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Difference between revisions of "Family Law Agreements"
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→Negotiating considerations
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<blockquote>"One party may have power and dominance financially, or may possess power through influence over children ... often both contracting parties are vulnerable emotionally, with their judgment and ability to plan diminished, without the other spouse preying upon or influencing the other. The complex marital relationship is full of potential power imbalance."</blockquote> | <blockquote>"One party may have power and dominance financially, or may possess power through influence over children ... often both contracting parties are vulnerable emotionally, with their judgment and ability to plan diminished, without the other spouse preying upon or influencing the other. The complex marital relationship is full of potential power imbalance."</blockquote> | ||
In a 2009 case, ''[http://canlii.ca/t/22hw5 Rick v. Brandsema]'',[2009] 1 SCR 295 the Supreme Court of Canada added another factor to this list, incomplete or misleading financial disclosure. In this case, the court noted that parties can only give genuine and informed consent to an agreement if they have the information they need to decide if the agreement is acceptable. | In a 2009 case, ''[http://canlii.ca/t/22hw5 Rick v. Brandsema]'', [2009] 1 SCR 295, the Supreme Court of Canada added another factor to this list, incomplete or misleading financial disclosure. In this case, the court noted that parties can only give genuine and informed consent to an agreement if they have the information they need to decide if the agreement is acceptable. | ||
Potential unfairness, then, can come from: | Potential unfairness, then, can come from: | ||
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*'''Independent legal advice:''' Make sure everyone has legal advice about the meaning and consequences of the agreement from their own lawyers. Have the lawyers who provided the independent legal advice witness the parties' signatures on the agreement, and sign certificates of independent legal advice. | *'''Independent legal advice:''' Make sure everyone has legal advice about the meaning and consequences of the agreement from their own lawyers. Have the lawyers who provided the independent legal advice witness the parties' signatures on the agreement, and sign certificates of independent legal advice. | ||
*'''Respect vulnerabilities:''' Stop negotiations when someone is too upset to continue or appears to be compromised in any way. If there is any doubt that a party is not in their right mind, | *'''Respect vulnerabilities:''' Stop negotiations when someone is too upset to continue or appears to be compromised in any way. If there is any doubt that a party is not in their right mind, respectfully stop the negotiation and come back to the table later. Consider the need for counselling or therapy before continuing. | ||
*'''Make full disclosure:''' Always make full disclosure of all financial facts, whether disclosure has been requested or not. Have documentation available of current income, past income, bank and investment <span class="noglossary">account</span> balances, outstanding debts, property values, values of shares and options, art and jewelry appraisals, and so on. | *'''Make full disclosure:''' Always make full disclosure of all financial facts, whether disclosure has been requested or not. Have documentation available of current income, past income, bank and investment <span class="noglossary">account</span> balances, outstanding debts, property values, values of shares and options, art and jewelry appraisals, and so on. | ||
*'''Never lie:''' Intentionally misleading someone about the value of something, the amount of a debt, past income and future income expectations, or any other relevant fact will always undermine the strength of an agreement. Be scrupulously honest and transparent at all times. | *'''Never lie:''' Intentionally misleading someone about the value of something, the amount of a debt, past income and future income expectations, or any other relevant fact will always undermine the strength of an agreement. Be scrupulously honest and transparent at all times. | ||