Separation Agreement

When a marriage breakdown, or parties who are cohabiting separate, they must resolve certain issues which could include:

• Custody
• Child support
• Division of Property
• Access
• Spousal Support

These issues can be resolved by the parties through negotiation, mediation and/or Arbitration.

Physical separation is not a prerequisite. In Ontario, separation is recognized even though the parties continued to live in the same home.

The best-case scenario at the end of a relationship is entering into a Separation Agreement, which articulates the parties’ settlement terms and ensures the parties avoid the difficult and expensive litigation process.

The end of a relationship is always difficult and uncertainty about the legal ramifications can compound the difficulty.

It is important to seek legal advice from competent legal professionals even when you and your partner are “amicable”. This is where AP Lawyers come in. As experienced negotiators, we work with our clients to get them the best possible deal while maintaining the spirit of co-operation necessary to reach a final deal.

Too often, parties who believe they are amicable negotiate, draft and sign their Separation Agreements without the involvement of lawyers. We strongly advice against this. Here are a few of the issues we have observed in scenarios where parties have drafted their own Separation Agreement:

• Lack of clarity on terms of the Agreement
• One party gives too much due to a lack of understanding of the law
• One party receives too little because they did not understand the law and even if they did, they were coerced into the agreement
• Fail to address foreseeable future events
• No mechanism provided for change
• Contradictory provisions that affect the interpretation of the agreement
• Insufficient financial disclosure either due to lack of knowledge or manipulation by one party
• Issues inadvertently left unresolved
• Lack of independent legal advice which makes it easy to set aside the Separation Agreement.

We could go on, but we think you get the idea. Unfortunately,the costs and consequences of a poorly drafted Separation Agreement greatly exceeds the cost of getting it right the first time.

Angela Princewill and her Associates at AP Lawyers have negotiated and drafted hundreds of Separation Agreements. These Agreements have ranged from the simple to the complex, involving various other financial, tax and medical professionals.

Recent Successes

S. v. C.

The parties negotiated, drafted and signed their Separation Agreement without involving lawyers.

10 years later, the parties were in litigation over the issues of child and spousal support.

S understood one thing, C understood another, and the Separation Agreement was not clear. Even worse, the terms were contradictory. S sought back payment of about $350,000 because of significant post separation increases in C’s income. We believed C owed S nothing based on his understanding of what he signed.

Ultimately, we settled the matter for only a fraction of the $350,000 and an amount that was much less than the legal fees if we were to take the matter through to Trial.

C is a busy professional and was thrilled with the result. Not only did he not have to waste time and money attending court, he was able to protect his future income.

This was a very expensive lesson for both parties who spent tens of thousands of dollars in legal fees. The animosity could have been avoided and a Separation Agreement could have been prepared for 1% of the legal fees the parties had to later incur.

C. v. M.

After 26 years of marriage, C and M agreed they will be happier apart, than together.

C consulted with AP Lawyers and Angela Princewill advised her that given the level of cooperation between C and M, and the simplicity of the issues, C could actually negotiate settlement ideas with M directly.

Angela Princewill educated C on her rights and obligations. She advised C on various options that would work for C’s family and armed with this knowledge, C and M were able to agree on settlement terms, subject to each one obtaining independent legal advice.

Angela Princewill believed the settlement terms were fair and proceeded to draft a Separation Agreement for the parties.

M was given a chance to review the draft to ensure the draft reflected what the parties had agreed to. He also obtained independent legal advice, so he also understood the legal ramification of the Agreement. M signed the Separation Agreement with his lawyer while C signed hers with us.