Tips for Creating an Enforceable Separation Agreement
In Ontario, a couple can live “separate and apart” but maintain their legal marriage status (if married at the time). They can make a binding contract. Cohabiting but unmarried couples can also enter into a binding written contract or “Separation Agreement”. If you decide to go the contract route, you would be well advised to ‘make it official’. A Separation Agreement can set out each side’s rights and responsibilities. And it can “stick” (or not, depending on how you go about it).
These agreements establish the framework for resolving various issues related to your separation. However, these agreements must be legally enforceable to have any value. And to make such agreements legally enforceable, there are things that you have to do and there are things that you should refrain from doing.
Informed advice can be essential
Use online templates to create a Separation Agreement at your own risk. It’s not a good idea in my view. Rely on informal discussions or mutual understandings and then wait to see how far that’ll get ya. Kitchen table notes and/or perhaps a few texts back and forth = heartache and increased legal expenses down the line.
Filling out forms and filing them yourself may seem simple (and enticingly inexpensive), but mistakes, ambiguity, and misunderstandings (let alone the lack of legal advice as to your rights) can combine to create setbacks and losses you would likely prefer to avoid. Further, without a legal agreement, either of you could go back on your word without consequence, and you can run into enforcement challenges. So you guessed it. Colman is not a big fan of kitchen table agreements.
It is wise to consult professionals experienced in the legal, financial, and psychological factors involved in separation. Doing so helps you to acquire the requisite knowledge to make informed choices, create effective legal agreements, and avoid higher legal expenses later in all likelihood.
It is also crucial to note that creating a Separation Agreement may not be sufficient in all cases. Informed legal advice can help you understand what additional steps or alternatives may help to protect you.
Know what issues to tackle
A Separation Agreement should cover the essential matters related to your children, property, and post-separation expectations, including:
- Child support obligations, if appropriate;
- Decision-making authority for children;
- Parenting time rules and schedules;
- Separation of your property and financial assets (including “equalization of net family property”);
- Debt payment obligations;
- Spousal support payments;
- Disentangling from shared corporate ownership (and other issues that can arise from the Ontario Business Corporations Act).
These issues can have a tremendous impact on the transition into a separation and your life afterward. Doing it without a family law lawyer for each side is usually a very bad idea.
Make sure it’s binding
There are various grounds that a disgruntled former partner (spouse or otherwise) can raise to potentially later set aside or cancel out a Separation Agreement (in whole or in part):
- Lack of comprehensive and documented financial disclosure;
- Lack of independent legal representation throughout;
- Fraud, duress, undue influence;
- The Separation Agreement does not comply with the overall objectives of the Divorce Act [in other words, be careful about making ‘too good of a deal’].
(Note: I discuss those above four factors in many places in this blog as they relate to Marriage Contracts. Both Marriage Contracts and Separation Agreements are “Domestic Contracts” within the meaning of Ontario’s Family Law Act. The pre-contract stringencies apply equally to both types of domestic contracts.)
In addition, please note that it is a hard and fast requirement that the Separation Agreement be in writing, signed, and witnessed.
Heeding the warnings in this blog post maximizes the chances that the Separation Agreement will be upheld later. Go do it on your own at your peril.
