Separation Agreement Checklist

Under Ontario’s Family Law Act, a properly drafted separation agreement is legally binding if both parties provide full financial disclosure, sign the document voluntarily, and understand its implications. Having independent legal advice is strongly recommended to prevent future legal challenges.

A checklist is essential to make sure all key aspects are covered, preventing future disputes and ensuring fairness. Missing critical details could lead to an unenforceable or unfair agreement.

2. Personal and Basic Information

This section establishes the identity of both parties and provides essential details for the separation agreement.

✅  Full legal names of both spouses – Ensure accuracy to prevent legal disputes.
✅  Date of marriage and date of separation – Clearly state these dates to define the legal timeline of the relationship.
✅  Address and contact details of both parties – Include current residential addresses, phone numbers, and email addresses for official communication.

3. Financial Disclosure Checklist

Full financial disclosure is essential for a fair and legally enforceable separation agreement in Ontario. Both spouses must provide complete and accurate financial information to ensure transparency and prevent future disputes.

✅  List of all assets – Include bank accounts, investments (stocks, RRSPs, TFSAs), real estate properties, pensions, and any other valuable assets.
✅  List of all liabilities – Outline all outstanding debts such as mortgages, personal loans, credit card balances, car loans, and lines of credit.
✅  Income statements – Provide recent pay stubs, T4 slips, tax returns (last three years), and any other proof of income.
✅  Business ownership details (if applicable) – If either spouse owns a business, include financial statements, valuation reports, and shareholder agreements.

Accurate financial disclosure ensures that asset division, spousal support, and child support calculations are fair and in accordance with Ontario’s Family Law Act.

4. Division of Property and Assets

In Ontario, property division follows the Equalization of Net Family Property (NFP) principle for married couples. For common-law partners, property rights are not automatic, and claims must be based on contributions. This section ensures that all assets and liabilities are fairly distributed.

✅  Who will keep the matrimonial home? – Decide whether one spouse will keep the home, if it will be sold, or if co-ownership will continue for a period. Under Ontario law, both spouses have equal rights to stay in the matrimonial home, regardless of whose name is on the title.

✅  How will other properties be divided? – Specify how secondary properties, vacation homes, rental properties, or land will be allocated.

✅  Allocation of vehicles, furniture, jewelry, and other valuables – List all significant personal and shared assets and determine ownership or division.

✅  Splitting of joint bank accounts, investments, and retirement funds – Decide how shared financial assets such as savings accounts, RRSPs, TFSAs, and pensions will be divided. Pensions may require a valuation for fair distribution.

✅  Handling of joint debts (mortgages, credit cards, loans) – Clarify responsibility for paying off shared debts or whether liabilities will be split between both spouses.

5. Spousal Support Considerations

Spousal support is intended to provide financial assistance to a spouse who was economically dependent during the marriage. The eligibility, amount, and duration of support payments are determined based on several factors, including income disparity, length of the marriage, and each spouse’s financial needs and contributions.

✅  Eligibility for spousal support – Consider factors such as income difference, length of the marriage, roles during the marriage (e.g., primary caregiver, homemaker), and financial hardship after separation. Spousal support is not automatic and depends on whether a spouse requires support and if the other spouse has the ability to pay.

✅  Amount and duration of support payments – The Spousal Support Advisory Guidelines (SSAG) provide a framework for calculating support amounts based on income levels and the duration of the relationship. Payments can be:

• Lump sum (one-time payment)
• Periodic payments (monthly, biweekly, etc.)
• Indefinite support (common in long marriages)

✅  Conditions for modifying or terminating support – Define circumstances that would lead to a change or end of spousal support, such as:

• Change in income or employment status of either spouse
• Recipient spouse remarrying or entering a new common-law relationship
• Retirement of the paying spouse

Spousal support agreements should be clearly outlined in the separation agreement to avoid future legal conflicts. Independent legal advice is highly recommended to ensure fairness and enforceability under Ontario’s Family Law Act.

6. Child Custody and Parenting Arrangements (If Applicable)

When children are involved in a separation, a clear parenting plan is essential to minimize conflict and prioritize the child’s best interests. In Ontario, child custody and access arrangements must comply with the Children’s Law Reform Act and the Divorce Act (if the parents were married).

✅  Custody type (joint custody, sole custody, shared parenting) –

• Joint custody: Both parents share decision-making responsibilities.
• Sole custody: One parent has full decision-making authority.
• Shared parenting: Both parents have at least 40% parenting time each.

✅  Parenting schedule (weekdays, weekends, holidays, vacations) –

• Define regular custody schedules (who the child lives with on school days, weekends, and overnight stays).
• Set holiday and vacation schedules (Christmas, summer vacations, birthdays, long weekends).
• Outline transportation responsibilities (who picks up/drops off the child).

✅  Decision-making responsibilities (education, healthcare, extracurricular activities) –

• Who will make major decisions regarding the child’s schooling (choice of school, tutoring, special needs support)?
• Agreement on medical and healthcare decisions (emergency care, vaccinations, therapy, orthodontics).
• Participation in extracurricular activities (who pays, transportation arrangements).
  

7. Child Support Agreements (If Applicable)

Child support is a legal obligation in Ontario, ensuring that children continue to receive financial support after their parents separate. The amount of support is typically determined using the Ontario Child Support Guidelines, which calculate payments based on the paying parent’s income and the number of children.

✅  Determination of child support payments (based on Ontario Child Support Guidelines)

• Child support amounts are based on the paying parent’s gross annual income and the number of dependent children.
• The parent with primary custody typically receives support from the other parent.
• For shared custody (each parent has the child at least 40% of the time), child support may be adjusted accordingly.

✅  Adjustments based on changes in income or living arrangements

• Child support may need to be reviewed and updated if the paying parent’s income changes significantly.
• Modifications may also be required if the child moves to live with the other parent or if their needs change (e.g., new schooling requirements).
• The agreement should outline the process for requesting a review of child support payments.

✅  Additional expenses (medical, education, extracurricular activities)

• Parents must decide how to share additional costs not covered by basic child support, such as:
  • Medical and dental expenses (e.g., braces, therapy, prescription medication).
  • Educational costs (e.g., tutoring, private school fees, post-secondary tuition).
  • Extracurricular activities (e.g., sports, music lessons, summer camps).
• Typically, these costs are divided proportionally based on each parent’s income.

Including clear child support terms in a separation agreement ensures that the child’s financial needs are met while reducing potential disputes between parents. It is advisable to consult a family lawyer or mediator to ensure compliance with Ontario’s child support laws.

8. Matrimonial Home Agreement

The matrimonial home is often the most significant asset in a separation, and its division requires careful consideration under Ontario’s Family Law Act. In Ontario, both spouses have equal rights to the matrimonial home, regardless of whose name is on the title or mortgage.

✅  Who will stay in the home?

• Will one spouse continue living in the home?
• If both spouses want to stay, how will it be decided?
• Will there be a temporary arrangement until the property is sold or a buyout is arranged?

✅  Whether the home will be sold or transferred

• Will the home be sold, and the proceeds divided?
• Will one spouse buy out the other’s share?
• If transferred to one spouse, what are the financial and legal implications?
• How will home equity be split if the property has appreciated or depreciated?

✅  Mortgage responsibility and property taxes

• Who will pay the mortgage until the home is sold or transferred?
• How will property taxes, maintenance, and insurance costs be handled?
• Will the spouse staying in the home refinance the mortgage in their name alone?

Since the matrimonial home has unique legal protections in Ontario, it is strongly advised that both parties seek independent legal advice to ensure a fair agreement that complies with the Family Law Act.

9. Insurance and Beneficiary Designations

Separation can significantly impact insurance policies and beneficiary designations. Updating these details ensures that financial protections remain in place and align with new legal and financial responsibilities.

✅  Life insurance policy changes

• Will one spouse be required to maintain a life insurance policy to secure child or spousal support?
• Who will be the beneficiary of the policy after separation?
• Will there be an agreement on maintaining or adjusting coverage amounts?

✅  Health and dental insurance coverage

• If one spouse is covered under the other’s employer-provided health and dental plan, will coverage continue post-separation?
• How will children’s medical and dental expenses be handled if coverage changes?
• Will an alternative private insurance policy be necessary?

✅  Changes to beneficiary designations on financial accounts and retirement plans

• Update or confirm beneficiaries on RRSPs, pensions, TFSAs, and other investment accounts.
• Review and adjust workplace retirement benefits and pension plan beneficiary designations.
• Ensure any new beneficiary designations align with the separation agreement terms.

10. Future Dispute Resolution

To prevent costly legal battles and ongoing conflicts, a separation agreement should include clear guidelines for resolving future disputes. Establishing a structured resolution process ensures both parties have a fair and efficient way to handle disagreements.

✅  Mediation or arbitration clauses

• Will mediation be required before taking legal action?
• Will disputes be settled through arbitration, where a neutral third party makes a binding decision?
• If mediation or arbitration fails, under what circumstances can either spouse take the issue to court?

✅ Agreement on legal enforcement methods

• Specify how the separation agreement will be enforced if one party fails to comply.
• Will legal action be taken through Ontario family courts if necessary?
• Outline penalties or remedies for breaching the agreement.

✅  Process for modifying the agreement if circumstances change

• How will changes in income, child custody, or living arrangements impact the agreement?
• What is the procedure for modifying spousal or child support based on financial changes?
• Will a formal written amendment be required, and must both parties agree to changes?

Including a future dispute resolution clause in the agreement reduces uncertainty and ensures conflicts are handled professionally, efficiently, and in compliance with Ontario family law. Consulting a family lawyer or mediator can help create a balanced and enforceable process.

11. Legal Considerations and Finalization

For a separation agreement to be legally binding and enforceable in Ontario, it must meet specific legal requirements under the Ontario Family Law Act. Proper finalization ensures that both parties understand their rights and obligations, reducing the risk of future disputes.

✅  Full financial disclosure statement signed by both parties

• Both spouses must provide complete and honest financial disclosure, including assets, debts, income, and expenses.
• A signed financial disclosure statement helps prevent future claims of fraud or coercion.

✅  Independent legal advice (ILA) for both spouses

• Each party should consult their own family lawyer to review the agreement.
• ILA ensures that both spouses understand the terms, preventing claims that one party was pressured or unaware of their rights.
• Courts may set aside an agreement if one spouse did not receive ILA before signing.

✅  Written agreement signed in the presence of witnesses

• The agreement must be in writing (verbal agreements are not legally binding).
• Both parties must sign the agreement in the presence of a witness.
• The witness must also sign and print their name to confirm the validity of the signatures.

✅  Filing and storing copies for future reference

• Each spouse should keep an original signed copy in a safe place.
• A digital scan should be stored for easy access if needed later.
• If required, the agreement can be filed with the Ontario family court for added enforcement protection.