Gail Vaz-Oxlade is author of 16 books on finances and best known in her role as host of TV's Til Debt Do Us Part, Princess and Money Moron.
Ask Gail Vaz-Oxlade
For most people divorce is less about legalities and more about kids, tax implications and making smart money decisions. Best-selling financial author Gail Vaz-Oxlade brings common sense wisdom to answer your questions about divorce in Ontario.
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The Separation Agreements in Ontario
Negotiating your financial and parenting arrangements and legally signing a separation agreement are the crucial first steps in your divorce process. In essence, this agreement will be the ongoing contract between you and your spouse with regards to all issues moving forward. It is very important that this agreement is prepared properly and in accordance to the laws of Ontario, as the decisions you make now will affect you and your children for years to come.
If you and your spouse have decided to separate, then it’s time to start thinking about your settlement arrangements as well as the preparation of a legal separation agreement. You do not need to go to court to settle arrangements between you and your spouse – nor do you need to go to court to enter into a separation agreement.
The Separation Agreement
Signing a Separation Agreement Does Not Legally End Your Marriage
A separation agreement and even court orders may resolve some family matters but they do not legally end your marriage. In Ontario, the only way to legally end your marriage is to apply for a divorce decree. However, a divorce decree does not in any way protect your interests or assets, ensure support, or guarantee any terms.
As part of your creating your separation agreement in Ontario, ensure that these vital elements are properly completed:
Full Financial Disclosure
Settlement of all Parenting Arrangements
Child Support Obligations according to Provincial Child Support Guidelines
Spousal Support Obligations
Formal Valuation of Pensions
Division of Assets
Notional Tax Obligations
Division of Debts
Separation of the Matrimonial Home
Future Dispute Resolution Clause
Independent Legal Advice
"One of the first questions a reputable lawyer will always ask you is “Where are your financial disclosures and what of your spouse’s disclosures have you seen?” Lawyers ask this because they want to make sure nothing is accidentally missed, that there has not been a misunderstanding of values and to make sure there is no active misrepresentation or non-disclosure. Without reviewing both financial disclosures, a lawyer cannot properly give legal advice on your separation agreement."
What is Financial Disclosure & Why Do I Need It?
When you separate, preparing your Financial Disclosure ensures that everyone is able to make all-important financial decisions based on real and accurate financial information. Financial Disclosure protects you by ensuring that you have the information needed to make decisions and ensures that both spouses are being transparent and not attempting to hide assets (or debts). Financial disclosure is the process whereby both you and your spouse formally provide supporting documentation regarding all bank accounts, savings, cash on hand, investments, pensions, and any other assets – as well as declare any outstanding debts and liabilities for the present, for the date that you separated and for the day you were married.
Financial disclosure will confirm bank balances, account statements, property values, verify RRSPs, and/or gather necessary information on the value of a privately owned business. A formal pension valuation (as opposed to a pension statement) is required. This means there will be no mistakes; no misunderstandings; no secrets; and both spouses are protected. After you and your spouse finally reach an agreement and before you sign any documents, your financial disclosure should be reviewed by a lawyer to ensure that you are fully satisfied with your knowledge of the family finances.
“What if I don’t want to complete a financial disclosure? Will it affect my separation agreement?”
On May 2nd, 2015, the Family Law Rules in Ontario were updated to include additional requirements for financial disclosure. The law has one simple stipulation: full and complete financial disclosure is required by both spouses. Though the information in the financial disclosure is important – what really matters is that there has been a full and formal financial disclosure.
The Family Law Act allows the Court to "set aside" (meaning ‘not enforce’) any separation agreement that has not included a full financial disclosure. If your separation agreement is not prepared properly from the beginning and is then later “set aside,” you will have cost yourself more time and money in the long run. Financial disclosure is a core piece of the separation puzzle. Yet, for whatever reason, people sometimes have difficulty with the concept of full financial disclosure. Typical objections include:
“That information predates our date of separation, so it isn’t applicable now.”
“My spouse already knows all this information.”
“I don’t want my private information reviewed by anyone.”
“We are splitting everything up on our own terms, so this information is not necessary.”
“Financial disclosure just seems like too much work.”
“I’m afraid if my spouse (or their lawyer) sees the real numbers they will come after me for more.”
“Can’t I just take my own homemade Separation Agreement to a Lawyer and get them to sign it?” A lawyer will never just sign off on someone else's document. They are required to give you legal advice based on the information provided. Lawyers can get into big trouble with the Law Society of Upper Canada if they give advice without reviewing the compete scenario and your full financial disclosures. Without complete financial disclosure, a lawyer cannot give you proper legal advice."
The Parenting Plan in your Separation Agreement
A Parenting Plan is the written legal document that outlines how you and your spouse, as co-parents, will raise your children after your separation or divorce.
Your parenting plan will focus on such parenting arrangement as:
child support and providing for your children’s needs
how decisions about the children are made
how information is shared between parents
where the children will live and when each parent will spend time with the child
how children will have access to grandparents and other relatives
how and where holidays and special occasions will be spent
how new partners will be introduced to the children
how other parenting issues may be addressed.
A good Parenting Plan is created first and foremost with the children’s interests and needs in mind. When negotiated and prepared properly, it will help to reduce conflict between you and your ex-spouse by setting out clear guidelines and expectations.
Child Support in Ontario must be calculated according to the Ontario Child Support Guidelines. Both parents maintain the responsibility of financially supporting their children and that support is based on your income and the number of children involved. Child support will continue until your children are 18 years old or until they have completed their post-secondary education.
In Ontario, the government has created an office called the Family Responsibility Office (FRO), which enforces support payments if necessary. The FRO will require paying parents to make all support payments to the FRO who will, in turn, send the payment to the other parent.
If any payments are missed, the Family Responsibility Office will take action to enforce the order or agreement which can include the garnishing of wages, registering a lien against a property, taking money from a bank account, ordering a collection, cancelling a passport or suspending a driver’s license.
"Research has proven that children cope better with their parents' separation if parents co-operate while negotiating their settlement arrangements (as opposed to litigating) and while preparing their Parenting Plan."
In Ontario, the law views marriage as a financial partnership. When that partnership breaks down, the spouse with more income or assets may have to pay spousal support to the other spouse in order to equalize the financial situation as arrived at the break-up of that partnership.
Your Separation Agreement will specify if any spousal support will be paid from one spouse to the other and if so, how much, when, and for how long. The law considers a number of factors when deciding how much spousal support and the length of time that it should be paid, including how much support the asking person requires in order to meet their needs, and how much the other spouse can afford to pay. A person may claim spousal support long term as equalization payments that will keep them from ending up in serious financial difficulty or short term to help them become financially self-sufficient.
If spousal support claims are waived, it is very important that your Separation Agreement is prepared properly in order to ensure that this waiver is binding and remains enforceable in the future. A professionally prepared Separation Agreement will not only capture such waivers with the proper legal verbiage, but it will also indicate why this waiver is included (for example, in exchange for a larger share of the matrimonial home, or some other asset in property division).
Formal Valuation of Pensions
A work pension does not belong to one spouse or the other. It is considered a matrimonial asset that must go into the divorce negotiations for fair and equitable distribution. It is therefore part of the division of assets that will be included in your Separation Agreement.
One of the biggest mistakes people make is to assume that they know the value of a pension based on a Pension Statement. There is a huge difference between a ‘Pension Statement’ and a ‘Pension Valuation.’ A regular annual pension statement does not include the valuation of a pension as an asset for the purposes of family law. You should never make decisions about pensions without first receiving professional financial and legal advice.
"How you negotiate the terms of pensions will have tax implications and notable ramifications on your personal retirement planning. Whether you choose mediation, a collaborative process, or the lawyer-led negotiations, you will be helped to understand whether you are entitled to a portion of your spouse’s pension, determine the exact amount that you may be entitled to receive and how to best to apportion pensions."
"If you intend to buy out your spouse's share of the matrimonial home, you will have to pay land transfer tax on your spouse share, unless you have a formal separation agreement in place."
The Matrimonial Home and Your Separation Agreement
When couples separate, typically the family home is sold – either to you, to your spouse or to a third-party buyer. You should always have a formal Separation Agreement in place that outlines all financial terms before attempting to change anything pertaining to home ownership.
A formal Separation Agreement is required to instruct your real estate lawyer how to disperse assets upon the sale of your home. Equity funds will sit in your real estate lawyer’s trust account until a Separation Agreement instructs the lawyer how to disperse the funds.
ALL Canadian Banks will require your legal Separation Agreement before they will approve you for a new mortgage. You will be required to qualify for a new mortgage based on your income and your debts alone regardless of what is outlined in that Agreement. Support payments will be considered as part of your total debt load when banks review your application.
If both parties are still on an existing mortgage then from the Bank's perspective both are responsible for the payment of the mortgage and all taxes until one of them is removed.
Dispute Resolution Clause of the Separation Agreement
Your Separation Agreement and specifically the elements pertaining to support and the parenting plan will include a clause describing the dispute resolution process by which potential future disagreements will be dealt with. It is an important clause that ensures you the option to pursue any number of potential dispute resolution avenues instead of only being able to resolve issues with lawyers or court. Typically negotiations that were originally resolved out of court will include a similar family dispute resolution process to deal with any potential future agreements.
"Family settlements that are created through mediation and settled out of court are statistically proven to minimize future conflict."
"Some people believe that it is sufficient to simply hire a Notary to witness an Agreement. A Notary does not provide ILA but rather only witnesses the signatures. Only a family Lawyer can give legal advice on a Separation Agreement. As well, a lawyer in Ontario, cannot give legal advice to both spouses."
Independent Legal Advice for your Separation Agreement
The Family Law Act grants the court the power to set aside or nullify a Separation Agreement or any clause in that contract if:
- a spouse failed to disclose to the other significant assets, significant debts or other liabilities that existed when the Separation Agreement was made;
- if a spouse signs an agreement while being forced, coerced or under duress
- if a spouse did not understand the nature or consequences of the Separation Agreement; or
- if the Separation Agreement was not prepared in accordance with the law of contract.
It is for this reason that mediation rcommends independent legal advice (ILA) to ensure that everyone understands their rights responsibilities and obligations before they sign their final Separation Agreement. A lawyer providing ILA will also review the financial disclosures, and explain if the contract is fair, valid and enforceable.
Remember, it is also in each person’s best interest to ensure sure that your spouse receives independent legal advice. Ensuring that your spouse receives ILA before they sign a Separation Agreement will nullify any future claims that they did not understand what they were signing or that they were signing under duress. When both spouses receive ILA, a Separation Agreement is presumed to be binding on both you and your spouse.
A lawyer cannot give legal advice to both spouses. Also, some people believe that it is sufficient to simply hire a Notary to witness an Agreement. A Notary does not provide ILA but rather only witnesses the signatures. Only a family Lawyer can give legal advice on a Separation Agreement.