A separation agreement is a domestic contract made under the Family Law Act (“FLA”). Domestic contracts may be filed with a court, which allows their support provisions to be enforced, varied or set aside.
Separation agreements solidify mutual understandings of the rights and duties two spouses have towards each other, and towards any children they have together. Rights and obligations include:
- Ownership in or division of property;
- Support obligations;
- The right to direct the education and moral training of their children. (Not the right to custody of or access to their children); and
- Any other matter in the settlement of their affairs.
Furthermore, separation agreements allow parties to deal with property division and child custody matters as they see fit. They avoid resorting to court or other costly and adversarial forums. They are an efficient and effective way to resolve issues surrounding a separation and divorce.
While it is possible to create a solid “do-it-yourself” separation agreement, most people end up making significant mistakes when drafting this document. Even if parties decide to proceed with their own drafted version, it is vital that both parties provide full, frank and accurate financial disclosure. Doing this ensures that both people are making important financial decisions based on real and accurate financial information. Parties should also obtain independent legal advice before signing. Without these two things, a court can strike down an entire separation agreement in a dispute.
Provided a separation agreement has been filed with the court, the Family Responsibility Office (FRO) can enforce the support terms. The FRO is a program of the Government of Ontario that helps families receive the support they are entitled to by collecting, distributing and enforcing child and spousal support payments. While court-imposed orders for support, once granted, are automatically filed with the FRO, separation agreements are not. This means that if a person and their ex-spouse have negotiated a formal, written separation agreement that includes support obligations, and either party wants support enforced through the FRO, they must register the separation agreement with the FRO. The process to register an agreement with the FRO is quite simple.
It is important to note that a person cannot obtain a divorce simply by entering into a separation agreement. Rather, a person must apply to the Superior Court of Justice to obtain a divorce.
If you have any questions, you can feel free to contact Shulman & Partners LLP at (416) 661-2777, and we will be more than happy to assist you.
Article written by Olivia D'Ammizio