The Legal Stuff

The Simple Separation Template (Financials), which is designed for couples who want to prepare a Separation Agreement (“Agreement”) independently without legal advice/financial disclosure. Typically, parties who have an amicable separation, which includes the ability to decide the terms of their separation as between themselves, prefer to use the Template Agreement, as opposed to retaining lawyers.

The Template Agreement for the Simple Separation relates solely to property division/spousal support. The parties can modify the Template Agreement, which is delivered with a general summary of family law in Ontario (“Summary”), to suit their agreed upon intentions.  

The Summary is not legal advice, and it is not intended to replace legal advice. Rather, it is a generic review of family law in Ontario, including reference to applicable legislation such as the Divorce Act and the Family Law Act. Since the Summary is generic, it may include information that does/does not apply to your situation. Again, the Summary is only intended to provide general information allowing the parties to familiarize themselves sufficiently with family law to better understand their rights/responsibilities, so the consequences of any modifications made to the Agreement are done as fully informed as possible. For further certainty, it is recommended you consult with a lawyer to obtain legal advice before signing the Agreement, which is intended to be a binding contract. 

Recognizing that parties may prefer to finalize the terms of their separation independently, the Agreement and Summary are intended to facilitate this process in a manner that complies with the principles outlined by the Supreme Court of Canada in its unanimous decision, Anderson v. Anderson, 2023 SCC 13. The facts in this case involved parties who prepared a separation agreement as between themselves without financial disclosure and without legal advice. At paragraphs 1 to 3 of this decision, the Supreme Court of Canada held:  

In the family law context, private agreements present unique advantages and concerns. On the one hand, individual autonomy to settle domestic affairs should be encouraged, as parties are generally better positioned than courts to understand the distinctive needs and circumstances of their private relationships. On the other, parties to domestic contracts are particularly vulnerable to unfairness and exploitation, given the unique environment in which domestic contracts are negotiated and concluded. As a result, family legislation typically authorizes judges to review a domestic contract. The degree of deference afforded to a domestic contract under the governing statute often depends on whether it meets statutory formalities, such as whether the parties received independent legal advice. 

This appeal raises the issue of how courts should approach and weigh a domestic contract that purports to opt out of a provincial property scheme, but fails to meet the statutory requirements that would entitle it to presumptive enforceability. In particular, this appeal asks whether the analytical framework this Court developed in Miglin v. Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303 — which dealt with spousal support under the federal Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) — is appropriately applied to such a domestic contract. 

This Court’s jurisprudence on domestic contracts, including Miglin, recognizes that the breakdown of a spousal relationship is often wrought with emotional turmoil and can give rise to vulnerabilities that undermine the fairness of domestic contracts. The devastating impact of a separation means that parties to a separation agreement may be “ill-equipped to form decisions of a permanent and legally binding nature” (J. D. Payne and M. A. Payne, Dealing with Law: A Canadian Guide (1993), at p. 78, quoted in Miglin, at para. 74). Miglin and the cases that follow it therefore signal to courts to approach domestic agreements with caution and to have regard to important procedural protections that help ensure the deal struck is fair. Moreover, while this Court has long supported the freedom of parties to settle their domestic affairs privately, respect for private ordering cannot be permitted to thwart the public policy objectives enshrined in family law legislation. Therefore, in deciding how much weight to give the agreement, a reviewing judge generally examines both the fairness of the bargaining process and the substance of the agreement, in accordance with the legislative scheme. 

After you have completed the Template Agreement, you have the option to retain a lawyer to review it to further increase its enforceability. This is known as Independent Legal Advice (“ILA”), which is the process of reviewing with you the Agreement in context with the law, so you have a clear understanding of how your contract is the same/different and what the legal consequences are/may be for you now/in the future as a result of signing the Agreement. A lawyer can only represent one of the parties to the Agreement, but it can provide access to its network of trusted professionals, one of whom can provide ILA for the other party.  

In addition to ILA,  a lawyer can assist with financial disclosure to provide even greater certainty as to the enforceability of the Agreement. Both ILA and financial disclosure are charged hourly with rate particulars given upon request. In the event you would like to engage the Firm in respect of ILA/financial disclosure, then a Retainer Agreement will need to be signed. 

If the parties review the Summary, modify the Agreement to reflect their interests, and choose to execute the Agreement without financial disclosure and/or ILA that is their choice, but both will be executing Releases as against one another and confirming there is no retainer or legal advice that has been provided and, further, that the parties are expected to abide by the terms of the Agreement.  Since the Firm is not retained in any capacity, the Waiver/Release will further reflect it was not responsible for anything to do with the Agreement, including drafting, negotiating or any other potential aspect of preparing this contract, such as the misrepresentation of facts by one party or the erroneous/intentional inclusion or exclusion of relevant/irrelevant provisions in the Agreement. 

After the Agreement is executed, and a year has passed from the date of separation as identified in the Agreement, the parties may apply for a divorce order. Should you require assistance in this regard, the Firm offers the Simple Divorce with details provided upon request. 

We assume no liability for any issues arising from your completion of the templates. This includes but is not limited to any mistakes you or your partner may make in the facts or in the law, miscalculations on any of the financials including support (child and spousal), mistakes in interpretation, failure to understand your obligations or rights in law, failure of you or the other side to provide complete and accurate disclosure, unclear or confusing drafting, and/or if a judge sets aside all or some of your agreement.