Out of Court Separation

August 14, 2020
Rosemary Bocska

Article written by Rosemary Bocska

You and your partner (whether married or common law) decide to separate. You want to do it as effectively and economically as possible.   For virtually everyone, this means keeping optimum control of the process. You want to keep your matter as far away from the courts as is practically feasible.  If done right, this will also save you money.

One of the best ways to do this, is for both of you to enter into your own watertight, customized separation agreement.

First Things, First:  What is a Separation Agreement?

A separation agreement is a freely-negotiated document that embodies the mutually-agreed terms of your separation.  It is an enforceable legal contract, committed to writing. This addresses the manner in which you have agreed to pre-empt and resolve certain family issues. (Without having to resort to court processes or other costly adversarial methods.)

It can cover a broad assortment of topics. Including: the division of your money and assets, spousal and child support, and day-to-day arrangements for the education, care and religious upbringing of your children.  It can also cover more esoteric items, such as: parenting schedules, who has the children during holiday and vacation times, and who gets to keep your pets.

A properly-drafted, out-of-court separation agreement can be a very effective way to untangle your affairs and resolve your unique issues and disputes. Especially since it is customized to address your specific situation and individual needs. It can also be changed as needed, provided you and your partner agree.  It therefore gives you stability, predictability and flexibility at a level that can never be achieved through the court process. 

When Can We Make One (And Stay Out of Court)?

As a separating or divorcing couple, you can make a separation agreement at any time. There is no need to wait until the relationship starts to sour.  You can do this on your own, but naturally it is best if you get the help of a lawyer or mediator.

The agreement can be made before, during or after a wedding or other “official” beginning of your relationship.  You can also draft it so that it is time-limited, with the option to create a more permanent agreement at a later time.  Even after signing, if your situation later changes you can mutually agree to amend it.  Can’t come to terms on the needed changes? You can still avoid the courtroom by hiring a third-party mediator to help you come to a resolution.

In short:  A separation agreement can be made and freely changed at any time.   This makes it the ideal way to avoid the formal litigation process. Even moreso if you and your partner have no power imbalance in your relationship and can communicate well and negotiate your issues reasonably.

Formal Requirements and Independent Legal Advice

To create a valid separation agreement, you must comply with the Ontario Family Law Act, which sets out the formal requirements.  Your document must be:

  • In writing;
  • Dated;
  • Signed by both of you; and
  • Witnessed by a third party, who must also sign it.

Conversely, your agreement can be nullified if these formal steps are not followed.

Also, during the pre-signing negotiation phase it is vital that you and your partner each obtain Independent Legal Advice (ILA). This necessary step will ensure that you have each had your respective rights explained to you. It is also so that you both fully understand the nature and effect of the agreement you are on the verge of committing to. Your respective lawyers can also find any “holes” in the agreement that you may not have turned your mind to. They can identify any problem areas.


Good Agreements Avoid Court

There are many resources (including countless online ones), that offer to help you create your own separation agreement.  However, these “homemade” or Do-It-Yourself (DIY) agreements – while appealing from a cost-savings perspective – can give rise to serious legal risks.  They often lack sufficient detail and comprehensiveness, and may overlook the need for adequate financial disclosure and ILA.  Given their boilerplate nature, they are also unlikely to point you and your partner to all of the legal issues that are unique to your situation. 

At the least, you should have your DIY separation agreement reviewed by an experienced Family Law lawyer. Do this in advance of signing it, so that omissions and problem areas can be addressed.

If you do not do this, one or both of you may realize later on that your DIY agreement inadequately serves or safeguards your interests.  One of you may want the agreement rescinded or set aside by a court. This can be risky, particularly if both of you had independent legal advice. Courts take a somewhat dim view of re-opening a separation agreement in some circumstances. 

This was the scenario in Turk v. Turk,[1] which was heard by the Ontario Court of Appeal.  In that case, the spouses had entered into a separation agreement that called for the husband to pay $10,000 a month in child and spousal support.  About four years later, the wife applied unsuccessfully to have the agreement set aside, mainly on the basis that there had been inadequate financial disclosure by the husband. In the end, the Court decided even if there had been full disclosure, it would not have affected the outcome. The separation agreement had been reached on different mathematical grounds in terms of the financial calculations.  The court slapped the wife with $25,000 in legal costs.

Taking Your Out-of-Court Separation Agreement to Court

The term “out-of-court” separation agreement is actually not fully accurate.  As a best practise, you and your partner should file your signed separation agreement with the court. This is important if you have included terms relating to spousal or child support.

Doing this enables the court, as well as the Family Responsibility Office (which is a government agency that is part of the Ministry of Community and Social Services), to enforce any support payments addressed in your agreement. This also helps facilitate the resolution of misunderstandings or arguments. Essentially, in the event that you need to call upon the court to resolve any disputes around interpretation or enforcement.

The Bottom Line

Out-of-court separation agreements are highly recommended for two main reasons.  First, they allow you to take control. To prevent future disputes in the months or years it may take to fully unravel the financial, property and child-related issues that can arise if your relationship is ending.

Second, they can narrow your legal issues.  Even if you can only reach accord on some of your areas of dispute, a separation agreement can still be a great way to reduce the number of unresolved issues. The issues, for instance, that remain contentious and require formal resolution by a court or through mediation/arbitration.

With that said, if you are drafting an out-of-court agreement yourself, you need to be aware of the risks. A poorly-written or ambiguous DIY separation agreement can actually cause problems and cost you money later on.   If its validity is challenged before a court, you will likely need to hire a lawyer to help you untangle and undo it.  This process may cost you and your partner far more than you would have spent to hire an experienced lawyer to create a well-drafted agreement in the first place.

[1] (2018) ONCA 993.