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When a couple separates, they can use the legal system to settle their issues or they can settle issues privately. Not all couples need to use the courts when they separate.

Settling your issues when the relationship ends

It is useful to learn about the law or get legal advice to help you understand your rights and responsibilities.

How you choose to settle your legal issues will depend on your individual situation and on the relationship you have with your spouse at the time of separation. If you already have a signed cohabitation agreement or marriage contract, you should refer to that document first.

If the issues that you need to settle are simple, you and your ex may be able to reach a verbal agreement or write a separation contract. You may also choose to ask people whom both of you trust to help you negotiate an agreement. Some couples look to family members, religious leaders, or other trusted community members for assistance and guidance.

Writing a separation agreement

A separation agreement is a signed written document that says how a couple has agreed to divide property and what to do with the matrimonial home. It can also outline the terms of spousal support, child support, and custody and access issues. A separation agreement is written when the relationship ends.

To be legal, a separation agreement must be in writing, it must be signed and it must be witnessed. You don't need a lawyer to write a separation agreement but it is best to get legal advice so that you can find out what the law says you are entitled to.

Negotiating a separation agreement is not a good idea if one person has a lot of control over the other, and/or there is a serious power imbalance in the relationship. Women should not agree to a separation agreement if they feel their spouse has more power than they do, if their spouse is abusive, or if they cannot talk honestly and openly with them. In these cases women should talk to a lawyer. For help finding a lawyer see Where to get help when you need it.

What to include in your separation agreement

Areas to cover	Details to include
Full legal name of all spouses
Date you started living together as spouses, or the date you got married
Full legal name and date of birth of any children
The address of the matrimonial home, or any places where you live together as a couple
How do you want to divide property?	List the specific items that will go to each spouse Will one spouse pay the other spouse a lump sum for the value of property? Who will care for each pet?
How do you want to divide debts?
Will one spouse pay spousal support?	How much support will be paid? Will support be a monthly amount, or a lump sum payment? How and when will the money get from one spouse to another (post dated cheque, electronic transfer, money order)?
Will one spouse pay child support?	How much child support will be paid each month? When will child support end? Who will pay for extra expenses? Who will pay for post-secondary education for the children? How will the money be exchanged? How will child support change as the children get older?
Who will have custody of, and access to the children?	Will the parents share joint custody? Will one parent have sole custody and the other parent have access rights? What will the access schedule be? How will the children move between homes? Who will make major decisions about the children's health, education and religious upbringing? How will the children spend their holidays? How will parents decide on the children's vacation schedules?
Who will care for the children if both spouses die?	Names of guardian and alternate guardian
What process will you use to resolve any disagreements that happen when you interpret the agreement?	Will mediation and arbitration be used? Will there be a timeline for discussions?
Did the spouses have legal advice when they wrote the agreement?	Names and contact information of lawyers involved

How to settle disagreements

When spouses separate and can't agree about money matters there are a number of ways that they can settle the issues. Most separated spouses, or parents of children, do not go to court to agree about financial matters. It is often simpler and cheaper to decide on the terms of how to separate if you do not have to go to court. Mediating or negotiating an agreement can give you more control over important aspects of your life. These options can also be used for parents making decisions about child support.

Mediation

If you and your ex can't agree about what to include in a separation agreement, you may decide to go through mediation. In mediation a neutral professional called a mediator will help you talk to one another and make decisions together.

A mediator can help you agree about some or all of the issues you need to resolve. Sometimes the mediator will talk to both of you in the same room. Other times you may decide it is best to be in different rooms and have the mediator go back and forth between you. If there is a power imbalance in the relationship, or if you find it hard to talk to your ex, you may choose to not be in the same room as them during mediation.

Mediation can give former spouses more control over the separation agreement because spouses will be working together to decide how to settle issues. However, mediation doesn't always succeed. If mediation isn't helping the couple to reach an agreement, either spouse can decide to end the process. If this happens, you can go to court.

Mediation is not always a good choice for spouses with a history of abuse or where one spouse feels they don't have much power. It is difficult to negotiate with someone when there is a strong power imbalance. Under these circumstances you may choose an option like arbitration or going to court, because these options don't require you to negotiate with your ex.

Family courts in Ontario offer some free mediation services. For more information about this, contact a Family Law Information Centre, or a Family Law Service Centre. See Where to get help when you need it.

You can also hire a private mediator. For a list of private trained professional mediators, and for more information about mediation, contact the Ontario Association for Family Mediation at www.oafm.on.ca or call 1-800-989-3025. It is also possible to agree on another type of mediator that you trust like a religious leader or a community leader.

If you decide to use mediation, talk to a lawyer before you start. A lawyer can make sure that you know your financial rights and responsibilities.

Arbitration

If you and your ex can't agree on some issues either by negotiating or at mediation, you can hire an arbitrator to decide things for you. When an arbitrator makes a decision, it is legally binding. This means that if you decide to use arbitration, you must obey what the arbitrator decides. Also, unlike mediation, once an arbitration process begins you can't change your mind and decide not to continue with the process.

For an arbitration to be legally binding it must follow Canadian laws. An arbitration decision award that follows religious or cultural laws, and doesn't follow Canadian law, is not legal or enforceable.

Arbitration can be expensive. Before an arbitrator will work with you, you must prove that you got legal advice. This means that arbitration involves hiring a lawyer, and paying the arbitrator.

You can hire a lawyer to give you advice, or to represent you at the arbitration hearing. Legal Aid Ontario does not usually pay for lawyers to help with arbitration. For information about arbitrators contact a Family Law Information Centre. See Where to get help when you need it (p.49).

Collaborative Family Law

Collaborative Family Law is a formal process where you and your ex each hire a lawyer to help you settle your issues. Together with your lawyers, you and your former spouse work together to find solutions. This process can be expensive because both spouses must work with a lawyer. Legal Aid Ontario does not usually pay lawyers to do this work. Collaborative Family Law is not a good choice for spouses with a history of abuse, or where one spouse feels that they don't have much power because you must work together to find solutions.

Collaborative Family Law can be cheaper and faster than going to court because the lawyers who do this work are committed to negotiating an agreement instead of arguing in court.

If you can't come to an agreement using Collaborative Family Law, you must hire a different lawyer to represent you in court.

Going to court

You may have to go to court and ask a judge to settle the financial issues from your separation. Going to court is a good idea if:

• You and your ex can't agree about how to resolve your issues
• Your partner is abusive
• You feel you don't have much power in the relationship
• Your spouse refuses to communicate with you or is being unreasonable
• Your spouse is refusing to give you details about their finances

Going to court can be a lengthy process and can cost a lot of money because there are lots of rules and paperwork. The court process requires each side to prove everything that they say using documents or witnesses. Going to court is also a very adversarial process because the other side will try and prove you're wrong.

If you go to court, it is highly recommended that you hire a lawyer to represent you. Legal Aid Ontario does offer some funding that you can use to get advice or to be represented in court. If you can't afford to hire a lawyer and you can't get Legal Aid to hire a lawyer, you should still talk to a lawyer to get legal advice on your case.

For information about how to find a lawyer, contact the Lawyer Referral Service at 1-800-268-8326. To find out more about Legal Aid or to apply for funding call 1-866-641-8867 or visit the Legal Aid website.