Separation Agreements in Ontario
Separation agreements are by far the most common domestic contract implemented today as they deal with almost all outstanding issue that exist between a separated or divorced couple following the breakdown of their relationship. Separation agreements are more flexible than a court order in that the parties agree upon which terms and conditions are incorporated into the agreement and which are left out. These agreements can essentially be tailored to meet the needs and circumstances of each couple as they see fit. Possible subjects that can be incorporated into a separation agreement include the following: custody of and access to the parties children, residency arrangements, child support, spousal support, equalization, the division of property, medical and dental benefits, life insurance, travel in relation to the children as well as maintenance of their passports, how family debts are managed, as well as other similar or related provisions.
Separation agreements are an excellent option to consider when the parties separate or divorce because when a couple decides go their separate ways following a relationship they essentially have three options to help resolve the legal issues that exist between them. The parties can settle the matters out of court through their respective counsel by way of negotiation and mediation which results in a drafted separation agreement, they can use an alternative dispute resolution process such as arbitration or collaborative law, or they can proceed by way of litigation. Most parties often find that the easiest and least expensive way to settle any issues is by having their lawyers draft a separation agreement. It is highly cost effective and is generally much less expensive than pursuing litigation.
Separation agreements are an excellent means to resolving any issues that results from the breakdown of a relationship as the parties have complete control over how their issues should be resolved. When compared to litigation the parties technically loose their control as all authority is vested in the judge who will determine how the issues should be resolved. In addition, litigation is often stressful, expensive, offers no guarantee of success, and can be exceptionally acrimonious. However, it is important to note that even if the parties have invovled themselves in litigation it is never too late to consummate a separation agreement. Settlement can occur at any stage of the litigation process at which point separation agreements can be drafted and formalized.
The process of drafting a separation agreement occurs by way of negotiation. Generally, each party to the agreement has a basic idea as to what they would like to agree upon and settle. The parties thus exchange their ideas until a compromise is made, usually at some midpoint between both parties positions. Once a final agreement is reached one party will have their respective lawyer draft the contract and present it to the other party. The draft is carefully reviewed and revisions are noted. It is impotant to note that the drafting of the agreement requires intimate knowledge of family law including the legislation and caselaw as well as a honed skill in contract drafting. We therefore recommend that drafting a separation agreement is not attempted on your own.
It is at this point that the parties then sit down with their respective lawyer and review the agreement which is explained in full detail exactly how the agreement protects their interests. Each lawyer then provides independent legal advice to their client and the agreement is subsequently consummated in front of witnesses. The lawyers will then sign the certificate of independent legal advice acknowledging that same was provided to their clients. Most often four separate copies of the agreement are executed. Each lawyer receives a copy and each party to the agreement as well.
There are several common formalities that separation agreements are subject to as per the Family Law Act in order to be valid in Ontario. These requirements include the agreement must be set out in writing, the agreements should be signed by each party in the presence of a witness, the parties should not be under the age of majority or suffer from any other legal disability, and the agreement must clearly identify each party and the nature of their rights and obligations to one another. In addition, both parties must enter into the agreement freely and without undue pressure, influence, or coercion. It is also important that each party disclose in full their finances and be represented by a lawyer or at a minimum receive independent legal advice otherwise the agreement may be less reliable in the future and can thus be open to dispute.