Separation Agreements and Divorces in Ontario
If you plan on separating from your common-law partner or spouse in Ontario, you need a separation agreement to determine your right and liabilities upon separation. Ideally, a separation agreement should be negotiated before your separation date, but we understand that this is not always the case. We can draft and negotiate a separation agreement after you have separated but the sooner you call us, the better we can protect your legal interests.
A separation agreement can ensure that you avoid a costly contested hearing
Trials are expensive, stressful, and time-consuming. If you hire an experienced, effective lawyer with the right intentions, they can help you negotiate a separation agreement that can protect your rights and liabilities. Once a separation agreement is signed by both parties, it becomes legally binding and enforceable. Our lawyers will handle the difficulty of filing the separation agreement with the court and will ensure all processes are properly filed. Once your separation agreement is filed with the court, it effectively resolves any issues that are addressed within the separation agreement, thus avoiding a contested hearing.
Separation Agreements for Common Law Relationships
In Ontario, the breakdown of a common law relationship has many of the same implications as the breakdown of a marriage. For this reason, having a separation agreement negotiated after the breakdown of a common law relationship is as just as important.
Separation Agreements for Divorces
The Divorce Act in Canada is federal and obtaining a divorce order is generally the same process here in Ontario as it is in each of the other provinces (other than Quebec). The first and most cumbersome step to getting a divorce is negotiating a separation agreement between the two spouses. After a separation agreement is signed by both parties, obtaining a divorce is very simple. The documents required to be filed are completed within a matter of hours and can be filed with the court thereafter. The courts throughout Ontario generally issue a divorce order within a month after the documents are filed with the court. If the two parties do not want to follow the signing of their separation agreement by seeking a divorce, they do not need to. However, a separation agreement remains important even if you do not want a divorce as it ensures that the rights and liabilities of each party are protected.
Rights and Liabilities Upon Separation
Upon separation, each spouse will have either rights or liabilities. For example, the higher-income earner will be obligated to support the lower-income earner and the primary caregiver will be entitled to child support. The rights and liabilities upon separation can be categorized as follows:
- Spousal Support
- Child Custody and Access
- Child Support
- Division of and Possession of Property
- Division of Debts
Negotiating Separation Agreements
When negotiating the signing of a separation agreement, any of the lawyers we would match you with has the same general approach.
Step one: Free consultation - At Ontario Separation we provide a free consultation so that we can understand what issues we need to address in your separation agreement. Determining whether you will seek primary care for the children, exclusive possession of the home or spousal support are examples of issues that need to be discussed. On the other hand, if you are the higher income earner, minimizing your obligations should be a goal of your lawyer when drafting your separation agreement.
Step two: Preparation for drafting - Before drafting your separation agreement, your lawyer needs to obtain the information from you that is required to draft your separation agreement. Financial documents are required to help determine your rights and liabilities in terms of spousal support and child support. Understanding your status quo and goals with respect to your children is important. Getting a full understanding of your property holdings, investments and debts is important as well. In addition to discussing your circumstances to understand the issues that we need to address and the factors that support our position, we need to demand financial and other information from your spouse.
Step three: Drafting your separation agreement - Not all separation agreements are created equal. An experienced lawyer is required to ensure that all of the proper provisions of the provincial and federal legislation are addressed in your separation agreement. Drafting a proper separation agreement is not as simple as filling in the blanks of a document. Every separation agreement is different depending on the legal issues that require resolution.
Some factors that can affect what is required to be addressed in your separation agreement include the following:
- For spousal support purposes
- Depending on whether you are the higher or lower-income earner, there will be a very different approach to drafting your separation agreement
- If you have children
- The parenting arrangement should be negotiated in the separation agreement. Our lawyers understand that negotiating a really good parenting plan in line with what our clients believe is in the best interest of the child(ren) is normally one of the main priorities of the client.
- A good parenting plan in a well-drafted separation agreement accounts for who the primary parent is, the residence where the children will reside in other factors.
- A good parenting plan is one important component of the parenting arrangement.
Step four: Negotiating a separation agreement with the other party (ex-spouse) – Our lawyers were chosen because in addition to being knowledgeable of the law, they are also excellent at legal drafting and negotiating.
Negotiating a separation agreement involves using various factors that increase your bargaining power to persuade an opposing party to come to terms with agreeing to settle on the terms that we
propose. For example: If we know you are entitled to many years of spousal support and you are willing to negotiate the amount that you are entitled to, we can explain to the opposing party that we would settle for less than the amount that you would seek at a hearing if the other terms of the proposed separation agreement are agreed to. The courts expect spouses to negotiate in good faith. We, therefore, explain to the opposing party that if they decline reasonable opportunities to settle, after a contested hearing, we could seek costs, because the losing party has to pay all of their expenses and a portion of the winning party’s legal fees.
Step Five: Filing the Separation Agreement with the Court – While filing the separation agreement with the court is not necessary for it to be enforceable, it is an option available to both parties. Generally, our firm does not file the agreement with the court; this responsibility would typically lie with the client should they choose to do so.
Frequently Asked Questions
Your first step to getting a divorce should always be to consult a lawyer to understand your rights and liabilities. The next step is usually to have a lawyer obtain enough details from you about your circumstances to draft and negotiate a settlement with your spouse that protects your rights and liabilities.
If both parties to a proceeding agree on how matters should be resolved (for example, they agree on how property should be divided) one party should have a lawyer draft their agreement in a fashion that would be accepted by the family court. It is also advisable that the other party obtain independent legal advice in writing (ILA). Obtaining an ILA is important because it helps ensure that the agreement is not thrown out by a reviewing court, and it is also important that each party understands their legal rights and liabilities.