What is a separation agreement ?

A separation agreement is a legally binding contract created between two spouses, at the time of their separation. This contract sets out each party’s rights on issues such as: child custody/access, property, debts and child / spousal support. The law leaves the decision about having a written agreement up to each individual couple. However, it is always strongly recommended as it can be very hard to prove any verbal agreements made by a couple, in a court of law.

Ideally, it is best to have separation agreements drafted by a lawyer. It is not a rule that separation agreements must be drafted by a lawyer, and couples are entitled to draft their own agreements. Should you choose to create your own separation agreement it is important to check all your provincial requirements so that you know how to successfully write an agreement that will be binding and enforceable by the courts. It can be very difficult and costly to fight for unclear written agreements in court, should one spouse stop respecting the terms of your arrangement.

Drafting your Separation Agreement

There are many issues that need to be considered when creating a separation agreement. Separation agreements are treated seriously by the courts and any terms that are clearly unreasonable will not be accepted. It is important to note that judges will not usually change any property divisions or spousal support terms agreed to in writing, even if it is something they wouldn’t have set themselves. Due to this, it is important that you are fully educated about all your legal rights and are completely comfortable and confident before signing a separation agreement.

In the event that you and your spouse cannot agree on some or all of the items in a separation agreement, you can contact a mediator or retain separate lawyers in order to help you resolve your differences.

Important items needed in a Canadian separation agreement:

1. Full Legal name of each spouse
2. Date of separation
3. Issues surrounding Children:
   • Who will they live with?
   • Who will have custody?
   • Who will have access, and how will access be determined?
   • How much child support will be paid?
   • When will child support end?
4. Spousal support:
   • Will spousal support be paid. If so, how much, when and for how long?
   • If support is waived, is it waived forever?
5. Property division:
   •  A clear list dividing who is to get which items and when.
   • If you own a house you need to outline:
     • Will be sold?
     • Who is responsible for it until it is sold?
     • Who will live in it until it is sold?
     • How proceeds from the sale will be divided?
6. Debts:
   • Who will be responsible for which debts?
   • How debts incurred after separation, but before divorce will be handled.
7. Pensions, RRSPs, RESPs, etc:
   •  Will you split your pensions and/or RRSPs?
   • If you have RESPs, who will be entitled to permitted transfers?

Signing a separation agreement is a very important step. It is important to remember that the decisions that you make in this document will affect you, and your children’s lives and future. A separation agreement is a binding contract that you must honour and quite often it is used as the basis for your actual divorce. It is always best to have separation agreements created by a lawyer, or at least reviewed by one before it is signed. Always ensure you carefully consider everything on the agreement before agreeing to it, and then signing.