Getting a Divorce - Creating a Separation Agreement Ontario

There are many steps to follow when you are getting a divorce in Ontario. Chief among them is the process of coming up with a separation agreement.

Canada has a “No Fault” divorce system. In other words, a divorce application does not hinge on one of the spouses having committed some act of wrongdoing such as adultery or physical or mental cruelty.

What Is a Separation Agreement?

An uncontested divorce does not mean that there were no arguments, but rather that an agreement is reached to facilitate a simple divorce.

To save on legal costs and prevent conflict down the line, a separation agreement should be drawn up. As a legally binding document, your separation agreement allows both parties to elucidate decisions so that there are no disputes about what was decided.

How Does a Separation Agreement Fit into the Divorce Process?

When a marriage dissolves, but before a divorce order is issued, many couples live "separate and apart". After a year, the divorce can be granted.

The separation agreement is recommended during the separation period, and is also necessary proof of looking after the best interests of children - necessary before a divorce can proceed.

Identifying The Separate and Shared Property and Liabilities

In Ontario courts, any asset attained during a marriage that still exists at the time of separation must be divided equally when the marriage ends.

Among other things, family property includes:

• Real property such as homes and land
• Personal property such as art, collectables, and jewelry
• Vehicles
• Pensions, stocks and investments, ownership in a business, and intangible property for example patents and intellectual property.
• Exceptions include inheritances, gifts, personal injury payouts etc.

Part I of the Family Law Act directs the division of family property using a “deferred community-of property” system that automatically entitles each spouse equal share of the profits of the marriage. The amount owed to either spouse is referred to as an equalization payment,

The separation agreement sets out:

• Who gets what items when?
• Who will be liable for which debts and how you will handle debts made in the period between separation and divorce?
• Whether to divide your pensions and RRSPs and how to transfer RESPs.

Determining Who Will Live Where While the Agreement is Being Finalized

The matrimonial home is defined in Section 18(1) of the FLA as, “Every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home.”

Both parties have equal legal rights to the matrimonial home, even if it was owned by only one spouse prior to the date of marriage. Too often, is not financially possible to keep the house, so it will be sold.

Do You Need a Separation for a New Mortgage?

When assessing your application for a mortgage, almost all Canadian Banks require a separation agreement. Your eligibility is calculated taking into consideration your total debt – including any support payments as determined in your separation.

Child Custody, Parenting Time, and Child Support

As part of the changes to the Divorce Act, the terms “child custody” and “access” to their children were replaced with “right to decision making” and “parenting time”.

One of the most important elements of a separation agreement is a parenting plan. For the sake of the children, egos and marital issues need to be set aside, and decisions made about who will be in charge of their primary care. Guidelines for the decision-making process should be included in the agreement, along with who will have the final say if necessary.

Stipulated time and dates spent with each parent smooth the way for happy children post-divorce.

Depending on how many children are involved, the incomes, and also the province, child support is calculated accordingly.

Spousal Support

If spousal support is payable, your settlement agreement will clarify how much and for how long it will be paid, as well as the circumstances under which it may be terminated.

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