Frequently Asked Questions on Separation Agreements

There are a number of questions that people ask in respect of separation agreements. This article will address some of the frequently asked questions in relation to separation agreements Ontario.

1. What is a separation agreement?

A separation agreement is a contract between two parties to a divorce or separation. The fact that it is a contact means that its contents are legally binding to the parties of the agreement and is governed by the law of contracts. Therefore, if any parties to the agreement fail to execute the terms of the contract either party may bring a claim for breach of contract. However, if the separation agreement is unfair or unreasonable a court will set aside such a contract and will not enforce it. For example, a separation agreement that is unreasonable is one that may exempt the noncustodial parent from paying child support to the custodial parent.

2. What aspects may be addressed in a separation agreement?
A number of aspects pertaining to how the two spouses want to handle their affairs once separated and or divorced, some of these aspects can include but are not limited to the following:

  • Custody and access to a child or children
  • Spousal support
  • Child support
  • Child maintenance
  • Debts
  • Property division

3. When will a court refuse to recognize a separation agreement?

Generally courts refuse to recognize and enforce a separation agreement as binding to its parties in the following situations:

  • Where the terms of agreement are not in the best interests of the child
  • A spouse has not fully disclosed certain assets or liabilities
  • The separation agreement is unfair, for example, one spouse waives his or her right to support without compensation

4. How do we determine spousal support?

When addressing spousal support there is need to consider the following factors (this list is not exhausted):

  • Length of marriage – normally the longer one is married the longer one spouse becomes financially dependent on the other
  • Former standard of living – generally courts like to see financially dependent spouses live according to the standard of living that he or she was used to during the marriage
  • The age and health of the spouse receiving spousal support – younger spouses who are in good health are generally viewed to require shorter periods of receiving spousal support as they are still able to find work and find a means of providing for themselves. Conversely, if the spouse is older and has poor health he or she may require more support as he or she is not likely to be able to provide for his or herself.
  • Future financial prospects of the paying spouse – spouses who are likely to be earning more in the future are often expected to pay more spousal maintenance than those who have reached the peak of their careers and have low to no chances of earning more in future.

A caution is given to persons in violent relationships or relationships where there is an imbalance of power to not have a separation agreement.

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