When you and your spouse or common-law partner legally separate in Ontario, going to court isn’t your only option for outlining your legal rights and obligations. Instead, you can create a separation agreement that outlines the terms and conditions for various aspects of your separation, such as child custody, spousal support, and property division.
While a separation agreement can provide a clear understanding of each party’s responsibilities, it is not always enough to ensure compliance. Unfortunately, violations often occur, and when they do, it can cause significant stress, frustration, and uncertainty for the affected spouse. In this blog, the team at Galbraith Family Law explains what happens when a separation agreement is violated in Ontario and what options you have to address the issue.
What is a Separation Agreement?
In Ontario, a separation agreement is a domestic contract governed by Part IV of the Family Law Act. It outlines the terms and conditions of a separation between two spouses or partners and typically covers a variety of issues, such as
Parenting Arrangements: This includes how parental decisions are made, and how much time the children will spend with each parent. How will holidays be shared? Where will the children go to school? What happens when one parent wants to relocate?
Child Support: Unless the children will be spending equal time with each parent, the basic child support amount should be determined according to the Child Support Guidelines. If the children are with both parents more than 40% of the time, then child support is calculated differently. Parents must also determine how special and extraordinary expenses, such as daycare and special needs programs, will be paid.
Spousal Support: Both parties should indicate whether spousal support will be paid. If so, how much and for how long? They may also want to specify what circumstances would cause support to end or change, such as the payor’s job loss or the recipient’s remarriage.
Property Division: The agreement should specify how net family property will be divided, whether equalization payments will be paid as a lump sum or in installments, and when these payments will be made.
Ownership of the Matrimonial Home: The agreement should indicate who will maintain possession of the matrimonial home. Sometimes, keeping the house is not financially feasible for both parties, resulting in its sale. As a result, the separation agreement should address how to handle it.
Separation agreements must be in writing, signed by both parties and witnessed to be legally binding. Although one lawyer can prepare the document, each party should seek independent legal advice beforehand to ensure they fully understand all of the terms and implications. Once signed, it becomes a legally binding document with enforceable terms.
How Can a Separation Agreement be Violated?
In Ontario, a separation agreement is like any other contract in that it can be violated if one party fails to comply with its terms and conditions. Common examples include:
Failure to pay child support or spousal support. Your spouse may become spiteful after a disagreement and decide to withhold support payments as ‘punishment.’
Failure to comply with the parenting arrangements. This could include refusing to allow the children to be with the other parent during their time or not making decisions about the children in accordance with the separation agreement.
Failing to transfer property or assets or make equalization payments as outlined in the agreement.
When this happens, you may need to take legal action to enforce the agreement and hold your former spouse or partner accountable for their misconduct.
Violation of a Separation Agreement- The Consequences
Violation of a separation agreement can have serious consequences. While the outcome will depend on the specific violation, here are some of the possible consequences:
Legal Action: If your former spouse or partner violates any terms of the separation agreement, you may have to take legal action to enforce it. This could involve going to court, attending mediation, or negotiating to resolve the issue.
Loss or Change in Parental Rights: If they violate the parenting arrangements outlined in the separation agreement, they may lose their rights. This can be a severe outcome for them and your children.
Financial Penalties: Some violations may result in financial penalties, such as fines or compensation for any losses you incur as a result.
Damage to Credit Rating: If they violate any financial obligations in the agreement, such as failing to pay child or spousal support, it can damage their credit rating when you take legal measures to collect the money.
Contempt of Court: If your former spouse or partner violates the terms of the separation agreement after a court order has been issued, they can be found in contempt of court. This can result in fines, imprisonment, or other legal penalties.
If your ex is violating your separation agreement, it’s recommended that you speak with a Toronto family lawyer who can guide you through the legal process and help you protect your rights.
Helping the Affected Spouse: Your Options After a Violation
Your ex has failed to pay child support or refused to sign certain property over to you despite an earlier agreement to do so. When this happens, you can feel helpless as well as frustrated and angry. What can you do to make them comply or obtain an appropriate remedy?
Fortunately, you do have options after a violation of your separation agreement. Once you’ve reviewed the document again to confirm that its terms have indeed been breached, you can take any of the following steps:
Talk to Your Ex: Try to have an open and honest conversation with your spouse about the violation. Sometimes misunderstandings can lead to violations, so it’s important to hear their perspective. However, if the violation was severe or deliberate, talking it out may not be an option.
Seek Mediation: If talking to your spouse does not resolve the issue, consider seeking mediation with a neutral third party. A mediator can help the two of you work together to find a solution that works for both of you. Next to a candid discussion with one another, this can be the best option because it may help you preserve your co-parenting relationship.
Take Legal Action: If necessary, you can take legal action to enforce the separation agreement. This may involve filing a motion with the court, which could result in your spouse being found in contempt of court, facing fines, or even jail time.
Your Toronto divorce lawyer can review your current situation with you and recommend the best course of action based on your unique circumstances. By providing objective advice that’s free of emotional biases, they can help you make informed decisions about your next steps.
What Are the Legal Implications of a Breach of Agreement?
When your ex violates your separation agreement, the consequences can be highly damaging to you and your children. Failure to pay child support, for example, deprives the children of the financial resources they need, while interfering with a fair property division could leave you with less than you are legally entitled to. This is why there are often-severe legal implications when a separation agreement is breached.
If the parties have children and one is not complying with the parenting arrangements set out in the separation agreement, the other may seek a change those arrangements.
If the breach involves a failure to pay child support or spousal support, the recipient may seek enforcement through the Family Responsibility Office (FRO), a provincial government agency responsible for enforcing support orders and agreements. This can result in the payor’s driver’s license being suspended or even jail time.
If you believe your spouse has violated your separation agreement, it’s important to seek legal advice from a Toronto family lawyer who can advise you on your options and help you take appropriate legal action.
Protect Your Rights- Hire a Lawyer
An Ontario family lawyer can play a crucial role in the enforcement of a separation agreement. Here are some ways in which they can help:
Reviewing the Agreement: A family lawyer can review your separation agreement to ensure that it is legally binding and enforceable. Those who downloaded DIY kits or templates may run into problems here, which is why legal advice is always recommended for domestic contracts.
Identifying Breaches: If your spouse has violated the terms of the separation agreement, your lawyer can determine the breaches and help you understand your legal options.
Negotiating a Resolution: In some cases, it may be possible to resolve the breach of the separation agreement through negotiation. A family lawyer can help you negotiate a resolution that protects your rights while remaining fair for both parties.
Filing a Court Application: If negotiation fails, a family lawyer can help you file a court application to enforce the separation agreement. This may involve seeking a court order for specific performance, damages, or other relief.
Representing You in Court: If your case goes to court, your separation lawyer can represent you and advocate for your interests before a judge.
A skilled and capable Toronto family lawyer can provide the legal guidance and representation you need to enforce your separation agreement more effectively. When your ex refuses to cooperate, call a law firm with a reputation for integrity and results.
Has Your Ontario Separation Agreement Been Violated?
An agreement is meant to simplify your legal separation, but when one party doesn’t abide by the terms, the outcome can be stressful and complicated, especially for the children. If this happens to you, you deserve to work with a separation lawyer who has your best interests at heart.
At Galbraith Family Law, we understand the stress and frustration that comes with a breach of a separation agreement. Our team of knowledgeable family lawyers knows what’s at stake for you and will work tirelessly to achieve the outcome you need. To schedule a consultation, please call 647-370-8965 or contact us online. We also serve clients in and around Barrie, Newmarket, Oakville, and North York.
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