Are you in the process of separating from your partner? Whether you are doing so in preparation for a divorce or if you were never formally married, there are certain things you’ll want to keep in mind as you proceed. In Ontario, a separation agreement should ideally address five specific issues stipulated by the Family Law Act.
#1 – Property Division
A valid separation agreement must address the ownership and division of property. Both parties must create an inventory of all joint and separate assets. This list should include not just real estate but also bank accounts, investments, debts, and other significant property like vehicles or valuable heirlooms. The standard court form that shows values on three dates (marriage, separation, current) should be used.
Special consideration goes to the matrimonial home, if one exists. In Ontario, where the spouses are legally married, the matrimonial home attracts special statutory rights regardless of whose name is on the title. In many cases, couples choose to sell the home and split the proceeds (but be careful where only one spouse is the titled owner – things can work out strangely under the law).
#2 – Support Obligations
Addressing support obligations is also essential in crafting a valid separation agreement in Ontario. There are generally two types of support obligations that may be relevant: spousal support and child support.
In both cases, the separation agreement should outline the amount of support to be paid, the frequency of payments, and the conditions under which these amounts can be changed. Specific clauses can be included for instances like changes in income, remarriage, or cohabitation with a new partner, which could affect support obligations.
#3 – Child Education
This element pertains to how any children from the partnership will be raised, what educational institutions they will attend, and what moral or religious teachings they will be exposed to. Since these are potentially sensitive topics that greatly impact a child’s upbringing, parents must communicate openly and arrive at a mutual decision in their separation agreement.
The agreement could specify, for instance, whether the child will attend a public or private school or receive homeschooling. If religion plays a significant role in the family’s life, the agreement could outline how and where the child will receive religious education. Some parents also include provisions for extracurricular activities, tutoring, or other educational opportunities.
#4 – Child Custody/Parenting Time and Decision Making
Parents’ separation agreements should outline decision-making responsibilities and parenting time for children (terms that replaced “child custody” in 2021). Decision-making responsibilities cover important areas like healthcare and discipline. The agreement should specify whether parents will make these decisions jointly or independently. Parenting time addresses when each parent has physical care of a child. This can range from alternating weeks to weekends and weekdays with different parents.
The agreement should also account for holidays and special occasions, detailing how parents will share or alternate custody during these times. And since family circumstances can change, it’s best to include a method for revisiting and revising the agreement.
#5 – Other Matters As Necessary
The law also specifies that separation agreements must address any other matters that are necessary to settle the couple’s affairs.
Couples may also decide on specific arrangements for the care of family pets, setting guidelines on who gets the pet and/or how they will share expenses.
There are many resources online for parents. One of the best is the AFCC-Ont Parenting Plan Guide that includes explanations and a large body of precedents.
Discuss Your Case with an Attentive Family Law Professional
The decisions you make in your separation agreement will have long-lasting implications for your future. To make sure you’re covering all your bases and either following Ontario law or deviating from it in a permissible manner, you should seek dependable legal advice.