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  • 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' ...

    Hubby

  • #2
    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.

    Lindsay

    Comment


    • #3
      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.

      Comment


      • #4
        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.

        Lindsay

        Comment


        • #5
          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?

          Comment


          • #6
            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.

            Comment


            • #7
              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.
              Ottawa Divorce

              Comment


              • #8
                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
                Ottawa Divorce

                Comment


                • #9
                  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.
                  Ottawa Divorce

                  Comment


                  • #10
                    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.
                    Ottawa Divorce

                    Comment


                    • #11
                      Originally posted by Lindsay
                      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.

                      Lindsay
                      Not quite. As logicalvelocity points out, you can always enforce child support or spousal support provisions in a separation agreement under section 35 of the Family Law Act.

                      Even if the issue doesn't involve support, you can still go to court and argue that there has been a breach of your separation agreement.
                      Last edited by Jeff; 12-04-2005, 10:25 PM.
                      Ottawa Divorce

                      Comment


                      • #12
                        Originally posted by logicalvelocity
                        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
                        This provision is particularly used a few years after the separation agreement is reached when one party wants to change child support or spousal support. It allows you to bring a "motion to vary" rather than an "application" to deal with changing support. The procedure for a motion to vary is a lot faster than the standard application procedure.

                        As well, note also that there is a provision in the Family Law Act giving formal status to separation agreements:

                        Two persons who cohabited and are living separate and apart may enter into an agreement in which they agree on their respective rights and obligations, including,
                        (a) ownership in or division of property;
                        (b) support obligations;
                        (c) the right to direct the education and moral training of their children;
                        (d) the right to custody of and access to their children; and
                        (e) any other matter in the settlement of their affairs.

                        Sorry to sort of hijack this thread - I just wanted to clarify a few points.

                        Bottom line is: don't worry about whether you've got a separation agreement or court order. As a practical matter they're both the same. There are just a few minor procedural differences between them that you'll need to deal with if the agreement or order isn't followed or needs to be changed.
                        Last edited by Jeff; 12-04-2005, 10:32 PM.
                        Ottawa Divorce

                        Comment


                        • #13
                          I've learnt so much from this site. THANK YOU.

                          My lawyers are always trying to get a signed Offer to Settle, not a Separation Agreement. I assume that a signed Offer to Settle, is also legally binding.

                          Comment


                          • #14
                            Yes, an offer to settle that is signed by the other side is also legally binding.

                            Normally, it will be turned into a court order or a separation agreement after it is signed.

                            Lawyers also use the term "minutes of settlement" - this is pretty much the same as a separation agreement. The only difference is that a separation agreement is usually something that is signed when there are no legal proceedings whereas minutes of settlement are used to settle legal proceedings. Different term, pretty much the same thing.
                            Ottawa Divorce

                            Comment


                            • #15
                              Then why bother with an Offer to Settle, I'd rather go with the Separation Agreement. One less step.

                              Comment

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