermore, the court process can turn parties against each other and may lead parties further away from reasonable compromise.
Importance of Independent Legal Advice
In order for a separation agreement to be legal and enforceable, a separation agreement must be in writing, signed and witnessed. Although not a formal requirement, independent legal advice is highly advised to ensure that both parties were informed about their respective legal rights when they signed the separation agreement.
The importance of independent legal advice cannot be emphasized enough. According to section 56(4)(b) of the Family Law Act, a court can set aside a separation agreement if a party did not understand the nature or consequences of the separation agreement. The best evidence and method of ensuring a separation agreement is not overturned on this ground is to have both parties retain independent lawyers to give them independent legal advice.
During the independent legal advice appointment, a lawyer will generally provide an overview of family law in Ontario, its application to the particular situation of the parties and then give a professional opinion on whether the separation agreement is reasonable in the circumstances. Once the parties have been given the lawyer’s professional opinion regarding the agreement, the parties will have proceed to sign off on the separation agreement.
Implications of a Separation Agreement
Signing a separation agreement can have a profound effect on you and your children for the rest of your lives. A separation agreement is a contract that you must honour. If after signing a separation agreement a party would like to renegotiate a certain aspect of the agreement both parties are free to revise their agreement. However, if a party is unwilling to agree to a revision, the parties will likely have to go to court in order to ask for a change. However, judges are hesitant to change separation agreements and will do so in rare situations, when for example there is evidence of a radical change in circumstances.
Is a Separation Agreement Right for You?
Despite the availability of a separation agreement as an alternative to court proceedings, you may have to go to court and ask a judge to settle the issues arising from your separation in certain situations. Going to court may be required if:
- You and your spouse cannot come to an agreement on how to resolve your issues
- It is unsafe to negotiate with your ex because he or she is abusive towards you
- There is a power imbalance in the relationship
- Your spouse refuses to communicate with you or is being uncooperative or unreasonable
- Your spouse is refusing to give you details about their finances
You are entitled to complete and honest information about your spouse’s financial affairs before you make any decisions. Do not sign anything until you are sure that you have all the information needed to make an informed decision. Make sure you understand what is written in the agreement and what you are agreeing to. Most importantly, seek independent legal advice from an experienced Toronto divorce lawyer to ensure that your rights are protected.
For more information about separation agreements or obtaining a divorce in Ontario, please contact our Toronto divorce lawyer.
NOTICE AND DISCLAIMER: The material posted on this website is for informational purposes only and should not be relied upon as legal advice. If you are in need of legal advice relating to your particular situation it is highly recommended to consult with a lawyer.
Helpful Resources:
Divorce and Separation
Family Justice Services
Child Custody and Access
Spousal Support
Child Support
Division or Equalization of Family Property
Treatment of a Matrimonial Home
Enforcement of Support Payments
Child Protection
Child Adoption
