There are only two ways in which the issues arising on a separation may be resolved:
through the negotiation of a separation agreement; or
through proceedings in court.
By Ontario law, a separation agreement can resolve all issues (eg. custody, access, support, division of property) except for a divorce. A divorce can be obtained only by application to court. If it is specifically provided, the terms of a separation agreement will survive divorce. After a separation agreement has been signed, either party may apply for a divorce, usually uncontested by the other.
The merits of negotiating a separation agreement include these:
it is typically cheaper and quicker; and
the parties have control (as may be limited by law) over the terms of their separation.
However, arriving at a successful separation agreement requires that each of the parties negotiate in good faith and with a willingness to compromise. If these are not present, efforts will be fruitless.
While the negotiation of a separation agreement is most often conducted through the parties’ own lawyers, in some cases it may be appropriate to employ mediation or the collaborative law process.
Resolution of issues arising on separation through court proceedings will be appropriate where:
there is significant urgency;
one of the parties is unlikely to negotiate in good faith and with a willingness to compromise;
efforts to negotiate a separation agreement have failed or have stretched to an undue length of time; and
there are difficult legal or factual issues that are best left to a judge.
Photo: Frederick Agustin: Flickr Creative Commons License. Cropped; sharpened.