What Should Be in a Separation Agreement in Saskatchewan?

A written separation agreement lets you and your spouse decide the big questions yourselves instead of leaving them to a judge. It works best when it is specific, complete and based on accurate financial information.

This article is a checklist of what to think about under Saskatchewan law. Every family is different, so treat it as a starting point and have a lawyer review your draft.

This article covers the law of Saskatchewan.

Why put it in writing

An agreement gives you certainty and a record of what each of you intended. If you later divorce, agreements about separation, support, property or parenting are not treated as collusion. Courts also take agreements into account: spousal support considerations include any agreements between spouses, and a written agreement is one factor in deciding whether an equal property division would be unfair.

If you disagree on points, the law encourages you to try to resolve matters through a family dispute resolution process where appropriate. Since July 1, 2022, family law matters coming to court in Saskatchewan are required to attempt a family dispute resolution process by the close of pleadings, although a person can apply to the court for an exemption where there has been interpersonal violence, the other parent has abducted a child, or there is other urgency. A negotiated agreement may spare you that court path.

Parenting terms

Use current vocabulary. Decision-making responsibility means responsibility for significant decisions about a child's well-being, including health, education, culture, language, religion and spirituality, and significant extra-curricular activities. Parenting time is the time a child spends in a person's care, whether or not the child is physically with that person the whole time.

• Who makes which significant decisions, or whether you share them.
• The regular parenting-time schedule, including holidays and school breaks.
• How you will handle a move by either parent; where there is a parenting order under the Divorce Act, relocation of a child is deemed to be a change in the child's circumstances, although a relocation a court has prohibited does not by itself count.
• How you will resolve disagreements before going to court.
• Any supervision terms, which a court may order in situations such as substance misuse or abduction risk.

Parents who have not fully agreed on parenting must complete a parenting course. Saskatchewan's Parenting After Separation Program has two online courses, one standard and one for high-conflict families.

Child support and spousal support

Child support orders must follow the applicable guidelines, including interim orders. The presumptive amount is the table amount for the paying spouse's province plus any special or extraordinary expenses. Income starts from the Total income line of the T1 General tax form, adjusted under Schedule III, and a court can look at the last three years or impute income in some cases.

Where each parent has at least 40% of parenting time, the amount is not simply the table figure; it is set using each parent's table and the increased costs of shared care. Above $150,000 of payor income, and in cases of undue hardship, a court may depart from the table. Child care, health and education costs are shared in proportion to incomes.

Spousal support can be lump-sum or periodic. A court considers each spouse's condition, means, needs and circumstances, the length of cohabitation, the roles each performed, and any agreements, with objectives such as recognizing economic advantage or disadvantage, relieving hardship and promoting self-sufficiency where practicable. Your agreement should state the amount, the duration, how it is paid and what events change it.

Property, the family home and debts

The Family Property Act applies to married spouses and to unmarried spouses who cohabited continuously for two years or more. Family property is distributed equally unless a court finds that unfair and inequitable. The family home has a stricter test for an unequal split.

Some property is exempt, including property owned before the relationship, gifts from third parties and inheritances, but the exemption does not cover the family home or household goods, and a court can override it where exempting would be unfair. For unmarried partners, property acquired more than 24 months after cohabitation ended is also exempt.

• A full list of assets and their values at separation.
• Who keeps or buys out the family home, and by when.
• Household goods, vehicles and accounts.
• Each debt and who is responsible for it.
• Pensions and retirement savings, and how each of you wants them handled; how this applies depends on your situation, so it is worth confirming with a lawyer.
• Any exempt property each of you claims.

What to do next

Gather tax returns, pay records, statements and property documents so both sides work from the same numbers. Draft the agreement in plain terms, check it against the points above, and have a lawyer review it before signing. Your will may also need attention: on divorce, a gift to a former spouse and their appointment as executor are revoked unless the will says otherwise.

Frequently asked questions