Why a Separation Agreement Is So Important

What a separation agreement is

A separation agreement is a domestic contract under Part IV of Ontario's Family Law Act. Two people who have separated use it to record how they will deal with the issues that come up when a relationship ends:

• Parenting: decision-making responsibility and the parenting-time schedule
• Child support: the monthly amount and how special expenses (section 7 expenses) are shared
• Spousal support: whether it is paid, how much and for how long, or a release of it
• Property: the equalization payment for married spouses, the matrimonial home, pensions, RRSPs and other assets
• Debts, insurance and other terms: who pays what, life insurance to secure support, and how future disputes will be handled

It applies to married couples and to common-law couples. It is not the same as a divorce: a divorce ends the marriage legally, while the agreement settles everything else.

Seven reasons it matters

1. Certainty for you and your children

Separation brings a lot of uncertainty. A signed agreement replaces it with clear, written answers: where the children live and when they see each parent, how much support is paid and when, and who keeps the home. Children benefit from a stable, predictable routine, and parents avoid repeated arguments over the same issues.

2. It keeps you out of court

If you cannot agree, the only other way to settle these issues is to ask a judge to decide them. Court cases take months or years, cost far more and put decisions about your family in someone else's hands. Most families settle their issues in an agreement, often after negotiation or mediation, and never need a contested hearing.

3. It protects your property rights and deadlines

For married spouses, the Family Law Act sets strict time limits for an equalization claim: generally the earliest of six years after separation or two years after a divorce. An agreement that settles property protects you from missing those deadlines. It also records your separation date, which is the valuation date used to divide property.

4. It can be enforced like a court order

Under section 35 of the Family Law Act, you can file the agreement with the Ontario Court of Justice or the Superior Court of Justice. Once filed, its support terms can be enforced as if they were a court order, and the Family Responsibility Office can collect support payments. If circumstances change, the support terms can also be varied.

5. It makes the divorce simple

You can apply for a divorce after living separate and apart for one year. When parenting, support and property are already settled in an agreement, the divorce is usually uncontested, which means less paperwork, lower cost and no trial. The court still has to be satisfied that reasonable arrangements have been made for child support before it grants the divorce.

6. Common-law partners need it even more

Common-law partners in Ontario do not have the automatic property-sharing rights that married spouses have under the Family Law Act. Without an agreement, a common-law partner who wants a share of property often has to bring a complicated claim in court. A separation agreement can settle property, the home and any spousal support clearly, and in writing.

7. Privacy and control

Court files are generally public. An agreement lets you settle sensitive financial and family matters privately, on terms you both chose, rather than having a judge impose a result after a public hearing.

What makes an agreement hold up

An agreement is only as useful as it is enforceable. Section 55 of the Family Law Act says a domestic contract is unenforceable unless it is made in writing, signed by both parties and witnessed. Beyond that, a court can set aside all or part of an agreement under section 56(4) if:

• one person failed to disclose significant assets, debts or other liabilities that existed when the agreement was made
• one person did not understand the nature or consequences of the agreement, or
• there is another reason under the general law of contracts, such as duress, unconscionability or misrepresentation.

A court can also disregard child support terms that are unreasonable having regard to the Child Support Guidelines, and it always decides parenting issues in the best interests of the children.

The best protections are simple: exchange full financial disclosure (income tax returns, pay statements, property and pension values, debts), give each other enough time, and have each person get independent legal advice from their own lawyer before signing. The Supreme Court of Canada, in Anderson v. Anderson, 2023 SCC 13, confirmed that courts should generally respect family agreements reached through a fair process.

The risk of informal or DIY agreements

Verbal deals, emails and online templates are common, and they often cause problems later:

• An agreement that is not signed and witnessed may not be enforceable at all.
• Templates often miss key issues, such as pensions, the matrimonial home, life insurance or how section 7 expenses are shared.
• Without disclosure and legal advice, the agreement is easier to challenge, and the challenge itself means the court case you were trying to avoid.
• Vague parenting terms lead to repeated disputes, especially around holidays, travel and school decisions.

Having a lawyer draft or review the agreement usually costs far less than litigating a poorly drafted one.

What to include

• Your names, the date you separated and your children's names and birth dates
• Decision-making responsibility and a detailed parenting-time schedule, including holidays and travel
• Child support based on the Child Support Guidelines, and how section 7 expenses are shared
• Spousal support, or a clear release of it
• Division of property and debts, the equalization payment for married spouses, and what happens to the home
• Pensions, RRSPs and other investments
• Life insurance and health benefits to secure support
• How you will deal with future changes and disputes, such as mediation before court
• Confirmation of financial disclosure and independent legal advice

If you separate without an agreement

Separating without an agreement leaves the key questions open. Support may not be paid, or may be paid in amounts that do not match the Guidelines. Property deadlines keep running. Either person can start a court application at any time. If you and your former partner cannot agree, a family lawyer can help you negotiate, use mediation, or, if needed, ask the court for a temporary order while the issues are resolved.

See our guide to family court in Durham Region and what a divorce costs in Ontario.

How SLG Lawyers can help

SLG Lawyers drafts, negotiates and reviews separation agreements for married and common-law couples, and gives independent legal advice to people asked to sign one. We give you a written fee estimate before work begins, and we accept Legal Aid Ontario certificates for eligible family law matters. Meet us at our offices in Ajax, Toronto, Pickering or Whitby, open 24/7, or by video anywhere in Ontario. Learn more about separation agreements and divorce, parenting time and decision-making, child and spousal support and property division.

Sources

• Family Law Act (Ontario), including sections 7, 35, 55 and 56
• Steps to Justice: Filing your separation agreement with the court
• Divorce Act (Canada)
• Federal Child Support Guidelines
• Anderson v. Anderson, 2023 SCC 13
• Ontario: Family Responsibility Office