Separation Agreements

Today, we'll explain why a separation agreement is required or highly recommended before a divorce is obtained.

Hi, my name is Shilpa Mehta and I am a lawyer with the Feldstein Family Law Group.

In my practice, I am encountering more and more situations where a client meets with me and requests to retain my services for the sole purpose of obtaining a divorce. These clients often question why they require a separation agreement when they have mutually agreed to the terms of settlement and have been practicing their verbal agreement since separation. In today’s blog, I will discuss with you why a separation agreement may be required or is highly suggested before a divorce is obtained. In short strokes, a separation agreement does the “heavy lifting” before a Divorce Order is applied for and granted. But a separation agreement and a Divorce Order are not interchangeable terms.

In situations where children are involved, family law provides a judge with the discretion to stay a divorce or to hold off granting the divorce until he or she is satisfied that proper provisions have been made for the care and support of a child or children. Canadian courts focus on the practicalities of a separating couple. This means that judges want to know for sure that issues such as custody of and access to children is agreed upon, and that child support and spousal support, if any, is agreed upon. Absent of a comprehensive agreement being in place, it may be difficult to provide a court with the required assurances regarding the children that would allow parties to proceed with the divorce.

Further, even where a divorce has been granted, parties do not lose their rights to seek an equalization of their respective net family property as of the date of separation. Section 7(3) of the Family Law Act sets out limitation periods that apply to equalization claims. The Act allows for either party, the husband or the wife, to pursue a claim for equalization up to two years after the date of the divorce.

The limitation period for starting a spousal support claim varies across provinces in Canada. The federal Divorce Act sets no time limit on when a spousal support claim can be started. This approach is followed in Alberta, Saskatchewan, Manitoba, Ontario and Nova Scotia. Therefore, while a claim for spousal support may be prejudiced by the passage of time, the granting of a divorce does not prevent spouses from later pursuing this claim as well.

As you can see, a divorce does not eliminate the possibility of either party pursuing other claims arising from their separation. For the sake of finality, it is always suggested that the parties enter into a comprehensive separation agreement.

If you would like more information on separation agreements for common law or married couples, please visit our website. If you would like to schedule a consultation to speak with one of our lawyers about your family matter, please call us at: (905) 581-7222.

Thanks for watching!

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