In Ontario, if you and your former spouse or partner agree on what happens when you separate, you can write down these agreed-upon terms in a document. The document is called a separation agreement.
A separation agreement ensures that you are both, well, in agreement when it comes to the care of children, financial support and how to divide your accounts or other property when you separate.
The separation agreement is a contract just like any other contract. Once it has been signed by the partners and witnessed, it becomes an “enforceable” or “legally binding” contract.
A verbal agreement is just that, a verbal agreement and is very difficult to enforce if any problems should arise between you and your former partner.
Can I write my own Separation Agreement?
Short answer: Yes.
Long answer: But …
In Ontario, spouses and partners can write their own agreements. But there are risks. People can also sell their homes without the help of a real estate agent and they can defend themselves in court without a lawyer. These all have legal consequences. It is important to understand your rights, responsibilities and the law before signing. It is always advisable to have professional guidance to ensure that oversights do not come back to haunt you in the future.
Your separation agreement must follow certain rules such as honest financial exchange, fairness of process and full understanding of its terms for it to be enforceable. If these rules have not been followed, and there is an issue in the future, a judge can decide to enforce part or none of your separation agreement.
Is the Separation Agreement reached in mediation “binding”?
Short answer: Yes.
“Agreements reached at mediation are legally binding.”
(Ontario Ministry of Attorney General).
We strongly advise that you skip the headaches of legal and financial nuances and avoid the risks of writing your own separation agreement by involving a professional.
Most families who enter mediation are committed to settling out of court, in a timely and cost-effective manner. Once engaged in mediation, you both begin working towards the separation agreement, with the help and guidance of a mediator. Your mediator will help you with the financial statements (which, at first glance, can look like a bit of a nightmare!), calculating child and/or spousal support, generating realistic and practical options, and developing a detailed parenting plan. In addition, a mediator will ensure that the process is fair and that there is no coercion. At the end of mediation, you get a Memorandum of Understanding (not a legally binding contract) which you, (remember the risks above) or a lawyer would have to take and create a separation agreement based on its terms. Some mediators (with legal background) will draft your separation agreement directly at the conclusion of mediation. It is important to ask in advance.
Mediators cannot provide legal advice, even if they are law professionals. It is always a good idea to get legal advice, sometimes called Independent Legal Advice (or ILA), before signing your agreement.
You will each get individual advice from two different lawyers on the strengths and weaknesses of your agreement. Ultimately, you choose what to do with the advice and decide whether you want to make changes or continue with signing your separation agreement as is.
It is important to know that if you choose not to get legal advice, you may not be able to use the argument later that you did not understand your rights or the terms of your agreement. That’s why there are professionals.
No separation agreement is bulletproof! Judges can enforce all, part or none of it. The best way to ensure your agreement will hold the test of time is to be adequately informed and work collaboratively with your former partner and a mediator from the onset of your separation.
You don’t have to get along or even like each other. You do, however, need to remind yourselves that you are preserving control over the decisions made for your family and not turning them over to the hands of lawyers and judges.
In the end, the time and money you save by mediating and avoiding litigation can be re-invested back into your family and into your new chapter.