Separation Agreements
Create a Separation Agreement
If you and your partner are largely in agreement about the arrangements for your separation, you can formalize your agreements in a separation agreement. This document serves as a written contract between you and your partner, outlining how you intend to address various matters related to your separation.
A separation agreement allows two spouses to live apart without officially ending their marriage. They can opt to reside in separate residences, although physical separation isn’t a mandatory requirement for legal separation. It’s possible to live separately while remaining under the same roof in Ontario.
This type of agreement can be established whether you’re married or in a common-law relationship.
In the case of a marriage, a separation agreement doesn’t automatically result in divorce; a court application is needed to obtain a divorce. Nevertheless, you can specify the details of how and when you plan to pursue a divorce in your separation agreement.
While legal expertise isn’t compulsory for crafting a separation agreement, seeking legal advice before finalizing one is advisable. A lawyer can help you comprehend your obligations and rights concerning your children and partner, as well as ensure that the agreement conforms to legal regulations.
Determining When to Draft a Separation Agreement
You have the flexibility to create a separation agreement at any point after you’ve separated. However, certain time limits apply when requesting certain actions from your partner, such as property division. For instance, you have six years from the separation date and two years from the divorce date to divide property.
You don’t have to wait until every detail is agreed upon before constructing a separation agreement. You can address the matters you’ve already reached consensus on while continuing to resolve other issues. For example, if you’ve come to an agreement regarding decision-making responsibilities, parenting time, and child support, you can create an agreement centered around those points while still working on property-related matters. In the past, decision-making responsibilities and parenting time were referred to as custody and access.
Furthermore, you can establish a separation agreement for a specific duration. For instance, if you’ve agreed on where your children will reside during the summer, you can specify that the agreement concludes in September.
It’s also possible to modify a separation agreement at any time by creating a new one, provided both you and your partner agree to the changes.
The Importance of a Separation Agreement
There are numerous reasons to consider drafting a separation agreement.
The Optimal Timing for Separation
It’s not uncommon for spouses to remain in the same residence during the separation process. Childcare obligations, housing constraints, and financial realities might make it impractical for either party to move out immediately. Additionally, leaving before resolving separation-related issues could impact claims such as exclusive possession of the marital home or child custody.
Furthermore, if one spouse is granted support, the support order can be retroactive to the separation date. If the supporting spouse has already moved out and hasn’t financially supported the other spouse during the separation, retroactive support for that period might be owed.
The Benefits of a Separation Agreement:
- It’s generally quicker, less expensive, and less stressful than going through court proceedings.
- It empowers you and your partner to determine what’s best for your family, instead of having the court make those decisions.
- It informs relevant parties like schools, daycares, and doctors of the agreed-upon arrangements for your children.
- It provides a more tangible record of your agreements compared to verbal understandings.
- It can be used to seek assistance from the Family Responsibility Office in case of issues related to child or spousal support.
However, there are situations where creating a separation agreement might not be the most suitable course of action:
- If there is a history of partner abuse causing fear of your partner.
- In cases involving severe mental health or substance abuse problems.
- If communication with your partner is impossible, even with assistance.
- If collaboration with your partner is unattainable, even with assistance.
In such scenarios, involving a family law professional like a mediator might be necessary for conflict resolution. The “Step: Get help from a family law professional” section provides more insights into this. Alternatively, obtaining a court order that can be enforced might be needed, meaning the court can mandate you or your partner to adhere to its directives.
Ontario has three distinct courts handling Family Law in Canada issues: the Family Court Branch of the Superior Court of Justice, Superior Court of Justice, and Ontario Court of Justice. It’s crucial to identify the appropriate court for your situation based on the nature of your family law concerns and your or your partner’s residence.
For instance, issues related to decision-making responsibility or parenting time should be addressed in the court located in the municipality where your child resides. If you’re uncertain about the appropriate court, contacting the family court in your municipality can provide clarification.
The Family Court Branch of the Superior Court of Justice is the sole court that hears all varieties of family law cases. In places without this branch, family cases are heard in either the Superior Court of Justice or the Ontario Court of Justice. Make sure to initiate your case in a court that handles the specific family law issues relevant to your situation and is located in the appropriate municipality.
Superior Court of Justice handles family law cases including divorce, property division, the matrimonial home, child and spousal support, decision-making responsibility, parenting time, restraining orders, and appeals on adoption and child protection.
