A separation agreement provides both spouses with control over the separation process in Ontario. In Canada, there is no legal requirement for a separation agreement before a divorce or separation, however, creating a separation agreement allows for both parties to outline their desires in the divorce or separation and come to an agreement on the division of assets and other duties such as child support. This can be beneficial to prevent disputes and ensure that both spouses are satisfied with the separation. So, what can you do if your spouse or partner will not sign a separation agreement in Ontario?
Since a separation agreement is not mandatory for divorce or separation there is no requirement for you and your spouse to sign the separation agreement. However, if you have negotiated a separation agreement with your spouse and they are refusing to sign, the first step is to speak with a lawyer if you have not already acquired one for the separation agreement. An experienced lawyer can help you understand your rights and responsibilities when creating a separation agreement. While it may seem daunting, if your spouse refuses to sign a separation agreement you may need to start legal proceedings.
Steps to prevent legal proceedings: Collaboration
Since the separation agreement is meant to be a contract that is favourable to both spouses in the separation, finding a way to negotiate with your spouse can be beneficial to both parties. This process is the least disruptive and can be favourable to both parties. Both parties’ lawyers can discuss what is preventing your spouse from signing the agreement and may allow your lawyers to discover a solution that eventually leads to your spouse signing the separation agreement. This process leads to a mutually beneficial separation agreement without the added pressure of taking legal action.
Mediation is a further measure to create a separation agreement through collaboration. If both parties and their lawyers cannot agree, a mediator may act as an impartial party that helps the creation of the separation agreement. The mediator is a go-between, representing neither party individually to allow for negotiations. A mediator can be beneficial in creating an agreement based on collaboration and compromise that results in both parties being satisfied with the result. If this process does not work, you may need to involve arbitration or have your lawyer take your dispute to court to ensure you are being properly represented.
Next Steps: Legal Action
If a separation agreement cannot be negotiated between both parties, an arbitrator can make a legal decision for both parties. While this process may be necessary if a separation agreement cannot be negotiated otherwise, it is important to understand that once arbitration has started, both parties must adhere to the final decision. Speaking to a lawyer about the benefits and risks of arbitration for your unique situation may be beneficial in deciding if arbitration is right for your separation.
Before starting the arbitration process both parties must seek legal advice from a lawyer for the arbitration to be enforceable in court. This step is important to ensure that you are being properly represented and to ensure that the decision can be legally enforced. The process of arbitration requires that both parties tell their side of the story to the arbitrator who is the neutral party that acts as a sort of judge. Once both spouses have represented their sides, the arbitrator will decide what the outcome should be. This decision is called an award which represents the separation agreement.
Going to Court
Finally, if arbitration is not right for your separation you will need to take your dispute to court. This can be a disruptive and lengthy process which often results in a tense outcome. However, if your partner is unwilling to negotiate, this process will result in a fair decision.
Speaking to an experienced lawyer about your separation can help you decide what is the best option for creating a separation agreement.
This blog is made available by the law firm publisher, Epstein & Associates, for educational purposes. It provides general information and a general understanding of the law but does not provide specific legal advice. Any specific questions about your legal concerns please contact us now and speak to an expert today.