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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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Old 12-02-2005, 11:11 AM
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Default When does a signed seperation agreement take effect

If both spouses have agreed to terms of the legal seperation agreement there must be a date when the terms must start being met in terms of Child Custody timeframes, Spousal/child Support and other terms that have been agreed to right?

I ask, becuase my spouse seems to be in a rush to obtain a 'legal seperation' ...

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Old 12-02-2005, 11:44 AM
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Hubby,

There is no such thing as a "legal separation" in Ontario. Separation agreements are not filed with the court.

A separation agreement would take effect on the date on which the last party signs it, however, the terms of the agreement can stipulate when child support is to commence, when the matrimonial home is to be put up for sale, when spousal support is to start and end (if time limited), etc. Everything doesn't necessarily commence on the date on which the agreement is fully executed.

So, if you were to sign a separation agreement today, the agreement would be "in place" as of today, but the agreement could state that child support is to commence on July 1, 2005 and that the matrimonial home is to be put up for sale next Spring. It all depends on what the parties have agreed to.

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Old 12-02-2005, 04:00 PM
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Just an opinion,

If both parties entered into the separation agreement in good faith and received independant legal advice, the separation agreement is binding to the terms of same.

The separation agreement could be filled with the courts to enforce the terms of the agreement much like orders from the court. Terms such as child support and spousal support could be processed through the Family Responsibility Office.
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Old 12-02-2005, 04:45 PM
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The enforcement of a separation agreement can only be done through court order. More specifically, you cannot have a separation agreement enforced just by filing it with the court.. you must make a motion to have the agreement turned into a court order.

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Old 12-02-2005, 05:55 PM
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I never knew that. Is it advisable to have a motion to have the agreement turned into a court order, at the start, or leave things be, until you feel one party is in breach of the agreement?
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Old 12-02-2005, 07:11 PM
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I wasn't aware. Very interesting. Knowledge is priceless

Family Law Act R.S.O 1990, c.F.3

http://www.e-laws.gov.on.ca/DBLaws/S...f03_e.htm#BK55

Section 35 subsection 1

Domestic contract, etc., may be filed with court

35. (1) A person who is a party to a domestic contract or paternity agreement may file the contract or agreement with the clerk of the Ontario Court (Provincial Division) or of the Unified Family Court together with the person’s affidavit stating that the contract or agreement is in effect and has not been set aside or varied by a court or agreement. R.S.O. 1990, c. F.3, s. 35 (1).

Effect of filing

(2) A provision for support or maintenance contained in a contract or agreement that is filed in this manner,

(a) may be enforced;

(b) may be varied under section 37; and

(c) except in the case of a provision for the support of a child, may be increased under section 38,

as if it were an order of the court where it is filed. 1997, c. 20, s. 5.


I was under the belief that you had to bring forth a motion to vary the terms of the separation agreement if changes were contested. I wasn't aware that you could only file a separation agreement to have it enforceable through FRO if you did so under motion.
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Old 12-04-2005, 08:42 PM
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Quote:
Originally Posted by hubby
If both spouses have agreed to terms of the legal seperation agreement there must be a date when the terms must start being met in terms of Child Custody timeframes, Spousal/child Support and other terms that have been agreed to right?

Hubby
As Lindsay stated, the separation agreement itself will set out when its terms take effect. As Lindsay said, the terms can take effect retroactively (child support should have started months ago) or in the future (the house will be sold in the sprint).

Normally, child support is payable as soon as you and your spouse are living in separate residences. Normally, spousal support, if it's owed, will be payable as soon as it's requested. Property is divided as of the date of separation, but payments for that can take place in the future and are usually the last step of the case.
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Old 12-04-2005, 08:44 PM
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Quote:
Originally Posted by hubby

I ask, becuase my spouse seems to be in a rush to obtain a 'legal seperation' ...

Hubby
As Lindsay said, there's no such thing as a legal separation in Ontario. You are separated once you've decided to end the marriage and start taking steps (not necessarily legal ones) to end it. There's more information about this here"

http://www.ottawadivorce.com/valuation-date.htm
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Old 12-04-2005, 08:49 PM
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Quote:
Originally Posted by Lindsay
Separation agreements are not filed with the court.
That's normally the case. But not always - see logicalvelocity's comment about section 35 of the Family Law Act.

One advantage of separation agreements is that they can contain things that a court order cannot contain. The most common example of this would be a spousal support release, which states that under no circumstances will either person be required to pay the other spousal support.
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Old 12-04-2005, 08:59 PM
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Quote:
Originally Posted by logicalvelocity
Just an opinion,

If both parties entered into the separation agreement in good faith and received independant legal advice, the separation agreement is binding to the terms of same.

The separation agreement could be filled with the courts to enforce the terms of the agreement much like orders from the court. Terms such as child support and spousal support could be processed through the Family Responsibility Office.
Just wanted to say that that this is more than just an opinion :-) - it's correct. A separation agreement and a court order are basically equally binding.

There are different consequences for not following a separation agreement and not following a court order. If you don't follow a court order, you are considered in contempt of court, which is something that carries serious penalties. But as a practical matter, not following a separation agreement will also land you in a lot of trouble, so this difference isn't as great a difference as it sounds.

As well, it's always open to a person to argue that a separation agreement should be considered void by the court. That's very hard to do, and where both parties have lawyers, not a serious concern. On the other hand, a court generally won't consider arguments that it's own order is void :-)

In short, as a practical matter a separation agreement is every bit as good as a court order.
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