Written by Colin A. Steffler
Just as there are many “do-it-yourself” kits for Wills and Powers of Attorney available, there are a number of websites that offer templates for Separation Agreements. Often these are advertised as being free to use and some claim to take only 5-10 minutes to complete. Just fill in the blanks and in a few minutes, you’re good to go – with no legal fees and no delay. With such a minimal investment of time and money involved, it may be tempting to rely on one of these templates. There are, however, a number of potential problems and risks that could arise from doing so.
Did you include a signature page?
In Ontario, domestic contracts (including Separation Agreements) must meet certain formal requirements to be valid. Specifically, section 55(1) of the Family Law Act (“FLA”) provides that domestic contracts must be in writing, signed by the parties, and witnessed. If a Separation Agreement doesn’t satisfy these requirements, it may be unenforceable. While these requirements may seem simple enough to meet, it is far from unheard of for parties who draft their own agreement, or rely on a template, to miss one or more of these criteria.
Even if it does meet these formal requirements, a Separation Agreement, or portions of it, could be unenforceable for other reasons. If, for example, an agreement includes a “waiver” of child support, or terms that are otherwise in conflict with the Child Support Guidelines, these may be set aside or disregarded by a court, and you could end up having to pay support on a retroactive basis. Similarly, if an agreement purports to include a waiver of spousal support, but that waiver isn’t expressed clearly or fully enough, it may not be sufficient to prevent or defeat a future claim for spousal support.
Boilerplate Doesn’t Suit Everyone
One of the biggest problems with a standard-form template agreement is that it isn’t geared to your specific situation. Rather, it is made to suit what is “typical” or what “most people” need – but what if you aren’t “most people”? That boilerplate agreement might not include everything that should be included to address the issues in your particular case; or, conversely, it may include terms that are inappropriate or unnecessary in your case. Without consulting a lawyer, you may not realize that some much-needed terms are missing, or you could end up agreeing to something without realizing or fully understanding what it is that you’re agreeing to.
Do you know where your template is coming from?
Another problem with online templates is that you may not know exactly where they are coming from.
In Canada, jurisdiction regarding family law matters is divided between the federal and provincial governments, and while family legislation is fairly similar between the common-law provinces (i.e. provinces other than Quebec), there can be significant differences. The differences between Canadian and American legislation are even more significant. If you rely on a template that is designed for use in another province, or in a US state, it may refer to legislation or legal principles that don’t exist in Ontario, or it may use legal terms that are either not used here or are used in a different sense. Again, this could result in you reaching an agreement that: (a) is unenforceable, (b) doesn’t include what it should, or (c) includes terms you didn’t intend to agree to.
Cutting Costs Now, Only to End Up in Court Later
Finally, under section 56(4) of the FLA, courts have authority to set aside a Separation Agreement if either party failed to disclose significant assets or liabilities when the agreement was made, or if a party didn’t understand the nature or consequences of the agreement. This means that if a Separation Agreement is prepared without any exchange of financial disclosure between the parties, and without any independent legal advice, there is a significant risk that it could be challenged and overturned in the future. In other words, using that template might save you some money in the short-term, but there is a chance you could face considerable court costs down the road.
Not All Bad
This does not mean that using an online template for any purpose is inevitably going to end in catastrophe. If you and your former partner are on reasonably good terms and looking to resolve things amicably, reviewing a sample Separation Agreement may help guide your discussions and bring to your attention issues you might otherwise not have considered. That said, before signing off on anything you come up with yourselves, with or without using an online template, it is a good idea for both parties to seek independent legal advice and have any draft agreement reviewed by a lawyer to ensure it complies with Ontario law.