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Making a Legal Separation Agreement

Making a Legal Separation Agreement

When your relationship is over but you share children or property, Axess Law recommends a legal separation agreement. It protects your rights if you divorce and tells the court you plan to split and probably not get back together again. Couples who settle family law issues on their own make a more peaceful transition to living separate and apart than those who go through the stress and expense of going to court.

How Separation Agreements Work

Separation agreements in Ontario are legally binding, enforceable contracts to do specific things you both agree on. They resolve family law matters without legally ending marriage, giving you time to rethink your decision before you divorce or split up, without the formalities of divorcing. An Ontario divorce order from a family court judge is the final step in ending your marriage.

Because separation agreements are valid legal agreements, family courts have rules over how they are made. You or your spouse (or partner) can be ordered to comply with an agreement or go to mediation or arbitration to settle differences. If you get along well, you can keep the arrangements informal and not divorce. You can even have a trial separation and get back together (within 90 days) without affecting your divorce rights.

5 Types of Separation Agreements in Ontario

Your separation can be as structured as you desire. It can be:

  1. informal, verbally or in writing
  2. a written, signed and witnessed document
  3. arranged through an Ontario family lawyer, mediator or arbitrator
  4. made with help from a collaborative law lawyer
  5. or decided by a family court judge. 

Separation Agreement Checklist for Ontario

A formal separation agreement in Ontario for filing in family court must:

  • have detailed disclosure of assets, debts and liabilities
  • be signed by both parties and witnessed
  • be made voluntarily, without duress
  • be accompanied by independent legal advice certificates 
  • include information on decisions you have made, such as child custody, access, spousal support, child support payments and dividing shared property 
  • And can determine who lives in family or matrimonial homes.

You can change the terms at any time or amend separation agreements during divorce proceedings. Property division or spousal support decisions you make now can be revised in divorce court or whenever you choose. You can make some decisions right away and delay making others. 

Common Law Separation Agreements in Ontario

Common law couples have different rights than legally married spouses, but can still make separation agreements. Common law spouses leave relationships with what they brought to it, such as a home you own or investments. You can divide property acquired together any way you choose. For example, you can agree to take joint investments in exchange for giving up a shared vehicle you bought together. You may be entitled to child or spousal support and a share of your partner's work or government pensions or survivor benefits. As long as your separation agreement is fair, a court will typically consent to it.

Why You Need a Family Lawyer

Having a family lawyer ensures separation agreements, prenuptial agreements, marriage contracts or cohabitation agreements you make are legally enforceable in Ontario courts. Axess Law family lawyers review domestic contracts and inform you of legal rights and obligations during marriage breakup or separation, including who gets the ring. Living with a new partner before your separation or divorce is final can affect your property rights. We advise you on how to avoid problems that could impact divorce applications. Compared to using a downloadable or store-bought separation agreement template in Ontario, there is no substitute for family law advice from an Axess Law Ontario attorney. 

Get Independent Legal Advice Certificates

Before Ontario courts give consent orders for separation agreements, they want to know you understand the agreement and its consequences. Axess Law gives you an ILA or independent legal advice certificate for Ontario family court. 

Legal reviews of separation agreements affirm they are fair and, to the best of your knowledge, based on full and complete financial disclosure. They assist you in enforcing separation agreements in court. Our Greater Toronto Area family lawyers ensure you weren't coerced or unduly influenced to sign. 

We have family law offices near you that can give you valuable legal advice and ILA certificates for just $349.99. 

Filing Separation Agreements in Ontario Courts

When couples go to the effort of making a separation agreement, family courts usually respect its terms. While judges can order you to amend your agreement, especially around parenting visits and decision-making responsibility for children, they will generally uphold it. 

Giving your agreement to a court allows you to apply to enforce child support or get spousal support payments. Courts can also involve the Family Responsibility Office in enforcing missing or late support payments. 

Axess Law's Ontario family lawyers help you file separation agreements in Ontario courts and give you an independent legal certificate for the judge. They advise you on what to do next if your spouse or partner fails to follow separation agreement terms.

Child Access and Custody in Separation Agreements

Where your children live and how often you see them can be included in a legal separation agreement. You can determine custody and access, now called decision-making responsibility and parenting times under changes to Canada's Divorce Act, in advance of moving out or after you separate. You can even continue to live together but apart in the same home.

Your choices can be confirmed in a consent order from an Ontario family court. Family court judges consider how well you get along with your children, your parenting abilities, well-being, time you can devote to caregiving and support you have from others, such as grandparents or relatives.  

The Office of the Children's Lawyer may be appointed to find out what your children's wishes are if they are 12 or over. Courts tend to keep siblings together, but may respect a child's desire to live with a specific parent. You can request:

Joint Legal Custody

Where you both make decisions for your children and spend time living with them. Family courts prefer parents get along while caring for their children and use mediation or parenting co-ordinators to solve disputes.  

Shared or Joint Physical Custody

Where your children take turns living with you and your spouse. Your children will spend at least 40% of their time with each of you.

Split Custody

Where some children live with you and others with your spouse. Family court judges can make a split custody decision if it is in a child's best interests. 

Sole or Full Custody

Where you or your spouse make all the decisions and keep the other parent informed about your children's well-being, such as their medical care or education. 

Provided your agreement is in the best interests of the children, judges will usually sign off on parenting decisions

Book Online for Remote Video Conferencing

Our remote online lawyers can video conference with you anywhere in Ontario 7 days a week, at times convenient for you, or meet in person at any of our Toronto area law offices. We make day or evening legal appointments online or by phone you can drop by our offices to schedule a time.


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