Agreements after Separation: Difference between revisions

Issues about parenting after separation are covered by the federal ''Divorce Act'' for married spouses and by the provincial ''Family Law Act'' for married spouses, unmarried spouses and other unmarried couples.

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 ''guardians'' STOPPPED

====Custody====

There are two basic types of custody available, sole custody and joint custody. Sole custody is fairly rare, and is usually only appropriate where the parties are constantly at each other's throats or where one party expects to be absent from the child's life. Joint custody is far more common than sole custody. In this situation, both parents are custodians of the children.

====Guardianship====

Like custody, guardianship can be held solely by one parent or held jointly by both. A parent who has sole guardianship of a child is entitled to make all sorts of decisions affecting the child's life without the necessity of seeking input from or getting the agreement of the other parent. Where the parties share joint guardianship of the child, they each have responsibility for managing the child's life, from the choice of the child's school, to the manner of the child's religious education, to selecting the child's medical treatment in case of illness.

Joint guardianship is the most common form of guardianship. Sole guardianship is usually only appropriate where:

a parent has absolutely no interest in raising his or her child or being a part of the child's life; or,

the parents simply can't get along well enough to talk civilly about the child.

When guardianship is shared, it is a good idea to spell out exactly how the parties will share their responsibilities in a little more detail than simply saying "Jane and John will share joint guardianship." The Joyce model and Horn model of joint guardianship, the two most common expanded definitions of joint guardianship, are described and available for download in Word format in the chapter Children > Guardianship.

Access can mean the child's general parenting schedule, although it is usually used to describe the parenting time of the parent with the least amount of time with the child. The terms of a parent's access can be very specific or, where the parties get along exceptionally well with one another, the terms can be as vague as "Jane will have liberal and generous access to the child."

If there has been a history of difficulty exercising access or there is even a smidgen of conflict between the parties, it can be terribly important to spell out access to avoid future arguments. The terms of access usually spell out when the parent will see the child on a week-to-week basis, such as "John will have the child from Friday at the end of school to the following Sunday at 7:00pm, every other week, plus each Wednesday from the end of school until 7:00pm." They can also take into account:

the child's birthday;

Mothers' Day and Fathers' Day;

the parents' birthdays;

school and religious holidays;

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

contact 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.

See the chapter Children > Access for more information.

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 which 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,

provide for the recalculation of the parties' shares of the cost of the child's special expenses if either party's income rises or falls.

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.

See the section Child Support for more information. Child Support > The Guidelines has calculators for child support and children's special expenses.

Spousal support is paid by one party to the other to help defray the recipient's day to day living expenses. A separation agreement which provides for the payment of spousal support should be negotiated bearing in mind all of the things the court would have considered in making an order for spousal support. Of course, when a separation agreement is being drawn up, the amount of spousal support payable, if any at all, is the product of the parties' negotiations.

 

 

In some situations, of course, permanent support may well be required, especially if the relationship was lengthy or if the recipient is unlikely ever to become self-sufficient.

Some agreements also provide that no spousal support will be payable. If you are the spouse who would ordinarily be entitled to receive support, you must be confident that the agreement fair as it may prove very difficult to obtain support later on if your personal circumstances change.

Calculating the amount of support to be paid used to depend almost wholly on the recipient's reasonable monthly needs and the payor's monthly disposable income. In January 2005, the federal Department of Justice issued the first draft of an academic paper that describes mathematical formulas to calculate how much support should be paid and for how long. This paper, the Spousal Support Advisory Guidelines, has been warmly received in British Columbia and is commonly used by lawyers and judges to calculate spousal support, whether the issue is being litigated, mediated or negotiated.

The major problem with the Advisory Guidelines is that the Department of Justice has thus far failed to make spousal support calculators available to the public, and you may want to consult a lawyer who has access to spousal support software to see what the formulas say in your case.

See the section Spousal Support for more information about spousal support in general. The chapter Spousal Support > The Advisory Guidelines talks about the Advisory Guidelines in more detail and has a link to a website where the paper can be downloaded.

===The Division of Assets===

The ways in which a separation agreement can deal with the division of family assets are virtually unlimited. Some spouses are willing to walk away from a relationship with only those assets held in their own names; in some circumstances, however, this would be grossly unfair and a division of some or all of the assets is required.

Where assets are an issue, 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 their income, assets, expenses and debts. This form can be extremely useful for each spouse to get a clear idea of the exact financial situation of the other before any property-related 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 downloads segment of The Legal System > Starting an Action.

The ways that assets can be divided in separation agreements are almost limitless, and depend entirely on the circumstances of each party, the length of the relationship and whether the parties are married or unmarried. Some people take what they brought into the relationship and divide the things bought afterwards; some people sell everything and divide the proceeds; others allot certain assets to each spouse and equalize the value of what each is taking; some people divide their assets equally and others do not. Regardless of how the assets are divided, however, don't forget to account for shared debts and remember that pension plans and RRSPs are family assets that married spouses have an entitlement to!

 

Remember that the rules that apply to dividing assets between married couples do not apply to unmarried couples, who only have a presumptive interest in assets that they both own. What is fair for a married couple is unlikely to be fair for most unmarried couples, except perhaps for couples involved in very, very long relationships.

 

See the section Family Assets for more information.

Arrangements for the care and control of children, the payment of support and the division of family assets are the most common issues that come up in family law. There are a whole host of other issues which couples may have to deal with, including some that can only be dealt with in separation agreements.

====The Parties' Future Relationship====

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.

Some separation agreements will also describe what will happen if the parties reconcile with each other. Most often an agreement will simply say that it becomes a marriage agreement or a cohabitation agreement if the parties reconcile and that it will not cease to be in effect simply because of the reconciliation.

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 costs the other party incurred in finding the asset, plus a financial penalty.

 

When a debt won't be paid out, it is essential to do two things: allocate responsibility for the debt; and, provide that the party keeping the debt will preserve the other party from any financial consequences of that debt.