In Ontario, common law partners who decide to separate may wonder whether they can draft a legally binding separation agreement without the involvement of a lawyer. While it is possible to create such a document independently, there are several important factors to consider to ensure that the agreement is enforceable and serves its intended purpose.
Legal Requirements for a Separation Agreement
Under Section 55(1) of the Ontario Family Law Act, a separation agreement must meet specific criteria to be considered valid. The agreement must be in writing, signed by both parties, and witnessed. These formal requirements are essential, but they are only the first step in creating a binding and enforceable agreement.
Judicial Considerations and Enforceability
Even if a separation agreement meets the basic legal requirements, there are additional factors that a judge will consider when deciding whether to enforce the agreement. As outlined in Section 56 of the Family Law Act, a judge has the authority to disregard certain aspects of a separation agreement, particularly those related to child custody, access, and support, if they are not consistent with the Child Support Guidelines or the best interests of the children involved.
One of the most critical sections to consider is Section 56(4) of the Family Law Act, which allows a judge to set aside a separation agreement if it is determined that one party did not fully understand the agreement’s terms. The evidence that judges often look for in such cases is whether each party received independent legal advice before signing the agreement. Without this advice, the agreement may be deemed unenforceable.
The Role of Independent Legal Advice
Independent legal advice plays a crucial role in ensuring that a separation agreement is binding and enforceable. Judges frequently refuse to enforce agreements that do not include Certificates of Independent Legal Advice, which serve as proof that both parties understood the agreement’s terms and implications. A lawyer can also help identify and avoid potential problems, such as unfair terms or a lack of clarity, which could render the agreement invalid.
The Risks of Drafting an Agreement Without Legal Counsel
While it is possible for common law partners to draft their own separation agreement, doing so without legal counsel carries significant risks. Many individuals may not fully understand their legal rights and obligations under Ontario Family Law, leading them to agree to terms that are unfair or disadvantageous. A lawyer can provide valuable guidance on these matters, helping to ensure that the agreement is fair and complies with legal standards.
Conclusion
Although common law partners can technically create a separation agreement without a lawyer, doing so is fraught with potential pitfalls. To ensure that the agreement is legally binding and provides the intended protection against future disputes, it is highly advisable to seek independent legal advice. A lawyer’s expertise can help avoid common mistakes and ensure that the agreement stands up in court, providing both parties with the certainty and security they need moving forward.
Learn more about how we can assist you in common law matters or contact us to schedule a consultation and discuss your specific situation in detail.
416-446-5837
416-446-5837
katelyn.bell@devrylaw.ca
