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Writing a separation agreement is the farthest from your mind during your wedding. But, getting separated is one of the possibilities that couples may face these days.  

In Canada, you become separated as soon as you and your spouse decide to live apart.   

You do not have to file anything to legalize this separation. But, you can have a legal contract that specifies your rights on issues such as division/distribution of properties, debts, spousal or child support, and parenting arrangement.  Separation agreements can also contain other creative clauses or provisions dealing about anything that involves your common child, or shared/common interest over anything with your spouse, or partner.

If you are drafting a separation agreement in Ontario, then this article can help you. Below are points you need to know and consider about this legally binding contract.

What Is a Separation Agreement?

A separation agreement, can also be called a domestic contract, is a written contract between two persons who cohabited with each other but are now living separately, wherein they agree on their respective rights and obligations over matters where they share common interest.   This contract must be voluntarily agreed upon, understood, and personally signed by the parties.  

For married couples, separation agreement is used as a prelude to filing for divorce.  Here, the married couple can already agree upon certain issues such as division of property, support, parenting arrangements, etc. before proceeding to Court for a divorce.  

Separation agreements can be used by both married and unmarried couples. 

Common Clauses in a Separation Agreement 

As already stated above, the clauses or provisions in a separation agreement can pertain to any matter where married or unmarried spouses have a shared or common interest over a person or thing.  The most common clause or provision in a separation agreement are those things stated in Section 54 of the Family Law Act:

  1. ownership in or division of property;
  2. support obligations;
  3. the right to direct the education and moral training of their children;
  4. the right to decision-making responsibility or parenting time with respect to their children; and
  5. any other matter in the settlement of their affairs.

Ownership in or Division of Property

Most likely than not, during the relationship, couples would tend to purchase things of value or properties,  and sometimes they would even bring their own personal properties into the relationship.  Property or assets include money, vehicles, homes, businesses, business interest, stocks, or even cryptocurrency.

For unmarried couples, the issue of ownership or division of properties is relatively easier than that for the married ones.  This is so because unmarried couples are still considered by law as individuals.  Thus, whatever it was that you brought in during the relationship, whether or not the thing is commonly used by you and your partner, is still owned by you.  However, if the property or thing cannot be determined as to whose funds were used to purchase/acquire the same, or on paper the property is commonly owned by you and your partner, that property or thing may be divided between you and your partner in whatever sharing that may be agreed upon.

For married couples, the net family property will be determined before dividing the same equally between the spouses.  Property acquired during the marriage will be shared equally by the spouses when the marriage ends.  For example, during the marriage you used your salary to purchase your car, when the marriage ends, the value of that car will be included in the net family property that will be shared equally between you and your spouse.

Support Obligations

Married and unmarried couples can already agree on matters pertaining to support obligations.  Support can mean spousal or child support, support to spouse pending divorce, and support to ex-spouse post divorce.

Support obligation pertains to the financial support that the spouse is obligated to give to the other spouse and the common child. 

In making child support agreements, Courts tend to accept the same if the agreement is reasonable and conforms with minimum prescribed in the Child Support Guidelines.

Right to direct the education and moral training of their children; Right to decision-making responsibility or parenting time with respect to their children

These are matters that may be agreed upon by the couple if they have a common child/ren.  This is basically the decision-making responsibility and parenting time.  

Decision-making responsibility is the power or right to decide matters that are crucial, important, and will impact a child.  This includes matters on education, moral training, religion, health, and the like.  

In making a separation agreement, matters about the child may be agreed upon by the spouses separately from who among the spouses will have decision making responsibility.  Thus, in the separation agreement, the spouses may agree that their child should be raised under a specific religion or faith, while in the same separation agreement the decision-making responsibility is given to only one of them.

Other matter in the settlement of their affairs

This pertains to the aspect in the relationship wherein the couple shares a common interest over something.  This is where the creativity of the couple may come into play.  For purposes of this article, we selected some matters that you may find useful to include  in your separation agreement:

  • Debts

Non-disclosure of significant debts or liabilities may result in the setting aside of the separation agreement by the Courts.  Family Law Act section 56 (4).

  • Provision for Divorce

For married couples, the separation agreement can be a precursor to a divorce. The expenses that may be incurred in the event the separation leads to divorce may be discussed in the separation agreement.

  • Dispute Resolution

This can be included in the separation agreement if the couple, even after the divorce or separation, still continue to share a common interest or responsibility over a thing or someone.  Dispute resolution specifies how you and your spouse will tackle any issue/dispute that may come in the future which are not specifically identified in the other clauses in the separation agreement.  

Tips for Drafting the Ideal Separation Agreement in Ontario

There are two ways you can go about drafting your separation agreement. You can do it yourself or you can approach the lawyers of Gelman & Associates.

Should you and your spouse choose to draft a separation agreement by yourselves, here are tips that you can follow in order to make the separation agreement valid and minimize the risk of it being overturned by the Courts.

Be guided by Section 56 (4) of the Family Law Act:

  • Disclose ALL significant assets, liabilities, and debts  that are existing at the time the separation agreement was made.  Failure to disclose significant assets, liabilities, and debts will pose a potential problem in the long run.  Ultimately, if the issue then exists and Court intervention is employed, the separation agreement will be invalidated.
  • Both you and your spouse fully understand that you are entering into a separation agreement; that both of you understand the nature of the separation agreement; you and your spouse know your rights; you and your spouse understand the consequences of the separation agreement.  
  • Make sure that the separation agreement is not contrary to law.  This presupposes that the clauses, provisions, or terms in the separation agreement are not contrary to law.  

The parties in the separation agreement should have no legal impediment for them to enter into a contract.  For example, one of the spouses is legally insane; any agreement entered into with the legally insane spouse is invalid.  Another example may be when one spouse entered into the separation agreement because of undue influence or under duress.  Entering into any contract or agreement while being unduly influenced or while under duress makes the contract invalid.

The separation agreement must not be unconscionable.  This simply means that the separation agreement must be fair. 

Separation Agreements must have a witness

Domestic contracts such as separation agreements need to be witnessed by a third party to be valid.  The witness must also sign the separation agreement.

Use Simple Terms
Although this seems clear enough, many couples worry about using legal terms in their separation agreement. You do not have to be one of them.

The essential thing about your agreement is that you and your spouse can understand it. It should also be understandable by anyone else who might read it.  Don’t be shy in using words that both you and your spouse can fully understand.

Write Clearly and Consistently
Your separation agreement should make sense. It has to be logical, consistent, and clear on every detail. Remember that vague provisions can create confusion, which may end up in litigation. And, you do not want this.

So, if there are parts of your agreement that seem unclear, then rewrite and read them over and over. Consider finding someone else to review the content of your agreement to ensure that everything makes sense and is not open for multiple interpretations.

Come Up with an Evolving Agreement

Issues like the division of properties are easy to set out on your separation agreement. They become legally binding and cannot be modified once you and your spouse sign the agreement. However, it is not the same for such matters as your children.

Parental responsibilities change over time. So, you should ensure that your separation agreement takes into account your children’s changing needs as they grow. Schedules for parenting time or even the support can change depending on several circumstances.

To make sure that your separation contract covers everything, have a lawyer go over your draft. Gelman & Associates can protect you from possible liabilities that you may encounter because of the loopholes in your arrangement.

If you and your spouse need a break from the relationship, you may choose to live apart while you decide between divorce or reconciliation. Contact a family lawyer from Gelman & Associates to guide you in writing a separation agreement that will be beneficial to both of you.


Pro Tip

For married couples, separation agreement does not necessarily mean that the spouses should follow-through with divorce.  Married couples can use separation agreements to manage their affairs while they are separated and taking a break from each other.



Contact a Family Lawyer from Gelman & Associates

As it was stated above, in making separation agreements, couples can use their creativity in coming up with the clauses, provisions, or terms.  However, in employing “creativity”, couples might come up with clauses that may affect the validity of the separation agreement.

In Gelman & Associates, we can help spouses draft a creative and customized separation agreement.  In drafting or creating the separation agreement, we give paramount consideration to the child’s interest (assuming that there is a common child) and the wishes of the spouses, while staying in line with the technical and legal aspect of the agreement to minimize or eliminate the risk of having the separation agreement overturned by the Courts.

For you to understand things better, our lawyers will guide you through the family law system of Ontario. They will protect your rights and ensure that you have a sound separation agreement. So, contact us or visit our website today.


FAQs on Writing a Separation Agreement

FAQ: Things to Consider When Writing a Separation Agreement

Yes it is still valid.  It can be that both spouses willfully, consciously, and voluntarily entered into a separation agreement that is more favorable to one of the spouses.   However, this type of one-sided separation agreement will raise the alarms of the Court and may cause the invalidity of the separation agreement.

Yes you can still make a separation agreement even if the decision-making responsibility is not included.  You and your spouse can seek the intervention of the Courts to sort out the issue on the decision-making responsibility without affecting the separation agreement.

Yes.  Being separated or living apart does not mean that you have to be living in separate houses. As long as you sleep in separate bedrooms, no longer engage in sexual relations, and don’t do any chores and activities together, then you can already be considered separated.   If you and your spouse eventually get a divorce, the fact of being already “separated” may be harder to prove if you live together in the same house/dwelling.

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