When a relationship ends, clarity in a separation agreement matters. A well-drafted separation agreement can reduce conflict, provide certainty, and protect both parties moving forward. A separation agreement is a legally binding contract between spouses that sets out how key issues will be resolved post-separation.
According to the Family Law Act, spouses are permitted to enter into domestic contracts, including separation agreements, to settle their matters as an alternative to litigation. It is important to note, however, that for an agreement to be upheld in court, it must be comprehensive, transparent, and properly executed.
Below are the essential provisions that should be included in most separation agreements.
Parenting Arrangements
If you have children, parenting terms are often considered the most important terms in your agreement. The agreement should clearly reflect a child-focused approach wherein parenting time and decision-making responsibility will be clearly laid out. This includes details regarding parenting time and exchanges as well as specifics about holiday and summer schedules. It is important to be clear about when each party’s parenting responsibilities begin and end.
Child Support
Child support is typically calculated based on income and parenting time and in accordance with the Child Support Guidelines. Details including how much each party should pay, when they should pay, and how the money will be transferred should be included. Further, if there are any ‘special’ or ‘extraordinary’ expenses beyond the table child support amount, such as expensive extracurriculars, private school, or out-of-pocket medical/dental expenses, each parent’s financial responsibilities regarding same should be specified.
Spousal Support
Courts often consider the Spousal Support Advisory Guidelines to determine spousal support; however, these guidelines are not legislation.A separation agreement should be clear in whether spousal support is being waived or if there should be any spousal support paid from one spouse to another. A clear agreement will include provisions that are specific about the amount and duration of spousal support and what circumstances would include a review or a termination of support. Whether the agreement is intended to be a full and final settlement of spousal support is highly important to indicate.
Property Division
For married spouses, property division is governed by the equalization regime under the Family Law Act. A strong separation agreement should address how the net family property will be divided between the parties, how the payment will be made, and when the payment will be made. Any pensions or business interest had by each of the parties should be considered. There should also be a clear agreement as to how any debts had by the parties should be divided.
The Matrimonial Home
The matrimonial home receives special treatment under the law in comparison to other property. Even if only one spouse is on title of the matrimonial home, both spouses are entitled to have equal possessory rights if they are married. This is why it is ever so important that your agreement clearly outlines who will remain in the home, whether and when the home will be sold, and how the proceeds should be divided.
Insurance and Security
In the event that a spouse passes away before the end of their support obligation, life insurance and other security clauses are intended is to ensure that, even in the event of a payor’s death, funds are available to meet ongoing child/spousal support obligations, thereby protecting the children/spouse from financial disruption.
Enforcement and Dispute Resolution
A strong separation agreement is able to contemplate and anticipate future disagreements. It is important to have clauses present in your separation agreement that provide a roadmap on how these disagreements can be resolved. For example, adding mediation/arbitration clauses for specific issues can effectively outline the immediate next steps in effectively navigating future disputes.
Final Thoughts
Drafting a strong, carefully thought-out separation agreement ensures that both parties legal rights are protected and that they have a clear resolution to their matter. The intention is that the more potential future disputes are contemplated and outlined with plans for solutions, the less conflict will arise between the parties. This leaves the parties to have freedom from one another and clear expectations about how they can arrange their lives post-separation. An experienced family law lawyer could be the essential difference in ensuring the separation agreement you sign is a well-drafted one.
Attention Legal Counsel: Professional Mediation Services
When your clients have reached an impasse in settlement discussions, Andrew Feldstein offers third-party mediation services specifically designed for cases where both parties have independent legal representation.
Why lawyers refer cases to Andrew:
- 30+ years family law litigation experience providing courtroom-informed reality testing
- Expertise in complex financial matters including business valuations and professional corporations
- Efficient, structured process that respects counsel's time and maintains client relationships
- Flexible scheduling including virtual mediation and travel to counsel offices
Cases we handle: Negotiation stalemates, complex asset division, support calculation disputes, parenting arrangements, multi-jurisdictional matters, and post-separation modifications.
Refer your next mediation: Call Andrew directly at 905-415-1635 ext. 255 or email info@separation.ca. Virtual and in-person sessions available throughout the GTA.