Separation Agreement Template Ontario: What a Valid One Needs

Searching for a separation agreement template is a natural first step, especially when you and your former partner already agree on most things. A template can show you the general layout of an agreement and the topics people usually cover.

What a template cannot do is make the agreement valid or suited to your family. This article explains what Ontario law requires and where generic wording tends to fall short.

What makes a separation agreement valid in Ontario

A separation agreement is a type of domestic contract made under section 54 of the Family Law Act. Two people who lived together and are now living separate and apart may make one, whether they were married or not. Sections 54 to 56 set out the basic requirements for a court to recognize and enforce it.

The key formal rule is that a domestic contract is unenforceable unless it is in writing, signed by the parties and witnessed. A court will relax the witness requirement only in limited circumstances, so a missing witness is a real risk. For a child support agreement, Ontario guidance says both parents or caregivers must sign in front of a witness.

Topics a complete agreement usually covers

There is no single required list, but most agreements deal with the following. Each one has its own rules that a generic clause may not reflect.

Children's expenses are a good example. Under the Federal Child Support Guidelines, which apply in divorce cases, special or extraordinary expenses can include child care, health costs above insurance reimbursement of at least $100 annually, and post-secondary education, and they are shared in proportion to each spouse's income. If you are not divorcing, Ontario's own child support guidelines apply, so how this works for you depends on your situation. A template that simply says each parent pays half may not match the rules that apply to you.

Where generic templates fall short

• Disclosure: a court may set aside an agreement where a party failed to disclose significant assets or debts that existed when it was made. A template has no way to make sure both of you have shared full information.
• Understanding: a court may also set aside an agreement where a party did not understand its nature or consequences. Ontario guidance says each person should understand the terms and not be pressured to sign.
• Shared parenting: under the Federal Child Support Guidelines, which apply in divorce cases, where each parent has at least 40% of parenting time over a year, child support is decided by looking at both table amounts and the increased costs of shared parenting. Ontario's guidelines govern other cases, so confirm which apply to you. Basic templates often assume one payor.
• Pensions: to transfer a share of an Ontario pension, the application needs a certified copy of the agreement stating the family law valuation date, the entitlement and the amount to be transferred. Vague wording can cause problems later.
• Waivers: a court may set aside a spousal support waiver in some situations, even if the contract says otherwise.

Terms a court can still override

Even a well-signed agreement does not have the final word on children. A court may disregard a provision about education, moral training, decision-making responsibility or parenting time if that is in the child's best interests. It may also disregard a child support provision that is unreasonable having regard to the child support guidelines.

Where the agreement is later made part of an order, a court must not incorporate a child support agreement unless it is satisfied the agreement is reasonable, having regard to the guidelines. A template that sets support without reference to the guidelines can cause trouble here.

What to do next

Use a template, if you wish, as a checklist of topics rather than as a finished document. Ontario guidance says you do not need a lawyer to make a separation agreement, but legal advice before signing is a good idea. Each spouse should have their own lawyer review a property agreement, because it cannot easily be changed later.

• Exchange financial information, including income, expenses, assets and debts.
• Decide on each topic above and record the reasons for your choices.
• Have each of you get separate legal advice before signing.
• Sign in front of a witness, and keep the original in a safe place.
• If you need support enforced by the Family Responsibility Office, ask how to file the agreement and register it, since the steps depend on current court procedure.

Frequently asked questions