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

DivorceGo

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