What is a Separation Agreement?

A Separation Agreement is an Agreement entered into by two persons who cohabited and are now living separate and apart, in which they agree on their respective rights and obligations, including:

  1. ownership in or division of property;
  2. support obligations;
  3. the right to direct the education and moral training of their children;
  4. the right to decision-making responsibility or parenting time with
    respect to their children; and
  5. any other matter in the settlement of their affairs.

What does living separate and apart mean?

Physical separation is not a prerequisite. You can live separate and apart in the same home. The factors that determine if you are separate and apart though living under the same roof include:

  • occupying separate bedrooms
  • absence of sexual relations
  • little, if any, communication between spouses
  • parties performing no domestic services for the other or either party
    refusing to assist in household maintenance for the other
  • eating meals separately
  • no social activities together
  • separating your finances

If any one or more of these factors apply to your situation, you are separated, even if you continue to live in the same house with your spouse or common law partner.

Why do I need a Separation Agreement?

A separation agreement is not mandatory. You can choose to get a divorce without a separation agreement however without a separation agreement, a lot of confusion can ensure regarding:

  • how your property was shared;
  • what the details are regarding parenting, not just the parenting schedule;
  • the duration of any support obligations;
  • what expenses for the children are covered and what is not, etc.

A divorce can only be granted by the courts, while a separation agreement need only involve you and your spouse or common-law partner agreeing to the terms. You can involve a mediator if you need help reaching an agreement.

What happens to my Separation Agreement when we divorce?

Nothing. All of your rights and obligations under the Agreement continues.


  • “spouse” means either of two persons who,
    (a) are married to each other, or
    (b) have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right.
    For the purposes of spousal support, “spouse” includes either of two persons who are not married to each other and have cohabited,
    (a) continuously for a period of not less than three years, or
    (b) in a relationship of some permanence, if they are the parents of a child.

    For purposes of the Family Law, your common-law partner is a person with whom you have lived in a relationship of some permanence, if you are the parents of a child or someone you have lived with continuously for at least 3 years.

    “cohabit” means to live together in a conjugal relationship, whether within or outside a marriage.

    In short, yes the court can make changes to your parenting plan/agreement. However, a court would only intervene if the change is obviously in the child’s best interest.

    Child support is the amount paid by one party to another for the expenses associated with caring for a child. It is meant to cover things like: groceries, basic school supplies, transportation, clothing and housing expenses for the children.

    The amount of child support a person has to pay is determined by the child support guidelines.

    Yes you can, if:
    1. Paying the amount prescribed by the guidelines would cause you undue hardship; and/or
    2. If other appropriate arrangements are made for the financial well-being of the child.

    This is the amount paid by a higher earning spouse to the lower earning spouse to financially support him or her, following a separation.

    Child and spousal support differ in a number of ways, including:
    - Child support is for the support of a child, while spousal support is for a spouse.
    - Child support amount payable is fixed under the Child Support Guidelines while spousal support payable is usually in a range: low, mid, and high.
    - The right to child support is automatic whereas a spouse must show entitlement to spousal support.
    - Whether support is paid on the low, mid or high range depends on various factors such the basis of entitlement to spousal support, the depth of the recipient’s need, parenting arrangements, contractual obligations, etc.
    - Child support payments take priority over spousal support payments.
    - Child support obligations exist for as long as the child remains a dependent whereas spousal support duration is dependent on factors such as the length of the relationship, whether the parties have children together and their ages and the age of the recipient at the time of separation.
    - Spousal support is paid by the higher earning spouse only. On the other hand, child support may be paid by the lower income earning spouse to the higher earner, if the children are reside primarily with the higher income earning spouse.

    This would totally depend on if the recipient is entitled to spousal support. In most cases, a large disparity in income would mean some entitlement to spousal support even if only based on need.

    This depends on a number including: you and the recipient’s incomes, the length of your relationship, your age, if you have children, the parenting arrangement for the children, etc

    Spousal support is tax deductible to the payor and taxable to the recipient. Child support have no special tax treatment.

    Duration of spousal support depends on various factors including the length of the relationship, the age of any dependent children at the date of separation, the recipient’s age at the date of separation, any arrangements made by the parties to shorten or increase the length of spousal support, in exchange for higher or lower periodic support payments.

    No, they are not mandatory, but they are practically treated as such in that save for exceptional cases, the courts expect spousal support to fall within the spousal support advisory guidelines ranges.

    This is an amount paid to financially support a child for expenses over and above the Table/Guidelines amount of child support.

    The answer to this question depends on whether you are a married vs. a common-law couple.
    Married Persons:
    Common-law partners:

    All assetsowned on the date of separation need to be equalized. To be more accurate, you do not simply divide assets, you divide your Net Family Property. Your net family property includes all assets and liabilities on the date of separation, deductions for date of marriage debts and liabilities, as well as excluded properties such as gifts, inheritances, etc. .

    Your pension is an asset to be divided. The best way to tell the correct amount to use is by getting the pension valued by the pension administrator. Talk to your HR department for guidance on how to do this. The pension administrators are required to value the pension by law, once you request it and complete the necessary forms. Depending on your pension administrator, a fee may be applicable.

    As a general rule, inheritances are excluded from a division/ equalization of net family property. If it’s deposited into a joint account, it may be presumed that you intended to share it with the other party. You should seek legal advice on how to best approach this issue.

    The terms of your separation agreement can be enforced just like any other contract, through the courts, or by arbitration.

    It’s not mandatory but it is strongly advised. Without having a lawyer review your separation agreement, you may be entering into a deal that is not the best for you. Even worse, you could be signing off on terms that do not accurately reflect what you agreed to.
    Also, without both parties having independent legal advice, the agreement can be invalidated in the future if one person claims they did not have a full understanding of what they were signing.

    Anyone over the age of 18 can be the witness except your spouse, partner, or child. So ,your friend, neighbour or colleague can act as witness.


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