What is a Legal Separation Agreement in Ontario?


If you are thinking about separating from your spouse or have already started the “unofficial” process of separating, you may be wondering “how can I legal separation agreement” Here is a quick look at what is a Legal Separation Agreement in Ontario.

1. First the spouses identify the issues. These issues include make decisions with respect to the custody of children, who decides issues concerning the children (like education, religion, medical), visitation schedule, support for children, spousal support, property division, property equalization and more.

2. Next the spouses will exchange financial information (as of the date of marriage, the date of separation and current. This includes disclosure of Income, assets and liabilities.

3. Negotiation takes place.

4. An agreement is made and will have to be put in writing. This can cost upwards of $2,000 using a lawyer, but you can save money by creating divorce forms online at My Ontario Divorce.

5. Each spouse will have to get independent legal advice. This involves each spouse meeting with a lawyer to review the agreement. After independent legal advice is completed, the independent legal advice lawyer will issue a certificate.

6. Both spouses sign the agreement and it is very important that you store the agreement in a safe place.

7. Optional: If the agreement involves child support, the agreement can be filed with the Ontario Family Responsibility Office if you want them to collect spousal and child support for you instead of getting paid by the payor directly. This can always be done later if the payor defaults.

Steps to lower your Separation Agreement Costs

In our last article, we learned about what you can do to minimize the cost of your Divorce Application. The same money-saving approach can be applied to preparing your Separation Agreement. Today, we will examine the process for preparing a legally-enforceable Separation Agreement with minimal lawyer involvement.

Step 1: Draft your Agreement. There is a lot of misinformation about what constitutes a legally-enforceable Separation Agreement. While the contents of a Separation Agreement are flexible to permit for different situations, it is NOT sufficient to simply draft your own agreement and sign it in the presence of another person. You may choose to draft your Separation Agreement yourself, but without proper guidance, you will likely have to pay a lawyer to re-draft it.

We recommend making use of our FREE Separation Agreement Software at MyOntarioDivorce.com. It will walk you through all of the issues that need to be included in a Separation Agreement and prompt you to enter the required information. The end result is a Separation Agreement that you can save to your computer and print out at home. You can save a considerable amount of money/lawyers fees by completing this step yourself.

Step 2: Have a lawyer review your Separation Agreement. This is a crucial step that many people skip over.  Using our our free Separation Agreement Software is a great place to start. By completing your own first draft, you drastically reduce the number of hours that a lawyer will have to spend working on your Separation Agreement. However, when you are dealing with matters as important as your children and money, you will want to make sure that there is no room for error, and a lawyer can help you do that. This is also an important step when it comes to the enforceability of your Separation Agreement (more below).

Step 3: Once your Separation Agreement has been reviewed by a lawyer, you and your spouse must obtain Independent Legal Advice from two separate lawyers. The lawyers will issue you and your spouse two certificates if ILA confirming that you understand what you’re signing and were not forced to do so. You can learn more about ILA here.

Carrying out these 3 steps results in a Separation Agreement that is enforceable in a court of law. Skipping any of these steps can result in a judge throwing out your Separation Agreement and starting from scratch, taking the power out of your hands. Save money and do it right the first time!

For more information on separation, divorce, and other family law matters, please visit MyOntarioDivorce.com.

As you know, at MyOntarioDivorce.com, we aim to provide you with the tools to self-represent and manage your separation or divorce with minimal lawyer involvement.

Our clients contact us at various stages of the process, but some of the most common inquiries our lawyers receive relate to Separation Agreements. Read on to see our answers to some of your Frequently Asked Questions.

Do I need a Separation Agreement?

If you and your spouse have children, property, or a disparity in income, a Separation Agreement is crucial. It will set out how you and your spouse will deal with custody, division of property, support payments and any other issues, ideally before problems arise.

 What needs to go into my Separation Agreement?

The beauty of a Separation Agreement is that it can be whatever you want it to be. There is no official court-approved Separation Agreement template, which is a good thing because it allows you to draft an Agreement that works for your specific situation.  That being said, the key elements a strong Separation Agreement should address are custody, access, support (spousal/child), property division, and equalization payments, if applicable.

How do I draft a Separation Agreement? I can’t afford a lawyer.

We recommend that you make use of our Separation Agreement software at MyOntarioDivorce.com. It is a comprehensive program that will prompt you to answer all of the questions we’d ask you if you were in our office, paying us to draft your Separation Agreement, and- it’s FREE! It will take some time for you to complete it, but the result of your hard work is a cohesive Separation Agreement that you can print from your home computer. While the software may raise issues that you don’t need to address in your Separation Agreement  (for example: you may not have children), it may also remind you of issues you need to address.

Protecting your Money and Assets through a Separation or Divorce

If you are thinking of separating or divorcing you are likely trying to think of ways that you can protect your money and assets. If you are divorcing in Ontario the Ontario Family Law Act(the “Act”) sets out specific and sometimes complicated rules regarding the treatment of marital property.

Essentially, the Ontario Family Law Act requires married spouses to share equally in any increase or decrease in the value of their property over the course of the marriage.

Property is defined in the Ontario Family Law Act very broadly and encompasses “any interest, present or future, vested or contingent, in real or personal property”. Essentially, anything that can be considered property will be considered property for the purposes of the Act.

The process requires each spouse to determine the net value of all of the property he or she owns at the end of the marriage and to subtract from that amount the net value of the property owned as of the date of marriage, taking into account certain exclusions permitted by the Ontario Family Law Act

The value arrived at is referred to in the legislation as a spouse’s net family property. The spouse with the lesser net family property is entitled to receive, typically by way of cash payment, one-half the difference between the two net family properties. That is, if the net family properties are equalized.

Having said that, a spouse can minimize the amount of any equalization payment he or she might be required to make through careful structuring of his or her portfolio in a manner that takes full advantage of the deductions and exclusions allowed by the legislation.

If you are in a situation where you and your spouse share substantial money/assets, this is one scenario where you should consider consulting an Ontario divorce lawyer.

If you are the party who is in a stronger financial position, you should look for an Ontario divorce lawyer that specializes in equalization. A lawyer that specializes in equalization will be able to assess your exposure and help you come up with strategies to protect your property.

If you are the party who is in a weaker financial position you too should seek an Ontario divorce lawyer who specializes in Equalization in Ontario to ensure that you receive a fair and equitable divorce settlement.

Being proactive about protecting your wealth is essential. Waiting until you and your spouse have agreed to separate or divorce before starting to implement wealth preservation strategies is not an option.

As a prudent business person, your tax plan is to minimize taxes. Your business plan is to minimize expenses and maximize profit. Yet, when beginning or ending a relationship, people seldom plan to protect their assets from the consequences of marriage or separation.

To learn the strategies to protect your money and assets through a separation or divorce, go to www.BermanBarristers.com.

Legal Separation Agreement FAQ

Further to our last post, read on to learn more answers to our most frequently asked questions about Separation Agreements:

I’d feel more comfortable if I knew a lawyer had approved my Separation Agreement. What can I do?

You have two options: 1) You can have a lawyer draft your Separation Agreement from scratch, or 2) You can have a lawyer review and revise the initial draft that you’ve created. For many of our clients, having a lawyer review and revise their Agreement provides invaluable peace of mind. It’s your children, money, and property we’re dealing with, and you should be 100% confident that your best interests are represented.

What do I do when I’ve finalized my Separation Agreement?

Once you and your spouse agree on the terms of your Agreement, you should each see your own lawyer to obtain a Certificate of Independent Legal Advice. This is a precautionary measure that will help make your Separation Agreement enforceable in the eyes of the court. You can learn more about the value of obtaining Independent Legal Advice (ILA) in an upcoming article.

There’s no way my spouse is going to agree to sign a Separation Agreement. What can I do?

Unfortunately, you can’t force your spouse to sign a Separation Agreement. If you are unable to agree to terms, you or your spouse will have to bring an Application to the court to deal with your issues (custody, access, support, property, equalization). Bringing an Application to the court is not only extremely costly (you will most likely need to hire a lawyer and should expect to pay hourly rates between $250 – $550 or more) but there is also no guarantee that a court will order what you want. Do everything you can to come to an agreement with your spouse and save yourself the time and frustration.
In our previous articles about Separation Agreement FAQs (Part 1 and Part 2), we mentioned the importance of obtaining a Certificate of Independent Legal Advice (ILA).

What is ILA?

Independent Legal Advice is a general term that refers to receiving counsel from a lawyer regarding the signing of a document or any other legal matter. In the context of a Separation Agreement, the purpose is twofold. First, the lawyer will ensure that you fully understand the obvious and latent legal implications of the Agreement. Second, the lawyer will ensure that you are not being coerced into signing the Agreement by your spouse or anyone else.

What is the purpose of ILA?

Besides providing you with peace of mind that the document you’re signing positively represents your interests, ILA serves as a precautionary measure in the case that you and your spouse end up in court in the future.

Before you say, “Forget it- that will never happen to me!”, remember that it’s always best to prepare for the worst and hope for the best.  Many of our clients have amicable separations. The best course of action is to resolve as many of your issues as possible while the lines of communication are open. You never know what may happen in the future, and spouses can become quite adversarial, making issues difficult to resolve.

How does ILA help me if I end up in court?

A strong Separation Agreement with proof of ILA shows the court that you and your spouse both understood what you were signing and did so on the advice of a qualified family lawyer. If the court is advised that the Separation Agreement was signed without ILA or under duress, the judge will often throw out the Agreement and re-evaluate the issues from scratch. This means that these crucially important issues will be decided by a stranger and you may end up with an arrangement that you don’t like.

Have a pressing question about Separation Agreements? Leave it in the comments section and we may address it in a future post.

Have a pressing question about Separation Agreements? Leave it in the comments section and we may address it in a future post.

For more information on separation, divorce, and other family law matters, please visit MyOntarioDivorce.com.

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