Frequently Asked Questions
Family Law in Ottawa
For more personalized guidance and assistance in a family law matter tailored to your situation, contact PBS Law today.
Separation Agreement FAQs
What is a separation agreement?
A separation agreement is a legally binding document that contains the terms of settlement reached by you and your ex. Often it addresses parenting, child support, property division, and spousal support.
Why would I want a separation agreement?
A separation agreement sets out the terms that you and your ex have agreed will govern going forward. Often a separation agreement will help you to manage your income and your assets and will set out how you will parent and financially support your children. Your bank might need you to have a separation agreement to purchase a new home, or to secure a mortgage.
Is a separation agreement the same as a divorce?
No. You need a divorce, which can only be granted by a judge, if you want to remarry. A separation agreement is a good idea whether you intend to remarry or not, because it can address the issues that a separating couple need to to sort: things like division of property, parenting, child support, and spousal support.
If my ex and I are in agreement, can we hire one lawyer to prepare our separation agreement?
If you and your ex are in agreement about all of the major terms of your separation agreement, you are likely to save time and money in papering the agreement. However, each party needs to understand what he or she is signing, and the way to ensure and establish that both parties have that understanding is to encourage each party to obtain independent legal advice.
Do I need a separation agreement?
While not always mandatory, a separation agreement can provide clarity and structure during a challenging time. It helps prevent conflict by setting clear expectations and addressing potential disputes upfront. A separation agreement can allow you to move forward with life with certainty and autonomy.
Can a separation agreement be modified?
Many separation agreements include a clause that will allow the parties to vary their separation agreement if both parties agree and the amendment is in writing, signed by both parties, and witnessed. Provisions relating to children can be amended by a court in accordance with the best interests of the children.
Do I need a lawyer to create a separation agreement?
While you can create a separation agreement without a lawyer, it is advisable to seek legal guidance. An experienced family lawyer will advise you about your rights and responsibilities, and help to ensure there are no unintended consequences arising from the terms of your separation agreement.
How long does it take to create a separation agreement?
The timeline varies on many things, including the complexity of the issues, the organization of the parties, the willingness of both parties to cooperate, and the emotional readiness of each party to conclude the issues arising out of their separation. We have a number of tools to make the process more efficient and streamlined. For example, using a collaborative process ensures that you talk respectfully and efficiently about the important issues, and that you do not get bogged down in needless conflict about things that do not matter.
Cohabitation Agreement/Marriage Contract FAQs
What is a marriage contract?
Often referred to as “pre-nup” or a domestic contract, a marriage contract or cohabitation agreement sets out terms that you and your partner agree should apply if your relationship ends. Lots of couples want specific things to happen with income, assets, and debts if a relationship ends. A domestic contract can ensure that the default law model does not defeat your plans and expectations.
When should we create a marriage contract?
Parties can sign a marriage contract at any time before or during their marriage. A party who gains certain rights by being married, however, may not have incentive to sign a marriage contract after the wedding. A marriage contract that is discussed, negotiated, and signed well in advance of the wedding is less likely to be overturned because somebody signed it while under duress.
Do we each need our own lawyer?
At PBS Law, we can only act for one party to a domestic contract. It doesn’t need to be expensive, but it is very important that both parties have the opportunity to have independent legal advice. This ensures that both parties fully understand the terms and implications of the contract, and that the contract will stand up if you ever need to rely upon it.
Will a marriage or domestic contract affect our relationship?
A well-crafted marriage contract is designed to enhance communication and understanding between partners. By openly discussing financial matters and expectations, you’re setting a strong foundation for a healthy and transparent relationship.
Why should we consider a marriage contract or cohabitation agreement?
The law in Ontario contains a set of rules that governs the division of property and the support of your partner on the breakdown of a relationship. That law may or may not be fair for your individual circumstances. You and your partner may choose to have a conversation, while things are going well, about each party’s expectations and responsibilities if the relationship ends, and to reduce that conversation to a marriage contract or cohabitation agreement that will apply if you separate or one of you passes away.
Is a marriage contract or cohabitation agreement only for wealthy couples?
No, a marriage contract and cohabitation agreement can be a valuable tool for any couple wishing to establish financial and legal clarity about what will happen if the relationship ends by separation or death.
Are marriage contracts and cohabitation agreements helpful for second marriages?
Yes, parties who have had previous relationships often have very clear ideas about the financial consequences they expect of their new relationship, and a domestic contract can be very helpful in clarifying everyone’s intentions and expectations, both for the couple, and for potential heirs who might benefit from or have to administer an estate on the death of one of the parties.
Do I need a divorce?
You can be separated from your spouse without ever obtaining a divorce. The only legal reason you need a divorce is to re-marry.
What does a court need to see in order to grant an uncontested divorce?
You usually need to be separated for a year before a divorce will be granted, and you will likely need to satisfy the judge reviewing your divorce application that you have made appropriate provision (for example, in a separation agreement) for the parenting and financial support of your children, having regard to the Federal Child Support Guidelines.
Do I need to go to court for my divorce?
A judge has to sign a divorce order, but in most cases this is done with electronic filing of documents. A court does not have to be involved in the negotiating and signing of your separation agreement. There are many ways to enter into a separation agreement without going to court. In most cases, the parties retain control and autonomy over the process, the legal fees, and the end result by not going to court.
How do I protect my rights during property division and asset allocation?
Even if you or your ex are not yet ready to negotiate a separation agreement, it can be time and money well spent to consult with a lawyer for an hour or so to gain an understanding of what you can do to protect yourself even before you negotiate an agreement.
Can we share custody of our children if we don't get along?
Studies show that it is conflict between their parents, and not the actual separation or divorce that is detrimental to children. Consulting a settlement-focused lawyer and/or family professional about what you can do to co-parent effectively is a very good idea.
Do I need a lawyer to obtain a divorce?
No. Ontario courts allow you to apply for an uncontested divorce on your own. One good resource is here: https://stepstojustice.ca/guided-pathways/family-law-about/
However, you may be prevented or hindered from making other claims arising out of your separation if you only apply for a divorce, and so we always recommend consulting a lawyer to first determine if there are other issues that you need to consider.
How is property divided during a divorce?
In very general terms, in Ontario, for a married couple who is separating, and assuming there is no cohabitation agreement or marriage contract that says otherwise, the Family Law Act provides that each couple should leave the marriage with half of the value of the assets that were accumulated during the marriage, after subtracting debts. This is called a division of net family property, and it is very advisable to get legal advice about how this principle might apply to your individual situation. Note that different laws about division of property apply to common law couples.
Will spousal support or alimony be a factor in my separation?
Alimony tends to be an American word. In Ontario, we refer to spousal support. There can be an entitlement to spousal support if you were married or common law. It is a very good idea to get some legal advice about your rights and responsibilities as far as spousal support go. Two excellent resources to get you started understanding the issues are the:
Spousal Support Advisory Guidelines – available here, and the
Revised User Guide, available here.
How can I minimize the emotional impact of divorce on my family?
This is probably one of the most difficult periods of your life. It is important for parents to shield their children from any conflict between the parents. Consult a settlement-focused lawyer and/or a family professional to get help and support about navigating this stressful time and ensuring your family comes out ok.