Canada: The Dangers Of The Online Separation Agreement

Last Updated: March 23 2017
Article by Ira Marcovitch

In the age of the internet, the law is (at varying speeds) adapting to the online realities of the people it applies to. People can now file their taxes, issue small claims court applications and, most recently adjust some child support orders, at the click of a button. With the advent of websites such as lawdepot.ca and other sites which offer templates for legal contracts, people have started turning to the web to construct separation agreements. However, these agreements are no substitute for agreements crafted by experienced lawyers, and people should be aware of the very real dangers of relying on these agreements before using them.

In Ontario, separation agreements, marriage contracts and cohabitation agreements ("domestic contracts") are all subject to the same legal requirements. There are strict rules about the process for concluding an agreement, and the language contained in the agreement, that must be followed if the agreement is to be legally valid enforceable. In no uncertain terms, the strength of a domestic contract is dependant on how it was reached and the language it uses.

The 'Click-Click-Print' Method Doesn't Fulfill the Requirements for Negotiating a Domestic Contract

In Ontario, domestic contracts must comply with the rules applicable to all contracts. They must be in writing, signed and witnessed by the parties, must not contain illegal terms, and must be made without undue influence or duress. The first few conditions are simple, and can be satisfied by a downloadable agreement. While many people believe that short of openly forcing someone to sign an agreement means there is no duress, this is not the case. In terms of domestic contracts, duress can arise from unequal bargaining power (one party is better educated or more affluent than the other) or from situational factors (e.g. if a marriage contract is signed only weeks before a wedding).

The best way to ensure that an agreement is not vulnerable to challenge based on duress or undue influence is to have a lawyer represent both parties during the negotiation of the agreement. Judges believe that lawyers provide a 'buffer' between the parties and can work to mitigate many types of duress or undue influence. Lawyers will typically negotiate the agreement in writing (such as through emails or letters between them), and this can be important evidence if the agreement is challenged later on.

With online agreements, there is no buffer between the parties. There is no written record of negotiations or any evidence that possible sources of undue influence or duress were identified and addressed. Judges will assume that there was little to no negotiation about the agreement. If this is what the judge believes, it is very likely that the agreement will be set aside.

The Language is Online Agreements is Basic, Not Comprehensive, and Not Creative

No two families are the same and, because of this simple fact, no two domestic contracts are the same. When spouses marry, cohabit or separate, their circumstances are unique, and any domestic contract has to take account of this. Unfortunately, online agreements are 'boiler-plate' and the language is drafted in such general terms as to apply to as many people as possible.

The limitations of using these agreements is apparent – you are limited to including the terms that the website provides and in the language it uses. There is no room for crafting an agreement that works best for your family. This is why it is always recommended that you have an agreement drafted by an experienced family lawyer, who can advise as to what form of agreement will work best for you and your family. There is no substitute for this.

As well, the generality of the language in these agreements can make parties vulnerable if the agreement is challenged. Experienced family lawyers are aware of recent and important cases about domestic contracts, and craft contracts to reflect what these cases say about how contracts should be worded. For instance, the clause for waiving spousal support in the lawdepot standard separation agreement is six lines long. Most clauses drafted by lawyers are over a page, and include specific language to consider the cases to which I just referred. Without this protection, a lawyer could easily challenge the agreement and have it set aside.

The Final Word

Domestic contracts are like insurance policies – they are contracts entered into to protect oneself against a future liability, be it disability from a car crash or spousal support from a divorce. Just like insurance policies, the value of a domestic contract is not when it is signed, but is years down the road when an issue arises. Just as one should want to make sure their insurance policy is valid and enforceable, they should want their domestic contract to be airtight. Unfortunately, online agreements just don't get there.

Many people don't see the need to hire a lawyer to help them draft an agreement. They think an online agreement is sufficient and, let's be honest, most people don't enter into these agreements believing they will ever be used; most people don't buy home insurance because they expect their home will burn down. This can be a costly mistake. Without a properly negotiated and worded contract, people are exposed. They can lose hundreds of thousands of dollars in property and be liable for years of support if agreements are set aside. The up-front cost of hiring a lawyer to do the agreement properly is minimal in comparison.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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