When parties are going through a separation, they can reach an agreement at any time during the process.
Some of the most common matters which need to be resolved involve a parenting plan, division of family property which can include the matrimonial home and any other property owned by the couple at the time of separation, and financial support which can include the amount of child support and/or spousal support.
Even after a court proceeding has begun, it’s not too late to enter into an agreement with your soon-to-be-ex. This applies to both married spouses and common-law couples.
If you come to an agreement without involving the courts, your agreement is referred to as a Separation Agreement.
Once court proceedings have begun or litigation has been initiated, any Settlement Agreement that you come to is referred to as Minutes of Settlement.
Both agreements accomplish the same objective; they create contractual obligations and entitlements for the parties after separation.
This document essentially becomes the “rule book” for how both parties govern themselves and their affairs going forward.
What’s Included In A Separation Agreement or Minutes of Settlement?
While each agreement is different and must reflect the specific circumstances of the parties and their children from the marriage, there are some common matters that must be addressed in accordance with the Family Law Act, Family Law Act, RSO 1990, c. F.3 in order for the court to grant a divorce.
For more information on filing for divorce, please refer to our article on contested vs. uncontested divorce.
In Ontario, there are standard child support guidelines that must be adhered to.
It is always best to consult with a family law lawyer before signing a Separation Agreement, even if your separation and divorce are amicable, to ensure that it meets the court’s requirements and to ensure that it’s worded in a non-ambiguous manner.
We all like to think and hope that once an agreement is signed, whether it be a Separation Agreement or Minutes of Settlement, that this is the end of the story, and both parties can move forward with their separate lives.
This, however, is not always the case.
Oftentimes, there may be a dispute in the way in which each party interprets a section of the agreement.
There may be ambiguities or disagreements in what the obligations set out in the agreement actually mean.
When this occurs, it requires clarification from either a mediator, arbitrator, or a judge, depending on what type of dispute resolution the parties agreed to in the agreement.
When a judge is resolving a dispute or ambiguity, he/she will first examine the plain meaning of the language written in the agreement, because each word, in its plain meaning, represents your ‘intention’ at the time of signing the contract.
The court will also look at the surrounding circumstances, having regard for the objective facts rather than based on one’s subjective interpretation.
In some cases, the court may consider your actions after the agreement was signed to understand your intention behind the terms of the agreement.
It’s very important for you to know and understand the wording of your Separation Agreement or your Minutes of Settlement because these words are binding.
If you and your partner are amicable and wish to draft a Settlement Agreement yourselves, we strongly recommend that you have it reviewed by a family law lawyer prior to signing anything, to not only ensure that your agreement is fair but to eliminate any misunderstandings, ambiguities or disputes down the road.
The clearer your wording, the easier it will be to create a clear “rule book” for moving forward.
The wording of any domestic contract is very important when you find yourself going through a separation and divorce.
If a dispute arises years later, the courts will resolve it by trying to understand what that intention was when you were signing the agreement.
But conveying your intentions through the ‘plain meaning’ of ‘legal language’ may not be as simple as you think.
If you are drafting a cohabitation agreement or a prenup agreement, for example, we also strongly recommend that you have a family law lawyer assist you with the wording.
The hope is that these agreements never end up in a dispute, but if they do, it’s always best to be prepared.
At Hummingbird Lawyers LLP, our family lawyers are experienced, skilled and knowledgeable when it comes to drafting such agreements.
We understand, know and have experience with drafting Separation Agreements and Minutes of Settlement, and we can advise you on your rights and obligations under the law, as it pertains to the wording of your agreement.
Please contact our office if you have any questions or require any guidance.