Not everyone needs to go to court to settle matters. If you and your common-law partner or spouse want to settle matters, then you can opt for a separation agreement in Ontario that will enable you to have peace of mind knowing your issues have been settled.
If you want more information about such an agreement, you have come to the right place. Our family lawyers in Scarborough have created a complete guide to help you understand separation agreements.
What is a Separation Agreement?
As the name suggests, a separation agreement is a contract between two people who were living together and are now not living with one another.
The agreement is created to ensure that the rights of both parties are protected and that there is a settlement arrangement.
For example, a separation agreement in Ontario must negotiate parenting arrangements, financial arrangements, and much more.
It is crucial to ensure that the agreement is in accordance with Ontario laws. So, if you or your spouse/domestic partner/common-law partner decide to separate, it is time to consider a separation agreement.
Separation Vs. Divorce: The Key Differences
Married couples must understand the differences between divorce & separation to make an accurate judgment about the agreements they will have to legally enter.
Our family lawyers in Scarborough have listed down the differences to help you understand them in detail:
What Happens In a Separation?
During a separation, the couple will have to create a separation agreement in Ontario and decide to sign a settlement agreement that will put them apart.
Remember that you are separated, and your commitment has not ended legally. This means that you might not be able to remarry, and you will have to indicate your new status when filling out important forms.
The couple can begin living separately while the court gives an order to them to separate their:
- Marital assets
- Child custody
- Spousal support
- Child support
You can learn how to do your own separation agreement in Ontario or hire the best family lawyers to create and review the documents.
What Happens in a Divorce?
On the other hand, a divorce is when you are no longer legally married to your spouse. You are free to get married to someone else as you legally dissolve or terminate your marriage.
Everything is shared in a divorce, and one party may also be awarded the highest percentage of what both parties own.
If you want to dive deeply into separation vs. divorce in Canada, we recommend reading the federal and provincial laws that guide separation and divorce in Canada.
The Key Components of a Separation Agreement in Ontario
A separation agreement in Ontario is important because it guides how the separated couple will deal with specific issues. Let’s review some of the top key components of a separation agreement that you and your partner will have to review:
1. Parenting Arrangements
If you are separating from your spouse and you have kids, then you will have to think about the parenting arrangements. Family lawyers in Scarborough can help create parenting arrangements that will determine:
- How much time the child will spend with each parent
- When the child will spend time with each parent
- How will the child spend different holidays
- What parenting plan do the spouses have in mind after separation
- What will happen if one parent wants to relocate
- How both spouses juggle the parenting schedule
Such arrangements will help resolve any matters you may have during the separation.
2. Spousal Support
A separation agreement in Ontario will also help both parties specify if one spouse will pay spousal support to the other.
If this is the case, then the agreement will determine the following tenets of spousal support:
- How much spousal support will be paid
- For how long the support will be waived
- In the case of waiving spousal support, the agreement will indicate the reason for waiving spousal support
- Indication of the circumstances under which there will be a change or termination of spousal support
Another important note to keep in mind is that if the spousal support claims are waived, then your separation agreement will have to ensure that this waiver is binding and remains enforceable.
It will also state why the waiver is part of the separation agreement. For example, support might be waived if the spouse is getting more assets in the property division or a larger share of the home.
3. Child Support
If the couple has children, then child support becomes a key element of the separation agreement in Ontario to protect the rights and standard of living of the children.
The calculation of child support in Ontario needs to be in accordance with the Ontario Child Support Guidelines. The responsibility of financially supporting the child falls on both the parents, and the support will be based on the number of children and income level.
It is also crucial to determine if there will be any special or extraordinary expenses for the child. These can include the following:
- Private school expenses
- Special needs program expenses
- Expensive extracurricular activities
- Post-secondary education
- And more
The parents will also have to specify when the child support will end. Another important determination of such support is to indicate the types of changes that will lead to changes in child support payments.
4. Property Division
Couples, especially married ones, have net family properties that need to be divided. The separation agreement in Toronto will determine:
- How the property will be divided between the couple
- The equalization payment
- When the equalization payment will be paid
In some cases, the spouses will get certain benefits in exchange for others. So, the agreement should specify if this is the case when the property is divided between the two.
5. Dispute Resolution
When couples get separated, they are still in touch to determine certain practical aspects, especially when a child is involved. However, there might be disputes as you might not agree on certain things.
This is where dispute resolution comes in to help parties specify how future disputes will be resolved through the separation agreement in Ontario. You can opt for family lawyers, mediators, or arbitrators you can turn to when there is a disagreement.
6. Marital Home
Married couples need to determine what will happen to their marital home after the separation. Will they sell it, and if that is the case, then how and when will they sell it?
They must also determine the division of the proceeds from selling the marital home. A separation agreement can also specify if one spouse will continue living in the home.
If they plan to remain in the marital home, the other will have to buy them out. In such a case, the agreement will also determine how such an arrangement will be set out.
If one party has a pension, the agreement will also have to define how the pension will be set out. This is because the work pension doesn’t belong to just one set.
Instead, it is viewed as a marital asset that must be considered during negotiations. So, this will be included in your separation agreement in Ontario.
It is crucial to consult with family lawyers first before you add this to your agreement. Most people don’t understand the difference between a Pension Statement and Valuation for the purpose of separation.
Because of this, we recommend you consult with a professional so they can value it accurately and add it to your agreement.
If the spouses have any debts, then the separation agreement will determine how the debt will be divided. The parties will have to declare outstanding debts and liabilities.
The financial disclosure is part of the separation agreement in Ontario and states these important terms. It will deal with all the finances of the spouses and their divisions.
9. Dental and Medical Benefits
Dental and medical benefits are part of the benefits that married couples get. Parties can indicate if one or both of them will maintain the children on their dental and medical plans for a specified time period.
Another thing parties can specify is how the payment of uncovered dental and medical care will be divided between both. A professional family lawyer can help divide such benefits between the parties.
When Do You Need a Separation Agreement: Understanding the Three Types of Separation
There are three types of separation, and you can use a separation agreement in Ontario for each of them. Here are the three situations and cases where you will need a separation agreement:
Type 1: You and Your Spouse are Living Separately and Haven’t Decided If You Will End the Relationship
This is also known as trial separation, and the spouses have not decided whether they want to opt for divorce or reconcile.
In this case, you can create a separation agreement to solve your matters for the time being and outline obligations during the separation.
Type 2: You Are Planning on a Divorce While Being Separated
This is also known as permanent separation and is the case when you and your spouse are separated and currently pursuing a divorce.
The separation agreement in Ontario during this time will govern your actions, and you can submit this for the divorce proceedings as well.
Sometimes, a judge will consider these terms when finalizing divorce so you and your spouse can have some control.
Type 3: You Want Permanent Legal Separation While Maintaining Marital Status Legally
Such a separation is known as a legal separation. In this case, you and your spouse will live separately but maintain the legal marriage status.
Many people pursue this type of separation for different reasons, such as tax benefits, religious values, and more.
However, Canada doesn’t recognize legal separation. Instead, the law states that if you are separated from your spouse for over a year, then you will need to get divorced.
How to do Your Own Separation Agreement in Ontario?
Not everyone wants to go through family lawyers in Scarborough and try to create their own separation agreement. The good thing is you can do that if you understand the guidelines and steps you must follow.
Our family lawyers have helped you understand how to do your own separation agreement in Ontario below:
1. Be Cautious of the Separation Agreement Online
There are many resources online that offer separation agreement templates online to help people. However, we recommend not using these because each separation process is unique to the individuals going through it.
While a separation agreement online can give you some guidelines, it is better to let a professional review the agreement and provide you with professional legal guidance.
2. Figure out the Key Components of a Separation Agreement in Ontario
We stated all the key components of a separation agreement in Ontario above. We recommend you go through each component in detail with your spouse.
Both of you can mutually decide on parenting arrangements, child support, spousal support, and more. Then, you can create an agreement that would state these arrangements between you and your spouse.
3. Let Family Lawyers in Scarborough Offer Expert Opinion
Even after you have followed a separation agreement online template and created one, we recommend you let family lawyers review the document.
They will offer knowledgeable legal advice that will help you understand any gaps in your agreement. A professional eye will guarantee that the obligations and rights of both spouses are protected.
Such a consultation will fall under legal advice that will help you have a solid agreement. Once a family lawyer has reviewed it, you can fill out the form and submit it to the relevant government body.
4. Fill out Form 26B
Now that you have an official agreement, it is time to fill out the form 26B. This is the affidavit for filing a domestic contract or paternity agreement.
You must attach your separation agreement in Ontario with this form. Remember, you can file the documents online or in person with the Ontario Court of Justice or the Family Court branch of the Superior Court of Justice.
The reason for filing with the courts can be so:
- The court can enforce the terms of the agreement, which means you and your partner will have to follow it
- The FRO (Family Responsibility Office) can enforce support
FRO collects support payments from one of the spouses and sends them to the other. The agency also ensures that spousal payments and child support payments are made.
If any party misses payments, the FRO can take action to enforce the agreement and its terms.
The Cost of a Separation Agreement in Ontario
The cost of a separation agreement in Ontario will depend on how you want to go about it. For example, there will be no cost if you do it on your own, as there is no legal process.
However, if you choose a family lawyer to draft your settlement, then you will have to pay their fees. Each lawyer has a unique cost, as this will vary between each one.
Let’s review the types of fees and costs you can expect to incur when you opt for a separation agreement in Ontario.
According to a 2021 legal fees survey in Canada, the national average cost of a separation agreement with children is $7,014. On the other hand, the same agreement without children is $5,463.
Ultimately, the fees will depend on the family lawyer, their expertise, and other factors. However, you can expect to pay anywhere between this range for a good family lawyer in Ontario.
If you want to take this to trial or court, then you will have to pay the court fees. Keep in mind that the Ontario Court of Justice has no fees.
However, if your case is at the Family Branch of the Superior Court of Justice, then you will have to incur the following fees:
- $202 for application filing
- $161 for answer filing
- $212 for filing an application that includes divorce
- $202 to file an answer that includes divorce
There are many times when a family can’t afford to pay the fees because of various reasons. If that is the case with you, then you get to opt for a fee waiver.
Sample of Separation Agreement in Ontario
Your sample of a separation agreement in Ontario should follow Section 54 of the Family Law Act. It states that:
“Two persons who cohabited and are living separate and apart may enter into an agreement in which they agree on their respective rights and obligations, including:
- Ownership in or division of property
- Support obligations
- The right to direct the education and moral training of their children
- The right to decision-making responsibility or parenting time with respect to their children and
- Any other matter in the settlement of their affairs.”
So, the sample separation agreement in Ontario you plan on creating should include all of these elements. Once they do, you will have a separation agreement that will save the cost of going to family lawyers in Scarborough.
What If My Spouse Won’t Sign Separation Agreement?
There are many cases where a separation agreement is not a mutual decision. One partner wants to separate, and the other does not.
If you create a separation agreement in Ontario and your spouse refuses to sign it, then this will lead to a contested divorce.
Remember that going through a contested divorce is costly and time-consuming for both parties.
We recommend you work with an expert divorce lawyer to ensure a fair separation without going through the hassle of a contested divorce.
Can you do your own separation agreement in Ontario?
Yes, you can. But, we recommend that after you create the agreement by yourself, you should have it reviewed by family lawyers in Ontario. They will fill any gaps and provide expert legal opinions on how to make the agreement better.
Do you need a lawyer for a separation agreement in Ontario?
You don’t need a lawyer for a separation agreement in Ontario, but we recommend opting for their legal advice and reviewing the documents. It will guarantee you have an enforceable agreement that is fair to both parties.
How much does a separation agreement cost in Ontario?
If you are creating the separation agreement on your own, then it will cost nothing. However, if you opt for a lawyer, then it can cost a few thousand dollars, based on the national average.
Do I have to support my wife if we are separated?
If your wife has been financially reliant on you, then you might have to pay them spousal support. There are many factors that determine the right to spousal support. We recommend getting legal advice from the best family lawyers in Ontario to protect your rights.
What not to do during separation?
There are certain things to avoid when going through a separation. These include the following:
- Letting others influence your decision-making
- Making rash decisions
- Moving out of the house
- And more
This is everything you need to know about a separation agreement in Ontario. While you can learn how to do the separation agreement on your own, it is always best to let a lawyer review the information.
It will enable you to have the ideal document that protects both of your rights. For more information regarding a separation agreement, please feel free to get in touch with us today, as we will be more than happy to help you out.
- Athena Narsingh is a trusted and knowledgeable lawyer in Scarborough. Her expertise spans real estate law, family law, adoptions and fertility law. A lawyer by profession and a humanitarian by heart, Athena Narsingh wants to help people become more familiar with the legal system and be well-informed to make important legal decisions.
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