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Crafting a Legal Separation Agreement in Canada

In Canada, most people must engage in a one year legal separation prior to getting a divorce. During that time, bills must be paid, decisions must be made about who lives where, and children must be cared for.

If you are getting a separation, you need a legal separation agreement to protect your interests. While the law does not require you to have one, it is the only way to be absolutely sure that the terms of any agreement you and your spouse come to will be followed throughout the entire separation period. 


What is a legal separation agreement?

A legal separation agreement is a formal contract that outlines how finances will be handled and how children will be cared for during the separation. It can include:


  • Who will live in the marital home.
  • Who will pay certain bills.
  • Temporary support payments.
  • Parenting time for each parent.
  • How and when joint accounts will be divided and closed.


If you think that many of the terms of a separation agreement might transfer right over to your divorce decree, you are correct. This is a reason why a formal separation agreement should always be negotiated with help from a family lawyer. It can be difficult to justify balking at terms that you agreed to during your separation. 

If you are involved in a common law marriage a separation agreement serves, essentially, the same function that a divorce will serve. Since there will be no formal divorce, the agreement must handle the division of property as well. 


What should I ask for in a separation agreement?

The specifics will depend on your unique situation. If both of you are working and both of you plan to live in the house, then you might divide the bills proportionally to your income. For example if one of you makes more than the other then the higher earner might take 60% of the bills and the lower 40%. 

If one is a homemaker, you might insist that your spouse continue paying the household bills even if they move out, and pay you enough money to get groceries and meet the needs of the children.

You should also ask for parenting time terms that help you preserve your relationship with your children. It’s usually wise to ask for 40% parenting time or more, as this will match the arrangements that the courts will favor when you and your spouse finally divorce. 


How much does it cost to get a separation agreement?

A separation agreement is relatively inexpensive. As long as there is very little fighting over it, a separation agreement can be forged for less than $3000. 

A common law separation agreement might cost a little more unless you and your spouse can work out an amicable arrangement. The longer you fight over the major issues of the separation the more time the lawyers have to spend, which can vastly increase the amount you have to pay.

We recommend coming to as much agreement as possible as early as possible, and doing your best to keep emotion out of it. You will generally come out ahead if you think of your separation agreement as being like a business deal. It is not a way to punish your spouse for leaving you or failing you or hurting you. 

Both of you have certain rights under Canadian law, including roughly equal rights to a relationship with your children and to the property acquired during the course of your relationship. Honor those rights and the process will go much more smoothly. 


What happens without a separation agreement?

The failure to create a separation agreement will leave you exposed. If your spouse decides to stop paying bills or abandons you without any support payments then you won’t have a way to enforce that. If your spouse denies you parenting time you won’t have any recourse.

A separation agreement is like any other contract. If your spouse breaks the contract you can take them to court for breach of contract and get it enforced. 

In addition, without a separation agreement you might spend a great deal more on your divorce. That’s because you won’t have taken any time hashing out any of the issues of the divorce in advance, which means you’ll be starting from square one the moment the divorce starts. 

When you have a separation agreement, some of those issues are already mostly dealt with. You can focus on negotiating the division of assets and formalizing parenting time arrangements instead. 


Do I need a lawyer for a separation agreement in Canada? 

Both you and your spouse should have your own lawyers for this process. Remember, this agreement will be binding for the full year you remain separated. If you separate for longer than a year without getting a divorce, then it will remain in force during that time, as well. 

Failing to involve a lawyer could mean putting yourself in a bad position during that time. It can mean putting yourself in an even worse position when it’s time to negotiate a divorce settlement, or should you find yourself facing a divorce trial.

If you are seeking a common law separation then recruiting an attorney to help you becomes even more vital. Your separation agreement will function exactly like a divorce would for a formally married couple. The ways that you divide your property, provide for your children, work out spousal support, and work out parenting time will be binding. Don’t try to go through this process without obtaining help from an experienced family lawyer. 


Get Help Today

We’ve helped hundreds of Canadians craft legal separation agreements. We are here to fight for and protect your interests at every stage of the divorce process.

We help clients in British Columbia, Alberta, Saskatchewan, and Manitoba. We’re known for being some of Canada’s savviest negotiators and toughest litigators. 

Contact Merchant Law to get started today. We’re ready to help.

About Donald I.M. Outerbridge

Donald became the Executive Director of Merchant Law Group LLP starting in 1993, nearly 30 years ago. His experience managing law firms at various levels and in multiple provinces across Canada goes back even further to 1981.

Please note: The information provided on this website is Not Legal Advice. The information may or may not be accurate. The information is for discussion purposes only. Reliance upon any information provided would not be grounds to advance a claim against Merchant Law for providing any advice. In order to get a formal legal opinion upon which you may rely about any specific fact scenario, you would have to first retain the services of a lawyer and request a formal legal opinion.