Agreements after Separation: Difference between revisions

#settle the matters between them out of court through negotiation or mediation, or through some other process like arbitration or collaborative processes;

#have a judge decide what should happen, after spending a lot of money on lawyers and the litigation process; or,

It almost always better to negotiate and settle a dispute than to being a court proceeding and resolve a dispute by trial. While a settlement usually gives neither party all of what they wished for, it will give them as much of what they asked for as possible. Litigation is stressful and expensive, offers no guarantees of success, and can be extraordinarily acrimonious. A negotiated settlement is less stressful, much cheaper, and gives the parties the best chance of not hating each other at the end of the process.

==Alternatives to Separation Agreements==

====Minutes of Settlement====

#be signed by both lawyers and by both parties, although the signatures of the parties isn't strictly necessary;

#deal with each significant issue in a final manner; and,

====Consent Orders====

====Minutes of Settlement and Consent Orders====

===Other Final Agreements===

==Entering into a Separation Agreement==

===The Basic Process===

#if you are entering into an agreement which will resolve a legal problem, you must know how that agreement affects the rights you would have had if you had pressed on with a court proceeding;

#you must understand the obligations and rights you have under the agreement; and,

#it stops either party from claiming, later on, that the he or she didn't know what the agreement meant or that the party was at a disadvantage because the other party's lawyer drafted the agreement.

===If you are Negotiating an Agreement and have a Lawyer===

==Formal Requirements of Separation Agreements==

A separation agreement is a contract, in just the same way you have a contract with your employer, your landlord or the company from which you lease your car. On the other hand, it's a special kind of agreement, different from commercial contracts, because it deals with family law issues which are also discussed in the ''Family Law Act'' and the ''Divorce Act''. As a result, the law dealing with separation agreements is a blend of legislation, the common law relating to family agreements, and certain parts of the law dealing with traditional commercial contracts.

Family law agreements are also subject to other principles, princples that don't necessarily apply to commercial contracts:

==The Possible Subjects of a Separation Agreement==

The ''Divorce Act'' uses some pretty old fashioned language to talk about children, ''custody'' and ''access''. The ''Family Law Act'' talks about people who are the ''guardians'' of a child, and have ''parental responsibiities'' and ''parenting time'', and people who are not guardians and have ''contact''.

====Custody and Access====

Under s. 39(1) of the ''Family Law Act'', a child's parents are usually the child's guardians as long as they have lived together during the child's life. These parents are guardians and don't need an order or an agreement to make them a guardain. A parent who never lived with his or her child isn't a guardian unless the parent "regularly cares" for the child.  

====Parental Responsibilities====

====Parenting Time and Contact====

#the child's birthday;

#Mothers' Day and Fathers' Day;

#the parties' birthdays;

#school and religious holidays;

#extended access when there is a civic holiday or a professional development day at school;

#communication by telephone and computer, including email, instant messaging and video conferencing;

#responsibility for picking up and dropping off the child;

#school events;

#the child's extracurricular activities; and,

#birthdays of the child's friends.

===Child Support===

Child support is a monthly sum, paid by the parent who has the child for the least amount of time to the parent who has the child for the most amount of time, to defray the day-to-day living expenses of the child. The amount of child support that is paid is almost always dealt with by referring to the federal Child Support Guidelines, which sets out the amount of a parent's child support obligation in table format according to the number of children support is being paid for and the payor's income.

#state the income of each parent at the time the agreement is made;

#state the monthly child support to be paid;

#set up a system which requires the parties to exchange copies of their tax returns and Canada Revenue Agency notices of assessment each year or every other year;

#provide for a review of child support if the payor's income rises or falls; and,

The Guidelines are an extremely convenient way to calculate a party's child support obligations up to the point where the spouse paying support, the ''payor'', has access to the child for 39% or less of the time. Once the payor has 40% or more of the child's time, the Guidelines tables become less important, and child support is assessed based on, among other things, each party's income and the amount of expenses related to the child each party is paying. In the context of separation agreements, this allows for a little more flexibility in determining child support, but makes the annual exchange of financial information even more important.

===Spousal Support===

#a fixed length of time over which support will be paid, after which the payor will have no more responsibility to pay;

#an indefinite amount of time that support will be paid, with one or more dates set for spousal support to be reviewed;

#a series of graduated payments, so that the recipient receives a declining amount of support as he or she re-enters the work force;

#the termination of support if the recipient enters a new spousal relationship; or,

#the payment of support in a single, lump sum.

===The Division of Property and Debt===

The ways that a separation agreement can deal with the division of family property and family debt are virtually unlimited. Under the ''Family Law Act'', each spouse is presumed to keep the property he or she brought into the relationship and share in the property bought during the relationship. The spouses are presumed to be each half responsible for any debt incurred during the relationship. However, you can make whatever other arrangements you want, as long as you both agree to those arrangements and they're reasonably fair.

When the division of property and debt are issues, it's often helpful to exchange Financial Statements. A Financial Statement is a form set out in the Supreme Court Family Rules in which each party itemizes his or her income, assets, expenses and debts. This form can be very useful for each spouse to get a clear idea of the family's financial situation before negotiations start. You can download a blank Financial Statement in Word format, and an example of what the form looks like when it's filled out, in the _______ .

===Other Issues===

====The Parties' Future Relationship with Each Other====

#not incur debts in the name of the other party;

#not interfere with the personal life of the other party, including interfering with the other party's relationships with his or her parents, family, friends and future partners; and,

#not molest, harass or annoy the other party.

====Life Insurance====

====Undisclosed Assets====

#any property that wasn't disclosed when the agreement was executed will automatically be deemed to be owned equally by both parties;

#the party that didn't disclose the asset will have to give the other party one-half of the asset's value; and,

#the party that didn't disclose the asset will have to pay the expenses the other party incurred in finding the asset, plus a financial penalty.

==The Effect of Reconciliation==

The general rule here comes from the common law. Without a specific clause preserving some or all of the terms of a separation agreement, the agreement will be void if the parties reconcile and resume their relationship and live as a couple. This rule was upheld in a 2003 decision of the Ontario Court of Appeal, in ''Sydor v. Sydor''. In that case, the court held that unless a separation agreement contains a term to the effect that the agreement will survive reconciliation, the agreement will be void when the couple reconciles, notwithstanding a term of the agreement that it is a "full, final and conclusive settlement" of all issues arising from their relationship.

 

 

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