Your Guide to the Separation Agreement in Ontario

If you’re going through a separation in Ontario, a Separation Agreement can offer clarity and predictability during a turbulent time. It can also help you avoid costly court battles — while protecting your finances, assets, and parenting arrangements. 

A Separation Agreement is a critical legal document that can have a considerable impact on your future. Here, we’ll dive into what a Separation Agreement is, how to create one, and why drafting one is a good idea. 

What is a Separation Agreement in Ontario?

A Separation Agreement is a legally binding contract that outlines how you and your former partner will navigate life after separation. In Ontario, it details the rights and obligations of each spouse after they separate.

Used by both married and common-law couples, a Separation Agreement enables individuals to get their affairs in order outside of court. The document summarizes how you plan to divide assets, debts, and child custody matters. It enables two people to agree on how to navigate:

• The division of your property
• Child and spousal support obligations
• Children’s educational and moral teachings
• Parenting time and decision-making responsibilities regarding your children
• Other matters in the settlement of your affairs
  • Including pensions, insurance, RESPs, RRSPs, and more

When is a Couple Legally Separated in Ontario?

In Ontario, you are considered legally separated once you and your former spouse are living “separate and apart”. Each party must either live at their own place or live separate lives while living under the same roof. To determine whether a couple is living separate and apart while living under one roof, the law looks at whether the couple:

• Shares a bedroom
• Prepares and eats meals together
• Attend social events as a couple
• Shares chores
• Coordinates and discusses schedules to fit each other in
• Keep finances separate where possible

Separation vs Divorce

Separation and divorce are often used synonymously — but for legal purposes, they refer to two different situations. A separation can be temporary, while a divorce is final. 

Separation takes place when a married or common-law couple decides to live apart. If you’re in a common-law relationship, separation ends your legal relationship. If you’re married, living apart (or separating) doesn’t end your marriage. To end your marriage, you must go to court and have a judge officially grant you a divorce.

Creating a Separation Agreement in Ontario

Typically, a Separation Agreement in Ontario includes some personal information about each party and an overview of their relationship. It notes the date you and your former spouse got married or began your relationship and whether you have children. 

The Separation Agreement must be made in writing, signed by both parties, and witnessed by two individuals. The witnesses can be people you know, but it’s best to have an authorized individual, like a notary public at the signing. Below are some key pieces of information you’ll want to include in your Separation Agreement.

Address Spousal Affairs

Conflict Resolution: Specify how you plan to resolve future conflicts if you cannot agree on certain issues. You’ll want to name a specific mediator or arbitrator who you can turn to in case of a dispute.

Spousal Support: You should specify whether one spouse will pay the other spousal support. If so, include the spousal support amount, the start date of payments, and the payment duration in the agreement. You should also note which circumstances would lead to the termination or change of support payments.

Life Insurance: Parties may wish to specify whether their spouse will remain a beneficiary on their life insurance plan. Sometimes, each partner keeps the other or the children as beneficiaries.

Pensions, RRSPs, and RESPs: If either spouse has a pension or other savings plan, outline these will be dealt with.

Outline Parenting and Child Care Arrangements

Decision-Making Responsibility: Previously known as custody, decision-making responsibility involves making major decisions regarding how to raise and care for children. These decisions include matters related to health care, education, and religion or spirituality. Noting who should make these types of decisions adds clarity to the arrangement.

Parenting Time: Formerly known as access, parenting time is the right to visit, or be visited by your children. It also includes the right to receive information about your child’s health, well-being, and education. Both parties should agree on parenting time and what the access schedule will look like. It’s best to be specific, outlining how much time children will spend with each parent and when. Be sure to account for holidays and vacations.

Parenting Plan Information: It’s a good idea to outline the details of a parenting plan. For example, which extracurricular activities the children will participate in, where they’ll go to school, whether and where they’ll attend camp, and more. Parents will also want to specify what would happen if one parent decided to relocate, and how this would impact the parenting schedule.

Medical Benefits: Note whether a child remains on one or both spouse’s health and dental plans for a set period. You should also specify how a child’s uncovered medical and dental costs will be divided.

Child Support: If you’ve aligned on a basic amount for child support, this information should be included in the Separation Agreement. You can use the Child Support Table Look-Up to get started. Parties should indicate when child support payments will end, and which changes in circumstances would lead to a change in payments.

*A judge may refuse to grant a divorce if they do not feel adequate child support arrangements have been made. A Separation Agreement can be used to prove child support arrangements to a judge in the divorce process. 

Child Expenses: You will want to outline any extraordinary expenses for children and how they’ll be paid for. These expenses may include private school, special needs programs, costly extracurricular activities, therapy, and more. Future post-secondary education expenses can also be included, as courts view post-secondary education as worthy of support. 

Detail the Division of Assets and Debts

Property and Asset Division: The agreement should outline how family assets and property are divided, and how equalization payments will be made. This includes whether payments are made as one lump sum or in installments, and when. 

Possession of the Matrimonial Home: This is the house a married couple lives in at the time of their separation. The agreement should state whether one party will continue to live in it.  If one spouse plans to remain in the home or buy the other out, the agreement should outline the details of that arrangement.

Sale of the Matrimonial Home: If the home is being sold, it’s important to include details about how you will agree on a realtor, lawyer, and price. Also, mention how the profits of the sale will be divided.

Debts: If you and your ex have debts, the agreement should detail how they will be divided between you. It should also include payment schedules and duration.

If your case is complex, it’s best to seek the advice of a family lawyer before creating a Separation Agreement. The terms you agree to can have significant financial consequences and a strong impact on your parental rights and responsibilities.

Additionally, both parties must provide accurate and complete financial information. Providing an inaccurate financial disclosure is illegal in Ontario and can lead to penalties and fines.

When Do You Need a Separation Agreement in Ontario?

A Separation Agreement enables both parties to understand their rights and obligations after separation. It minimizes confusion and can protect any assets accumulated throughout the relationship. However, this agreement can come in handy in other situations as well, including:

Separation Agreement for Mortgage Approvals and Loans

If you are divorced, most lenders want to see a Separation Agreement before they approve you for a loan. They will want to verify which assets remain with you once your divorce is finalized. They’ll also require details on support payments you’ll be making or receiving, as they may affect your ability to make payments.

Separation Agreement to Prove Child Support Arrangements for Divorce

A judge may refuse to grant a divorce if they don’t believe that adequate child support arrangements have been made. A Separation Agreement can serve as concrete proof of child support arrangements, removing a potential roadblock in the divorce process. 

Separation Agreement for the Title Transfer of the Matrimonial Home

A Separation Agreement is recommended when selling the matrimonial home or for its title transfer. A real estate lawyer will likely require a Separation Agreement to verify how the proceeds of the sale should be divided. If the matrimonial home is sold without a Separation Agreement, the proceeds are placed in trust. They are only released once a formal agreement or court order can demonstrate how the proceeds should be divided. 

*There is a time limit on when you can divide property. If you are separated, you have 6 years from the date of separation; if you are divorced, you only have two years from the date of divorce.

Does a Separation Agreement Need to be Notarized in Ontario?

To be valid, a Separation Agreement must be made in writing, signed by both parties, and witnessed by two people over 18. The law in Ontario does not require your witnesses to be authorized officials, like lawyers or notary publics.

However, it is strongly recommended to have your agreement notarized by a notary public or other official. Notarization offers stronger evidence to establish your agreement’s validity and authenticity. Thereby, it reduces the chances of your agreement’s legitimacy being questioned in case of future disagreements.

Further, notarization is a good idea if you plan to use your Separation Agreement internationally. Notarization may be a requirement in jurisdictions beyond Canadian borders. This would apply if you plan to use your agreement for immigration international travel.

Start Your Separation Agreement Today!

Creating a Separation Agreement is a critical step in navigating a separation from your former spouse. It enables you to gain a sense of clarity and peace of mind during a turbulent and often confusing time. A Separation Agreement is also more confidential, less stressful, and more cost-effective than attending court.

NotaryPro makes the process of drafting a Separation Agreement as simple as possible. We offer an intuitive, fillable Ontario Separation Agreement template you can download and use for free. 

If you already have a Separation Agreement and plan to get it notarized, consider NotaryPro’s convenient, online notary option. You can meet with a notary public from the comfort of your home or office, and have it notarized in 7 minutes. 

Get started by booking an online notarization appointment today!