Uncontested Divorce and Separation Agreements

So, my marriage is over and now I have to deal with this complicated and expensive divorce process? It is understandable if you find yourself asking this question. Irrespective of the length or nature of your marriage, separating from your spouse is the probably the most difficult decision you have made in your life, and in most cases this chapter of life does not end with a period, but, rather, with a number of question marks.

Knowing that you do not have to go through the legal process alone may help! An experienced divorce lawyer can make this emotional journey of divorcing your spouse much more straightforward.

Divorce only or divorce and other issues arising from separation?

First, you must understand that a claim for divorce is just one of many claims that can arise on the breakdown of your marriage. A claim for divorce leads to the termination of your legal status as a married person. However, the granting of a simple divorce does not resolve any other issues arising from the breakdown of your marriage, such as:

• timesharing with your children,
• child support,
• spousal support,
• property claims, including:
  • division of household contents; treatment of the family home, or other real estate; allocation of all other assets, or a payment relating to the equalization of assets;
  • allocation of debts;
• protection orders,

and many more possible issues – including those related to tax and estate concerns. These other issues are called “corollary issues.” Proceeding with a simple divorce only, before resolving these corollary issues, can negatively impact your ability to proceed with some of these issues. So, you must understand what you want – and need – to achieve, and how to go about doing it.

It is also important to note that, while the granting of a simple claim for divorce must be obtained through the Court, claims regarding corollary issues can be resolved:

• outside of the Court, by way of a Separation Agreement, or
• in Court, by way of a Court order.

You may be wondering if you need a lawyer to divorce in Ontario?

Based on the information above, the better question is, do you need a lawyer to resolve all of the issues arising from the breakdown of your marriage, including:

• a simple claim for divorce; and
• claims regarding corollary issues?

Can you do it alone? Yes. You can oversee the divorce process yourself, especially if it is an uncontested divorce where both parties agree on the terms of separation, but, even then, the divorce process involves a few steps and if you have children, simply agreeing on the terms of separation may not be enough.

Is it prudent to get advice from a divorce lawyer before proceeding? Certainly.

Will you achieve a superior outcome if you are guided in the process by a divorce lawyer? Almost certainly.

Let’s consider your options.

You may have heard of the concept of an uncontested divorce. An uncontested divorce is a simple claim for divorce that proceeds through the Court without a contest by either party.

An uncontested divorce should occur when:

1. Both parties consent to the granting of a simple claim divorce;
2. AND
   • there are no corollary issues, OR
   • all corollary issues have been otherwise resolved.

As mentioned above, corollary issues can be resolved by an Agreement between the spouses, or by the granting of a Court order for corollary relief. If you and your spouse agree on terms regarding your corollary issues, which, once again, may include issues such as spousal support, property division, timesharing of children and support for children, you must consider the need for a separation agreement. This is discussed later in this blog.

Uncontested Divorce:

An uncontested divorce process will include the following steps –

1. You and/or your spouse must complete a joint application for divorce or an application for simple divorce. You can find the document checklist, fee and step-by-step information provided by the Ministry of the Attorney General for
   • a Joint Divorce Application by using the following link and
   • a Simple Divorce Application by using the following link
2. You must choose the right Court; only the Superior Court of Justice or the Family Court of the Superior Court of Justice (also known as the unified Family Court) can make a divorce order.
3. Along with the divorce application, you must file your original marriage certificate or marriage registration certificate, a copy of your continuing record and table of contents.
4. Depending upon the type of application you are filing, you may need to complete additional forms such as a sworn Financial Statement (Form 13 for support claims only and Form 13.1 for support and property claims) for each party, Form 35.1 Affidavit (decision-making responsibility, parenting time, contact), etc. (see the link provided above for document checklist).
5. If you opt for a simple divorce application, you must take the signed Form 8A Application to the Family Court/ Superior Court of Justice in your jurisdiction to have it issued. Once you have the issued application, you must arrange for a process server or any third-party other than yourself such as a friend or family member to serve the issued application upon your spouse. Whoever serves the Application on your behalf must complete an Affidavit of Service (Form 6B).
6. You must file this Affidavit of Service with the Court’s filing office. After 30 days, in the absence of any objection from your spouse, you must file an Affidavit for Divorce (Form 36). This document does not need to be served.
7. You must also file a draft Form 25A divorce order (must be typed).
8. The divorce application has a Court fee that you must pay at the time of having your application issued. Placing your matter on the list to be reviewed by a Judge has a Court fee that you must pay at the time of filing of your Affidavit for Divorce.

* The Family Law Rules Forms are updated from time to time. Always ensure that you are using the most recent version of the form you are filing to avoid rejections. All relevant family law forms may be downloaded from here: https://ontariocourtforms.on.ca/en/family-law-rules-forms/

Even with the step-by-step information and document checklist, filing a divorce application successfully, without the assistance of a divorce lawyer can be tricky and frustrating. If there are any discrepancies or missing information in your forms, your documents are likely to be rejected.

Sometimes, after the application and Affidavit for Divorce has been accepted by the filing staff, the Judge reviewing your application may have questions or concerns and may either reject your divorce application or return an endorsement seeking explanation or further information, which you must address at the earliest opportunity.

At Bair Family Law, we offer a flat fee for uncontested divorce applications which includes the Court fees and the lawyer’s fees. If you need assistance with your uncontested divorce application, call us at (705) 720-1090 or request a consultation by completing our web form 

Contested Divorce

If there are disagreements about corollary issues, such as child or spousal support or property division, it is usually a good idea to consult with a divorce lawyer. A divorce lawyer can help you understand your rights, negotiate a settlement on your behalf, and represent you in court, if needed.

If you choose to represent yourself, you should familiarize yourself with the Family Law Act, Divorce Act, and the Family Law Rules. While it is not a legal requirement to have a lawyer, their expertise can be crucial in navigating more complex situations and ensuring that your legal rights are protected.

Beware of some of the pitfalls of proceeding with a divorce without proper guidance.

Spousal Support – If you are a prospective spousal support recipient and you obtain a simple divorce order without entering an agreement or obtaining a Court Order regarding the length and amount of spousal support, your subsequent claim for spousal support could be forever barred.

Child Support – If you are the primary caregiver of your child(ren), without a written agreement or Court Order addressing child(ren)’s residence and child support, the Court may reject your divorce application. If the divorce order is issued and then you wish to claim child support retroactively, your ability to successfully claim retroactive child support may be limited.

Property – There is also a limitation period to claim equalization (a process for division of married spouses’ net family property). This limitation period may be shortened by the granting of a simple claim for divorce.

Any application claiming equalization/property division (including division of an employment pension) must be made:

1. within two years of the granting of a divorce order;
2. within six years of the date of separation; or
3. within six months after the first spouse’s death,

whichever date comes first. After such time, your claim will be statute barred.

It is also crucial to bear in mind that a verbal agreement will generally have no enforceability under the law, so merely agreeing on the terms of separation with your spouse will not be enough.

The Bottom line – If you proceed with a simple claim for divorce without signing a separation agreement or Minutes of Settlement or obtaining a Court Order, you may be jeopardizing your entitlement to support or property division.

If you and your spouse do not agree upon the terms of your separation, it is highly recommended that you consult a divorce lawyer at the earliest opportunity to obtain legal advice and understand your rights and obligations.

Do you need a separation agreement before divorce in Ontario?

In Ontario, a separation agreement is not a prerequisite to obtaining a divorce, although it is highly recommended that you and your spouse resolve all corollary issues, including but not limited to, timesharing for any children, child support, spousal support and property issues, in writing prior to obtaining a divorce, since a verbal agreement will likely have no legal standing.

Separation agreements become more important when there are minor children involved. In the absence of a separation agreement, if the Judge reviewing your divorce application is unsatisfied as to whether appropriate arrangements have been made for the child(ren)’s primary residence and child support, your divorce application may be rejected. In any event, having a signed separation agreement can make it easier to finalize the divorce, as the court will have a clear understanding of the terms agreed upon.

What exactly is a separation agreement?

A separation agreement is a domestic contract that outlines how you and your spouse have agreed to resolve the issues arising from the breakdown of the marriage. It helps to clarify your property, parenting, support and other arrangements and it can make the divorce process smoother.

Do you need a lawyer to prepare your separation agreement?

You do not necessarily need a divorce lawyer to draft your separation agreement. You can draft your own separation agreement. However, without guidance from a divorce lawyer, there can be future challenges to your separation agreement. The likelihood of your agreement being declared unenforceable in the future is much higher, if either party challenges the validity of such agreement in Court. Agreements prepared by the parties are commonly referred to as “kitchen-table agreements,” and they often fail to meet essential legal formalities. For example:

• An agreement may be challenged if either party does not understand the nature and consequence of the agreement. In the absence of a divorce’s lawyer’s certificate of independent legal advice regarding the terms of the separation agreement, either party may more easily claim at a later date that they did not understand the nature and consequences of signing the agreement, leaving the agreement vulnerable to a future challenge.
• An agreement may be challenged if there is not sufficient financial, or other disclosure, to allow the parties to properly understand the terms of the agreement. In the absence of proper legal guidance as to disclosure requirements or a sworn financial statement, there could be lack of full financial disclosure, which can become a ground for successfully challenging the validity of the agreement at a future date.
• An agreement may be challenged if either party to the agreement was subjected to undue influence, coercion or an imbalance of power. If the parties enter a separation agreement without the involvement, and support, of their lawyer, or without independent legal advice, allegations of undue influence, coercion or power imbalance may be the basis of a challenge to the agreement at a future date.

In all of these circumstances, there is a high chance that the Court can declare some, or all, of the terms of such kitchen-table agreement, unenforceable. If you have already obtained a divorce and your property claims are statute barred by this time, you may face serious unintended and undesired consequences.

Further, kitchen-table agreements, prepared without the benefit of a divorce lawyer, are more likely to:

• present problems with interpretation, when the parties’ understanding of their wording clashes with legal expectations as to interpretation and drafting;
• overlook critical issues (including tax and estate issues); and
• generate unintended outcomes, due to a lack of knowledge or experience.

Why You Should Think Twice Before Your Forgo a Lawyer for Your Agreement

All of the challenges described above can be avoided if you retain a divorce lawyer to prepare and oversee the execution of your separation agreement. Here is why it is important:

1. Legal Expertise

A divorce lawyer will ensure that the separation agreement complies with the Family Law Act and other relevant statutes. They will also provide you with a clear understanding of your legal rights and obligations, helping you make informed decisions.

2. Tailored and Flexible Solution

A well-drafted separation agreement will be tailored to suit your and your spouse’s and your child(ren)’s needs and circumstances. You and your spouse can agree to terms of settlement that a Judge may not necessarily order. At the same time, you have the benefit of legal advice from your divorce lawyer to ensure that the terms of your agreement align with the Ontario laws and will not jeopardize the enforceability of your agreement.

3. Avoiding Pitfalls

A divorce lawyer can help ensure that the terms of your separation agreement are fair and equitable for both parties, which is particularly important in matters involving the division of assets, child and spousal support, and the best interest of any children involved. They can identify and address potential issues or imbalances that might not be apparent to someone without legal training.

4. Appropriate use of Legalese

A divorce lawyer will use precise and legally appropriate language to draft your separation agreement pursuant to the relevant statutes, reducing the risk of ambiguity or misinterpretation. A divorce lawyer will also ensure that the agreement meets all legal requirements, which is crucial for its enforceability in Court.

5. Assistance with Negotiations

Even in the most amicable separations there can be disagreements. A divorce lawyer has the required skills and knowledge to negotiate fair and reasonable terms of settlement on your behalf, with your spouse or their divorce lawyer. These skills come in handy specifically where the matter involves high conflict, and the parties do not communicate well.

6. Your personal lighthouse

Your divorce lawyer will provide objective advice and will help you navigate through this emotionally and financially challenging phase. Your lawyer will protect your interests by helping you avoid emotional decision-making, which can be particularly valuable during a stressful separation process.

7. Expense vs. Investment

It is true that retaining a divorce lawyer comes with its costs, but investing a reasoned amount for a divorce lawyer’s support in negotiating and signing a legally binding and enforceable separation agreement which will protect your many thousands of dollars of support and property, is a very wise investment toward your future financial security. If you:

• delay the resolution of your family law affairs for too long,
• obtain a simple divorce without addressing the other outstanding issues,
• believe you and spouse have an agreement but your spouse changes their mind after divorce,

you will likely end up litigating the issues which will cost significantly more than a separation agreement.

A separation agreement is probably the most comprehensive legal document that you will sign in your lifetime. It will affect your life for years to come. Involving a divorce lawyer in drafting a separation agreement helps ensure that the document is legally enforceable, fair, and tailored to your specific needs. It provides you with professional guidance and protection, making the process smoother, reducing the risk of future challenges.

At Bair Family Law, our lawyers are well-versed in the legal intricacies and requirements of separation agreements. If you need assistance with your divorce and/or preparation of your separation agreement, call us at (705) 720-1090 or request a consultation by completing our web form.