One Lawyer for Both Spouses? Separation Agreements in Ontario

When money is tight, it is natural to ask whether one lawyer can handle the paperwork for both of you, or whether only one of you needs a lawyer at all. Both questions come up often, and the honest answer is that each has real risks.

This article explains what Ontario guidance says about legal advice, how joint retainers work, and what choices exist if cost is the concern.

Do you need a lawyer at all?

Ontario guidance says you do not need a lawyer to make a separation agreement, but legal advice before signing is a good idea because it can be difficult to get a court to set an agreement aside.

Writing, signing and witnessing are the basic formal requirements, and a court can also set an agreement aside on other grounds, which are described below. A domestic contract is unenforceable unless it is in writing, signed by the parties and witnessed. Nothing in that rule requires a lawyer, but a template that is not properly signed and witnessed cannot be enforced.

Can one lawyer act for both of you?

Before a lawyer acts for more than one client, the Law Society of Ontario's rules require the lawyer to tell each client that the lawyer has been asked to act for all of them, that information received cannot be kept confidential from the others, and that the lawyer may have to withdraw from acting for everyone if a conflict develops that cannot be resolved. Ontario guidance recommends that separating spouses each have their own lawyer.

The practical problem is that your interests on support, property and parenting are often opposed. One lawyer cannot press for the best outcome for each of you at once. If a disagreement surfaces halfway through, you could both lose the lawyer and have to start again.

• Anything you tell the lawyer may be shared with your spouse.
• The lawyer may have to stop acting for both of you if a conflict cannot be resolved.
• Ontario guidance recommends separate lawyers.

What if only one of you has a lawyer?

This is allowed, but the unrepresented person carries the risk. Ontario guidance says each person should understand the terms and not be pressured to sign, and that if those conditions are not met the agreement can be challenged in court.

A court may set aside a domestic contract or a provision in it where a party did not understand its nature or consequences, or where a party failed to disclose significant assets or debts. Even then, the Court of Appeal for Ontario applies a two-stage test: one of the listed circumstances must be engaged, and the court then decides whether it is appropriate to use its discretion to set aside the agreement, with fairness a relevant consideration.

So the safest course for the person without a lawyer is to at least get legal advice on the draft before signing. For the person with a lawyer, an agreement the other side did not understand may be less secure.

Lower-cost options that still protect you

In family mediation, a neutral mediator helps you negotiate your own agreement. The mediator does not make decisions, take sides or give legal advice, so to make a mediated agreement legally binding each party should get advice from a different lawyer before signing.

Court-connected mediation is provided by service providers under contract with the Ministry of the Attorney General. On-site mediation is free on the day the matter is scheduled in court, and off-site fees may be charged on a scale based on income and number of dependants. Availability varies by courthouse and provider. Mediators screen for domestic violence at intake and throughout.

What to do next

• Decide whether you and your spouse can negotiate openly, or whether a mediator would help.
• Make sure financial disclosure is complete, because the Court of Appeal for Ontario has said it is a paramount consideration and that the spouse who holds the assets is responsible for disclosing and valuing them.
• Have your own lawyer review the draft before signing, even if you negotiated the terms yourselves, because Ontario guidance says each spouse should have their own lawyer.
• Take the time you need; do not sign under pressure.
• Sign in front of a witness so the agreement is enforceable.

If child or spousal support is involved, ask a lawyer how filing and enforcement would work for your agreement.

Frequently asked questions