Very few people begin an intimate relationship expecting to eventually separate in the future. That’s why when spouses and common-law partners do separate, there are often many unanswered legal issues that need to be resolved.
In Ontario, the laws that govern separation, and many other aspects of family law, can be found in a piece of legislation called the Family Law Act. However, going to Court regarding a dispute under the Family Law Act can be a frustrating and miserable experience for everyone involved.
Couples who separate may wish to consider creating a Separation Agreement to avoid getting caught up in a long and expensive legal battle in family court. A separation agreement is a type of “domestic contract”.
Before understanding how separation agreements work in Ontario, it is important to have a clear understanding of how separation is legally defined and when it occurs.
What is separation?
Many people who are going through the process of separating from their spouse or common-law partner mistakenly assume that formal steps must be taken for a legally recognized separation to be valid, like signing a contract or going to Court.
In fact, separation legally occurs when you demonstrate that want to live separate and apart from your partner. This means that you have decided that you want to end your marriage or common-law relationship, and that you have started to behave in a way that shows you want to end the relationship. Only one of you has to want this for you to legally separate.
What is the date of separation?
Determining an exact date of separation can be complex. For most couples, the most convenient method of determining a separation date is the day that you ceased cohabiting with your partner with no reasonable expectation of cohabiting together again.
That being said, couples can also be considered to be living separate and apart despite the fact that they are still living in the same household. If you’re married, then when it comes time to file for a divorce with the Court, a Judge may look back into your relationship to determine when there was an absence of sexual relations, joint social activities, change in meal patterns, change in performance of household tasks, and other factors. These are all factors that are considered in determining when separation actually occurred.
What is a separation agreement?
Although you are not required to have a separation agreement, it can be advantageous to have one. Such agreements resolve issues that you and your partner can agree on, and helps narrows possible disputes during any future proceedings in Court. Your separation agreement can resolve issues about spousal support, as well as other issues such as child support, custody of any children, access to any children, planning the educational and moral development of a child, and dividing property.
However, it’s important to keep in mind that a Judge has the power to disregard any part of a separation agreement (or other domestic contract) that deals with a child if to do so is in the best interests of the child, including if the agreed upon child support is not reasonable compared to the government’s child support guidelines.
What cannot be enforced in an agreement?
There are also other types of clauses in domestic contracts that the law does not enforce. Let’s say you wanted to impose a condition or limit on a particular right that your partner has in a separation agreement or other domestic contract. There are certain conditions that can’t be imposed. However, before we talk about the type of conditions that can’t be imposed on a right, let’s use a simple example to explain what we mean by the phrase “condition imposed on a right”. Let’s say you have a gym membership, and your gym rewarded you for exercising by giving you a free month of service, provided that you exercised at their gym at least 10 times in a month. In this example, you have a right to one free month of service, but the condition on that right is that you exercise at least 10 times in one month at their gym. If you don’t meet the condition, then you don’t get your free month of service.
Similarly, in a domestic contract or separation agreement, let’s say you wanted to impose a condition that required your partner to remain chaste. Such a condition would not be enforceable, because the Family Law Act prohibits conditions regarding chastity, except where such a restriction is a requirement for continued marriage or continued cohabitation.
Another example of an unenforceable clause in a separation agreement are clauses that create barriers to remarriage. An example of a barrier to remarriage is the practice of some religions that prohibit women from obtaining a spiritual or religious divorce from her husband without his permission. Any clause in a separation agreement that creates such a barrier would be void and unenforceable. In fact, the Court has the power to force a person to provide a spiritual or religious divorce to their spouse to protect that spouse’s right to be free from barriers to remarriage.
It is not necessary to wait until you reach an agreement on every single issue before making a separation agreement. You can sign an agreement about the issues upon which you agree and leave the rest for later.
You can also enter into a separation agreement regardless of whether you’re married or in a common-law relationship.
It is very important to understand that the law mandates certain rights and responsibilities upon you and your partner, and you should never sign a separation agreement without first speaking to a lawyer.
In fact, obtaining independent legal advice from a lawyer is one of the key requirements to ensure that your separation agreement is valid and enforceable in the future. There are also other circumstances that might affect the entire validity of your separation agreement. For example, the separation agreement might not be enforceable if one of you failed to disclose significant assets, or significant debts, or other liabilities, which existed when you entered into the separation agreement.
Another reason why a separation agreement may not be enforceable is if it was signed under duress. In situations of emotional or physical abuse, it is not uncommon for the abuser to command a significant degree of control over their partner. In such circumstances, a Judge will most likely declare the agreement to be void and unenforceable.
If your partner earns significantly more money than you do, and you are earning a very modest income, it is unrealistic and legally unacceptable for your partner to demand that you split the bills on a 50/50 basis.
What is spousal support?
In fact, upon separation, in most cases, the law prescribes that money must be paid by the partner who earns more to the partner who earns less. This money is called “spousal support”. Spousal support applies to partners who are married and to partners in a common-law relationship. Spousal support obligations also apply to same-sex couples. The person who receives spousal support is called the support recipient. The person who pays support is called the support payor.
It’s important to keep in mind that spousal support is not an automatic right. Even for those persons who are entitled to spousal support, there is a legal expectation upon you to apply your best efforts to support yourself after separation.
If you believe that your partner is delaying the finalization of the separation agreement to avoid paying support payments or you do not trust that your partner will honour his or her support obligations, then you may be better off speaking to a lawyer rather than trying to resolve the issues yourself.
A lawyer can obtain an Order from a Judge compelling your partner to meet his or her support obligations. Such an order can then be enforced through the Family Responsibility Office.
However, it’s important to keep in mind that there are time limits to taking certain action in Court. For example, you will most likely lose your right to go to Court to divide your net family property when the earliest of any of the following milestones happens:
(a) two years after the day the marriage is terminated by divorce or judgment of nullity;
(b) six years after the day the spouses separate and there is no reasonable prospect that they will resume cohabitation; or
(c) six months after the first spouse’s death.
Please note that this article is not intended as legal advice, and you should always speak to a qualified family lawyer in Ontario about your own unique situation.