Separation Agreement

What is a Separation Agreement?

A Separation Agreement is a contract between two spouses when there is a breakdown in their relationship. Separation Agreements are typically entered into if the spouses are married and begin living separately and apart due to a breakdown in the relationship. However, if common-law spouses have had a child together or have property they own together, they may choose to enter into a Separation Agreement.

Is it mandatory to have a Separation Agreement?

No. Having a separation agreement isn't mandatory, but it's a useful agreement that allows the separating spouses to agree on important matters, including:

• support payments: these are payments from one spouse to another;
• parenting time: this the amount of time a parent spends with their child;
• custody: this is the ability to make decisions for a child;
• the division of property, and more.

A written agreement allows the spouses to enforce its terms in the event of non-compliance with what they agreed on. An oral agreement is substantially more difficult to enforce.

What should a Separation Agreement contain?

The Separation Agreement will cover the rights and obligations of the spouses, including:

• Spousal support: these are payments made by the higher-earning spouse to the lower-earning spouse, taking into consideration age, earning capacity, standard of living, and more. The spouses may also agree to no support.
• Child support: these are payments made by the parent who is less frequently with the child to the other parent. The amount of child support must be based on the guidelines or must be reasonable having regard to the guidelines.
• Spouses may simply adopt the guidelines in the agreement as the quantum of child support.
• Child custody: this is also known as decision-making authority. The spouses can agree on which parent will make major decisions for the children or they can agree to be equally responsible in making decisions. Major decisions include education, religion, and more.

The division of property: the division of property refers to dividing the assets that the spouses have accumulated together.

What is not allowed in a Separation Agreement?

The spouses cannot agree on child support payments that undermine the legal guidelines. In other words, the child support payments must be reasonably consistent with the guidelines.

The agreement cannot contain any unfair or unconscionable clauses that significantly favor one spouse over another.

For example, an agreement where one spouse obtains most of the assets despite the fact that both spouses have equally financially contributed.

Who can enter into a Separation Agreement?

Only spouses in a relationship, either married or common law, may enter into a separation agreement. For married couples, one of the grounds for a divorce is separation for one-year. Therefore, a married couple may sign this agreement. Also, common law spouses who have a child together or have lived together for more than three years may enter into this agreement.

It's important to note that the signatories must be of the age of majority and not under a disability. The ages of majority are as follows:

• Alberta, Manitoba, Ontario, Prince Edward Island, Quebec, Saskatchewan: 18 years old.
• British Columbia, New Brunswick, Newfoundland and Labrador, Northwest Territories, Nova Scotia, Nunavut, Yukon: 19 years old.

What is the duration of a Separation Agreement?

For married couples, the law usually requires that spouses separate before they can file for divorce.

For married couples, the Separation Agreement can be a permanent or temporary contract. Usually, the agreement is permanent and survives the divorce, if any, so the spouses may continue enforcing it.

In other words, some spouses may agree that the contract only applies until the date of divorce; or they can agree that it survives the divorce. The purpose is to allow spouses to keep enforcing the contract after divorce. If the spouses weren't married, the agreement doesn't survive divorce.

What is necessary for a Separation Agreement to be valid?

A Separation Agreement is an amicable, more affordable solution than going to court. The agreement is only enforceable if the following requirements are met:

• each party signed the contract before a witness (a witness can be anyone who sees the spouse sign the contract);
• the agreement is reasonable (e.g. spousal support can't be significantly reduced from the legal requirement);
• the agreement must be willingly signed, and there can't be coercion (one spouse isn't forcing the other to sign);
• there must be financial disclosure by the spouses, including significant assets (each spouse must disclose their bank accounts and other property); and
• each party must understand the agreement.

What has to be done after a Separation Agreement is ready?

Once the separation agreement is ready, it must be signed, and the parties must start implementing its terms. This means either transferring property, paying the support obligations, and communicating about the children, if any. In some Provinces, the spouses may have the option of filing their Separation Agreement with the court. The benefit of which is it allows the court to enforce the agreement. This means the court will have the spouses' agreement on file and may be able to ensure that the clause requiring support payments is honored.

Each spouse must keep a copy of the signed agreement for their records.

Is it necessary to register a Separation Agreement?

No. Registering the separation agreement is not necessary, but the spouses may choose to file their Separation Agreement with the court. The benefit of which is it allows the court to enforce the agreement. To do this, the spouses will need to attend the family court branch of the courthouse in their jurisdiction. The spouses will also need to sign an affidavit stating that the contract remains in effect.

Is it necessary to have witnesses to a Separation Agreement?

Yes. A separation agreement requires witnesses in order to be valid. Each signing spouse should have an independent witness to their signature. In other words, there should be two witnesses, such as a lawyer, notary, or other adult. The witnesses must be of majority age and not under a disability. The ages of majority are as follows:

• Alberta, Manitoba, Ontario, Prince Edward Island, Quebec, Saskatchewan: 18 years old.
• British Columbia, New Brunswick, Newfoundland and Labrador, Northwest Territories, Nova Scotia, Nunavut, Yukon: 19 years old.

If the document is not witnessed, it can be found invalid. An invalid document means it cannot be enforced.

Which laws are applicable to a Separation Agreement?

Separation Agreements are a type of domestic contract, which is governed by the law of each Province and Territory. Additionally, if the spouses are getting divorced, the Canada Divorce Act (R.S.C., 1985, c. 3 (2nd Supp.)) applies. The pieces of provincial and territorial family legislation are the following:

• Ontario: Family Law Act, R.S.O. 1990, c. F.3
• Alberta: Family Law Act, SA 2003, c F-4.5
• Saskatchewan: The Family Property Act, SS 1997, c F-6.3
• Manitoba: The Family Law Act, CCSM c F20
• British Columbia: Family Law Act, SBC 2011, c 25
• Prince Edward Island: Family Law Act, RSPEI 1988, c F-2.1
• New Brunswick: Family Services Act, SNB 1980, c F-2.2 and the Marital Property Act, SNB 1980, c M-1.1
• Nova Scotia: Parenting and Support Act, RSNS 1989, c 160 and the Matrimonial Property Act, RSNS 1989, c 275
• Newfoundland and Labrador: Family Law Act, RSNL 1990, c F-2
• Yukon: Family Property and Support Act, RSY 2002, c 83
• Northwest Territories: Family Law Act, SNWT 1997, c 18
• Nunavut: Family Law Act, CSNu, c F-30

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