Separation Agreement in Toronto

Separation Agreement in Toronto

SEPARATION AGREEMENT IN TORONTO

What is a Separation Agreement?

If you are contemplating a separation or are separated from your spouse or common-law partner, a domestic contract known as a ‘separation agreement’ may be drafted to make arrangements for issues such as:

  1. Division of Property (i.e. who gets to keep the car);
  2. Spousal support/spousal support releases and child support;
  3. The living arrangement of the children (i.e. custody and access).
  4. Parenting plans (i.e. religious issues, educational matters, travel etc.)
  5. Debts, pensions, medical/dental benefits, life insurance.

It is inadvisable to simply have a verbal agreement between two separating partners as it may be highly difficult to prove verbal agreements before a court of law.

A separation agreement Toronto is not a requirement to getting separated or obtaining a divorce. It primarily serves to provide definition and clarity in what can be a highly confusing and stressful situation. You do not need a lawyer to draft a separation agreement as long as it is signed by both parties in front of a witness and dated.

However, while you do not formally need a lawyer to draft a separation agreement in Toronto, it is highly recommended to retain a lawyer to draft a separation agreement as determining spousal rights and responsibilities upon the break down of a relationship maybe a highly complex task. Your lawyer will  navigate you through the process to ensure you fully understand your rights and obligations under the separation agreement and that the separation agreement is clear, complete and legally enforceable.

If you cannot agree on the contents of the separation agreement, you may also choose to go to a mediator who will then mediate the issues you and your spouse or partner are facing and then try to come to solution that is agreeable to both.

INDEPENDENT LEGAL ADVICE AND SEPARATION AGREEMENTS

One lawyer cannot act for both parties who are in need of advice in respect of advising on the contents of a separation agreement in Toronto. The parties must obtain their own independent legal advice. The reason for this is that a lawyer cannot fairly represent parties whose interests are not aligned. As is often the case in family law litigation, there are significant difference of opinions when determining rights and responsibilities of the parties involved.  Therefore, independent legal advice becomes vital before signing a separation agreement.

It is also advisable to obtain and execute an Independent Legal Advice certificates so that in the future, a party will be unable to claim that they did not understand the content of the separation agreement making it unlikely for the court to set aside the separation agreement in Toronto on that basis.

WHAT IS CONSIDERED A LEGALLY ENFORCEABLE SEPARATION AGREEMENT IN TORONTO?

Section 56(4) of the Family Law Act provides that a separation agreement will be found legally enforceable if all three criteria were present at the time the agreement was executed:

  1. significant assets and significant liabilities of both parties were disclosed at the time the agreement was made;
  2. both parties understood the nature or consequence of agreement made;
  3. the agreement was made in accordance to the law of contract. (i.e. the agreement will not be legally enforceable if it contains terms that are illegal)

CAN A SEPARATION AGREEMENT BE SET ASIDE?

The Family Law Act grants the court the power to set aside or nullify a Separation Agreement or any clause in that contract if:

  1. a spouse failed to disclose to the other significant assets, significant debts or other liabilities that existed when the Separation Agreement was made;
  2. if a spouse signs an agreement while being forced, coerced or under duress
  3. if a spouse did not understand the nature or consequences of the Separation Agreement; or
  4. if the Separation Agreement was not prepared in accordance with the law of contract.

CONCLUSION

Before you sign a separation agreement you must understand that the decisions made in this agreement will effect your future and your children’s future. A legally valid separation agreement must be abided by and will likely be upheld in a court of law in case of dispute. Therefore it is utmost important  and best to have it created by and reviewed by a lawyer to ensure the protection of your rights.

Here is a list of helpful resources that you may review when deciding whether a Separation Agreement in Toronto is right for you:

Divorce and Separation
What you should know about Family Law in Ontario
What are my rights when separating?
Family Law Information Centres
Helping Children Cope
Mediation
Collaborative Family Law
Court Locations and Addresses in Ontario

Child Support in Ontario

Child Support in Ontario

WHAT IS CHILD SUPPORT IN ONTARIO?

When parents no longer continue to reside with each other, an arrangement is usually made in terms of which  parent the children may live with and for how long. Usually  the parent with which the children reside most of time is entitled to obtain from the other parent expenses relating to raising the children. This is called child support.

ELIGIBILITY FOR CHILD SUPPORT IN ONTARIO

Payment of Child Support is determined by the living arrangement of the Child or Children. If the child or children live most of the time with one parent, then the other parent must pay. In the event that the parents spend an equal amount of time in rearing the child or children, child support is still payable. In such a situation, the parent with the higher income will normally be required to pay the net difference in the parties respective applicable amounts as specified in the Federal Child Support Guidelines.

HOW IS CHILD SUPPORT IN ONTARIO CALCULATED?

There are Federal, Provincial and Territorial Child Support guidelines that specify how much child support is payable. The amount of child support is usually calculated in relation to the paying parent’s annual income. However, you must first determine which Child Support Guideline is applicable to your situation:

1)If you are divorced or have applied for a divorce then the Federal Child Support Guideline will apply. You can calculate the amount of child support payable under the Federal Guidelines here.

2)If you were never married or were married and are separated (and neither parent has applied for a divorce) then the Provincial or Territorial Child Support Guidelines apply. You can view the Ontario child support tables here.

HOW CAN I GET CHILD SUPPORT IN ONTARIO?

Depending on whether you are entitled to receive Child Support, you can arrange child support to be paid to you in the following ways:

  • Online using this Ontario Government Website. You can use this service if you are setting up child support for the first time. Please click here to go the website.
  • A written agreement between you and the other parent;
  • In accordance with a court Order. If you are faced with an uncooperative parent, you may go to the court to obtain an Order for child support to be paid to you. Please click here for some helpful information regarding filing or changing child   support.

HOW IS CHILD SUPPORT IN ONTARIO IS ENFORCED

The Family Responsibility Office is an Ontario Government office that enforces Child Support payments. All Orders for Child Support made by the Courts are automatically filed in the FRO. Separation Agreements may also be filed in the FRO provided they have also been filed in Court.

The Family Responsibility Office collects the child support payments from the payor parent and then either mails a cheque or directly deposits the support payments into the recipient parent’s account.

In the event the payor parent misses support payments there are a number of ways the FRO can collect unpaid payments:

  1. It may deduct payments automatically from the parent’s wages or income;
  2. A charge may be registered against the parent’s personal property or real estate;
  3. It may garnish the parent’s bank account or up to half of joint bank accounts the Parent may have;
  4. An Order may be made against anyone who is helping a parent hide their income or assets that may go towards unpaid child support.

If a parent continues to not make payments, the FRO may exert pressure on that parent in the following way:

  1. It may suspend that parent’s driver license;
  2. It may cancel the parent’s passport;
  3. The parent may be reported to credit bureaus, making it difficult for them to obtain a loan.

The Family Responsibility Office can collect unpaid payments from across Canada, the US and any other country with which Ontario has an agreement.

Keep in mind that if a change is required to the amount of support payments, the FRO cannot be asked to make that change. If a parent believes a change in support payments is warranted, that change must be reflected in either a new Agreement or you can go before a court and ask to have the support Order changed.

NOTICE AND DISCLAIMER: The material posted on this website is for informational purposes only and should not be relied upon as legal advice. If you are in need of legal advice relating to your particular situation it is highly recommended to consult with a lawyer.

Uncontested Divorce in Ontario

Divorce Lawyer Toronto

When filing an uncontested divorce in Ontario, there are two types of uncontested cases:

Uncontested Sole Divorce: When both spouses are in agreement about the divorce and do not oppose the divorce, either the husband or wife files the divorce papers with the court asking for the divorce. Once the papers are filed with the court, your spouse is served with the divorce papers. Your spouse then has 30 days to contest or challenge the divorce, or make a claim such as for support, property, custody, etc. If your spouse does not challenge the divorce within the required period, the divorce will proceed as “uncontested” and will be finalized by the Ontario court.

Uncontested Joint Divorce: The second way to proceed is to file a joint divorce. In this type of filing, both the husband and wife sign and swear the divorce papers, including the Affidavit of Divorce. Neither spouse is suing the other for divorce – you are simply asking the Ontario court to grant a divorce based on separation. In a joint divorce application, spouses can also jointly ask the court to include an order relating to custody, access, support if both spouses agree to the terms. Couples prefer filing a joint divorce because filing in this manner does not require serving divorce documents on the other spouse.

Divorce Time Frame: The time that it takes to process an uncontested divorce in Ontario varies based on a number of factors. One of these factors may be the courthouse in which your divorce papers are filed. Family courts across Ontario vary in the time they take to process applications. However, as a general time frame, if all the necessary steps are taken and the documents are filed on time, it takes about 2 to 3 months to process the entire uncontested divorce in Ontario.

Clearance Certificate: Once the 8A application for divorce is filed, a document called the “clearance certificate” is sent from the Central Registry of Divorce Proceedings located in Ottawa, Ontario to the courthouse in which the divorce application is filed. This Registry keeps nation-wide records of divorce applications filed after July 2, 1968. If there is another divorce application involving the same two spouses, the Registry lets the courts know. If there are no other divorce applications involving the two spouses, the clearance certificate is sent and the divorce process moves forward. For more information about the Central Registry, you can click here.

I hope we were able to give you some of the information you required in order to make your decision about the type of divorce in Ontario that you will be filing. Whether you are filling a sole divorce or a joint divorce, our Family Lawyer can process your case or guide your decisions. Here is a link to recent publications about Family Law on the Department of Justice website.

NOTICE AND DISCLAIMER: The material posted on this website is for informational purposes only and should not be relied upon as legal advice. If you are in need of legal advice relating to your particular situation it is highly recommended to consult with a lawyer.