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We asked Lisa Gelman, founder of Gelman & Associates, some commonly asked questions with regards to the separation process in Ontario. Please note that the answers are not intended to act as legal advice. These answers are intended to be a general overview on a legal topic. For more specific answers as they relate to your separation or divorce matters in Ontario, we recommend you consult with a family law lawyer.
What is required for a legal separation in Ontario?
To be considered separated in Ontario, one person in the relationship has to demonstrate the intent to separate. If one person has demonstrated an intention to be separated, they can proceed with a separation. You do not require the consent of your spouse in order to begin the separation process.
What does it mean to be separated in Ontario?
To be separated, you do not necessarily have to be living in separate residences, or even sleeping in separate rooms. In order to commence a separation process, you’ll need to notify your partner or spouse of your intent to separate. This can be done, for example, through an email in which one party informs the other party that they no longer want to be married and would like to separate. However, having a formal separation agreement in place may have protectionary benefits for both parties. We recommend each party hire their own family law lawyer to finalize a separation agreement.
What types of documents are required for a lawyer to prepare a separation agreement?
During a consultation with a family law lawyer, our team will typically begin by educating the client on what it means to separate, what the consequences may be, and how to best protect themselves. During the consultation, we may also discuss how a separation agreement – a contract between both parties – is prepared, and what should be included in it.
While finalizing a separation, it is important that both parties offer complete financial disclosure. At Gelman & Associates, clients are usually given a standard financial statement form to fill out, with detailed instructions and assistance available from our team of law clerks to help clients fill in the necessary details. When dealing with the division of assets and/or property, clients may also be required to provide financial documents such as current pay stubs, past Income Tax Returns and Notice of Assessments, T4 Slips, etc. Clients may also have to provide documentation for their assets, such as pensions, bank account statements, etc. These statements focus on two specific dates – the date of marriage and the date of separation, and may also require current values.
If neither party contests the terms of the separation, is it possible to draft an agreement of their own?
In a scenario such as this, the separating parties may save quite a bit of money by agreeing on the terms of their separation. We still recommend each party hiring a family law lawyer to provide them each with independent legal advice. It is not uncommon for a couple without a separation agreement in place to separate and then, years later, to claim they did not agree to the terms of their separation. Having a separation agreement in place and articulating the parties’ agreed-upon terms in writing, can help prevent future complications.
Does a separation agreement need to be filed in court in Ontario?
There is no legal requirement in Ontario to file a separation agreement in court. However, it may be in both your and your ex-spouse’s best interests to clearly outline the terms of your separation in writing. This may help avoid misunderstandings down the road, and provide you both with legal protection. It should also be noted that if you have children, a separation agreement is especially recommended. In order to divorce, a court may require the terms of separation, including a parenting plan and child support agreement for any children of the marriage.
What are the benefits of hiring a lawyer to prepare your separation agreement?
You may not want to sign an agreement with your ex unless they also have a lawyer. In the absence of independent legal advice, it is possible for a separation agreement to be set aside by a judge. We strongly recommend both parties hire their own lawyers for this reason, as well as to mitigate any complications that may arise in the future.
If I co-signed on a credit account for my partner and they failed to make payments, am I liable for this debt after a separation?
If you co-sign a debt with your partner, you are still responsible for paying back that debt regardless of whether you have a separation agreement. In some cases, a separation agreement may contain terms to directly address how co-signed accounts will be closed. For example, one party may have to pay off the debt incurred prior to the date of separation, or there may be a time frame on how long the party must pay off the debt and then the account be closed. Legally, if you are both on the loan, then you are both responsible for the debt until it has been paid off.
How does existing debt get separated during separation in Ontario?
It may help to prevent future debt-division issues if you sign a pre-nuptial agreement or marriage contract prior to getting married. If you have already entered into a marriage without a pre-nuptial agreement, a family lawyer may be able to assist you in drafting the terms for dividing accumulated debt, as you can still enter into a marriage contract after the date of marriage. The Family Law Act has provisions regarding how debt gets divided during a separation. Depending on the circumstances, advice on this matter may vary. We strongly recommend hiring a family lawyer to help ensure your rights and future well-being are protected.
What is the difference between a contested and uncontested divorce in Ontario?
A contested divorce means that the parties involved disagree on the details of the divorce. This may involve disagreement as to the division of property as well as how to navigate decision-making responsibility regarding any children. In some cases, one party may object to the divorce overall. Most of the time, a contested divorce can be resolved with the assistance of family lawyers facilitating a negotiation. However, sometimes a dispute requires court intervention.
An uncontested divorce is one where there is no disagreement between both parties. In an uncontested divorce, the parties agree that the marriage is over, and there is no chance at reconciliation. There are still a number of administrative tasks involved in filing an uncontested divorce, and you may be well served by working with a family lawyer and still entering into a separation agreement based on the agreed upon terms.
What if my partner or spouse collected debt without my authorization on just their name – how does this kind of debt get dealt with during a separation?
Your spouse will be legally responsible for paying their debt back to the lender. This may decrease your spouse’s accumulation of property, which may impact your share in that property’s division. The law on debts in Ontario varies depending on whether your relationship was a common law partnership or a marriage. There are typically many variables involved in determining how to deal with debt after separation. Consult with a family lawyer to discuss what may apply in your case.
How does net family property get calculated in Ontario?
In most cases, we look at the net worth of both parties (assets minus debt) from the date of marriage to the date of separation. We calculate what the net increase has been in both assets and debts. There are many exceptions to this question, however, so we recommend consulting with a family lawyer based on your unique circumstances.
What should I not do before a separation?
Try not to co-mingle any inherited money with your spouse. Try not to take out any more debt(s) together. Try to keep all your finances separate. It may likewise be wise to avoid taking on lower-paying work prior to a separation, as this may influence a court’s view on your commitments to spousal or child support. Try to be as honest as possible about your finances with your spouse.
Who gets to stay in the house during a separation?
If both parties are married, you are both entitled to stay in the house. If you are not married, then, generally speaking, whoever owns it gets to stay. However, there can be exceptions to this – especially in circumstances involving children or domestic violence – so we recommend consulting with a divorce lawyer based on the specifics of your case.
What is the first thing to do after I’ve decided to get a separation?
Contact a lawyer who practices family law. In speaking with a family lawyer, you may gain insight into your rights regarding the separation, and learn how to proceed in ways that best protect your future interests. A family lawyer may be able to help you understand the pros and cons of separation-related decisions, which may be vital at a time when emotions may be running high.
What is the difference between a separation and a divorce?
When a couple separates, a separation agreement is signed that will outline items like child support, spousal support, and other marital matters. You are not legally allowed to be remarried unless a divorce certificate has been issued after separation. A divorce is a document issued by the Court that simply allows you to get married again, should you wish to. It changes your status from divorced to single.
Should I take my spouse to court or try to negotiate a separation agreement?
Where possible, you should try and negotiate a separation. This is frequently much more inexpensive than taking your spouse to court. Working with a family lawyer may help you navigate communication with greater clarity in the negotiation process. If you have a narcissistic ex, or if there is an imbalance in power, it may be even more crucial to hire a family lawyer to assist with your legal proceedings and ensure your rights are protected.
Can the terms of a separation agreement be changed after it’s been signed?
Yes, but only with consent from both parties. If there is no consent, it is possible for you to go to court and ask for different provisions on matters such as child support or parenting plans. These are typically referred to as variation orders.
Can spouses use or hire the same lawyer for their separation agreement?
No – this could lead to conflict-of-interest issues. Having your own lawyer representing your specific interests can be vital to ensuring your rights are best represented. One party can hire a family lawyer to draft the separation agreement while the other party can retain a family lawyer to provide them with independent legal advice on the agreement before signing.
Contact Gelman & Associates for a Consultation
At Gelman & Associates, we have assisted thousands of Ontarians with legal advice on family law and divorce matters. If you or a loved one are in need of legal assistance with respect to a divorce or family law matter, book a consultation with our legal team today.
Disclaimer: Please note this article is not intended to act as legal advice. Please consult with a family law lawyer for specific legal advice as it pertains to your legal matter.