In Ontario, there is no such thing as ‘legal separation’. Married couples need to get divorced to finalize their separation and common law couples are not required to complete any formal process to separate.
Separated spouses may wish to enter into a separation agreement. A separation agreement is a domestic contract between both spouses who no longer wish to remain together. A separation agreement can detail rights and obligations relating to property, spousal support, obligations relating to children, and any other issues that spouses may wish to regulate.
Once the agreement is signed by both parties and witnessed, it is a legally binding contract just like any other and you cannot change the terms without an amendment or court order. Both spouses should always take independent legal advice to help avoid any agreement being overturned.
Separation agreements are not mandatory, but they can provide a reassuring avenue to avoid acrimonious disputes. It is important to note that a separation agreement does not govern the date of separation between parties – that date is that when you or your spouse have decided to separate and have no intention of resuming the relationship.
Important considerations for a separation agreement include:
1. List specifics
If you are particularly passionate about a specific object such as a prized vase, or a sentimental painting, be specific and ensure property is accurately defined in the agreement so that no dispute arises over the terms of its ownership or possession. This also applies if the item is non–tangible, for example, if it is a corporate share, describe it in detail- not simply as ‘Gilbertson Davis shares’; a more accurate description could be ‘10 A Ordinary Shares in Gilbertson Davis LLP, purchased December 30, 2019 with share certificate number 1234’. Often parties will append a Schedule to the Separation Agreement to avoid extended lists of property in the main section and allow adjustments as required.
2. Have realistic expectations
Separation agreements by nature are designed to be comprehensive, however, they cannot dictate minute details of your or your spouse’s lives. Those terms which are unrealistic or difficult to abide by will be those which are breached and result in a dispute arising which is unwanted for both spouses.
3. Future considerations – what if you or your spouse’s circumstances change?
Events such as losing a job or a promotion which will change a spouse’s financial circumstances may impact spousal or child support, a clause detailing what would happen in such situation should be considered. Parties may wish to consider the impact of a spouse re-marrying, perhaps once a spouse remarries you may wish for a clause regarding support to automatically terminate.
4. Provide a dispute resolution mechanism
Be clear about what will happen in the event of a dispute. While a separation agreement aims to avoid any dispute, they do not guarantee that parties will uphold their ends of the bargain. Should an issue arise, consider adding a clause which requires you and your spouse to meet on your own, with a trusted friend or family member or a mutually agreed upon mediator before resorting to the courts. This will assist in preserving an already tense relationship and prevent any costly and timely arguments proceeding before the Court. Be reassured that any discussion between parties will be considered for the purpose of negotiations and will remain confidential, unless otherwise required by the law.