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Past Conduct of Parents in Determining Custody and Access

Can the Past Conduct of a Parent be Used to Determine Custody and Access?

I have had clients in the past come to me with this question wondering if they could use the behaviour of their former spouse as evidence that custody or access should be limited as a result of their actions. While this could be true, generally it will only matter where those actions have an effect on their ability to parent the child.

Let’s look a little closer at what this actually means.

First, we need to have a refresher on the “Best Interests of the Child” under s. 24(2) of the Children’s Law Reform Act (“CLRA”). From here, we can now look at how past conduct of a spouse may be factored into that list under s. 24(2).

24(3) of the CLRA shows us that past conduct can be considered but ONLY in relation to custody or access and ONLY THEN in accordance with s. 24(4) of the CLRA. The language in these sections identifies that the conduct will be considered only if the conduct is relevant to the person’s ability to act as a parent (s. 24(3)(b)), and also if there was violence or abuse against the spouse, parent of the child, member or persons’ household, or any child (s. 24(4)).

Keep in mind that anything done in self-defence or to protect another person does not fall under this category of violence or abuse mentioned above (see. S 24(5)).

The Divorce Act (“DA”) also makes mention of these issues under s. 16(9), where again they show that the past conduct is not relevant unless it affects the persons’ ability to act as a parent.

Let’s take adultery as an example.  Somerville v. Somerville is one such case where the extra-marital affair of the husband resulted in the end of the marriage.  What the court found was that the affair only spoke to the husband’s ability as a spouse, NOT his ability to act as a parent to his child.  Therefore it was not a relevant consideration when determining custody or access.


Relevant Parental Conduct

When determining custody or access, courts start with relevant parental conduct to determine who the custodial parent would be and who would be entitled to access.  These initial relevant considerations could include, but is not limited to:

  1. Who has been making the decisions for the child?
  2. How often does the child see each parent currently?
  3. Who prepares the food and clothing for the child?
  4. Who arranges after school activities etc?

Adjusting Terms of Access

After the initial assessment, courts will then see if the conduct of the parents should be considered to see how the terms of access might change such as: frequency, duration, supervision, overnight access, or even if access should be denied.

To support this analysis under s. 24 of the CLRA, Justice Dunn in T.(R.R.) v. T.(G.) considered the use of additional factors:

  1. the non-custodial parent’s acceptance of the custodial parent’s responsibility for the child’s discipline and conduct;
  2. the non-custodial parent’s punctuality, attendance and behaviour on access visits;
  3. the non-custodial parent’s attempts to keep informed of the child’s current events, health and achievements;
  4. the non-custodial parent’s attempts to help the child adjust to returning to the custodial parent; and
  5. the non-custodial parent’s sensitivity to time limitations on the visit.

Sample Case T.(R.R.) v. T.(G.)

In T.(R.R.) v. T.(G.),  the father was denied access because he:

  1. Repeatedly showed up for visits drunk;
  2. Left multiple threatening messages on the mother’s answering machine;
  3. Acted inappropriately during his access visits;
  4. The children didn’t want to visit with the father; and
  5. The children were in a better emotional state when they did not see the father.

Here we can clearly see that the conduct of the father was directly affecting his ability to parent the children.

As a final note, I would like to point out that no parent has an inherent right to access to the child simply because they are the biological parent, nor do they have any proprietary rights or even domain over their child.  See Montgomery v. Montgomery, where the court was clear in showing that no biological link should be permitted to surpass the best interests of the child.

 

Case Citations:

  1. Somerville v. Somerville, 2007 ONCA 210, [2007] O.J. No. 1079, 2007 CarswellOnt 1697, 36 R.F.L.(6th) 7
  2. (R.R.) v. T.(G.), [1994] O.J. No. 2453
  3. Montgomery v. Montgomery, [1992] O.J. No. 2299, 42 R.F.L.(3d) 349 (C.A.) (at 360 [R.F.L]

 

Legal Disclaimer that this is information only and not to be construed as legal advice.

The Divorce Process

Should you determine that your relationship is over and that you wish to get divorced, you will need to follow the process outlined below in order to officially terminate your marriage.  If you are unsure about the nature of your relationship, take a look at our previous blog posts regarding Common law vs. Marriage and Separation and Divorce for a background regarding what is required in order to be eligible to get divorced.

Generally, the reason a divorce is granted is because two married persons have been separated for a year. However, you do not need to actually wait for a year of being separate before you can begin the divorce process. You will just have to wait until the year is up before a judge can grant you a Divorce Order. Be aware that if you reconcile the relationship for more than 90 days you will have to start the year separation period over again- (see separation and divorce article for more information). If you are getting divorced as a result of adultery or physical or mental abuse, then you do not need to wait for a year for the Divorce Order to be granted.  However, you will need to provide documentation or other evidence to support your claim for adultery, physical or mental abuse as a reason for breakdown of marriage.

Both spouses do not need to agree to the divorce, either spouse can apply for it. However, if one spouse brings the application for divorce, the other spouse has the ability to contest it, see s. 8(1) of the Divorce Act (“DA”) and Rules 8 and 10 of the Family Law Rules .

One final thing to be mindful of is that judges will not grant a divorce if they believe that no reasonable arrangements have been made to support the children of the marriage, see s. 11(1)(b) of the DA.

Can I get Divorced if I’m not a Canadian Citizen?

Yes. Canadian citizenship is not a requirement for divorce in Canada. However, it is required that you or your spouse have been living in a Canadian Province for at least 1 year preceding the divorce, see s. 3(1) of the DA.

Things to Consider when Getting Divorced

Before getting divorced, it’s important to think about the following family matters:

  1. Custody and Access for children;
  2. Child and Spousal support;
  3. Property Division including things such as:
    1. Who gets the matrimonial home?
    2. How to split pensions;
    3. What happens to bank accounts?
    4. Who pays off any existing debts?

These issues can be dealt with in a separation agreement instead of through court which can save a lot of time and money. Judges will take separation agreements seriously and are unlikely to overturn items in the agreement unless there are deficiencies with the agreement or information was not disclosed (see our previous post on separation agreements for more information). Judges also have the ability to make decisions on the above noted matters before a divorce is finalized through Endorsements and Orders. It is best to speak to a lawyer regarding your rights and obligations to ensure that you are properly protected during the divorce process.

3 Different ways to Approach a Divorce

Depending on your particular circumstances, you have three options available to you should you wish to proceed with a divorce:

  1. General Application;
    1. This approach is taken when the parties cannot agree on how family matters should be resolved;
  2. Simple Application;
    1. You make this application where the ONLY THING you are claiming is a divorce;
  3. Joint Application;
    1. You can take this approach when both you and your ex spouse consent to a divorce and bring the application together;
    2. You can also bring a joint application where you both agree on all family matters.

What will I need to begin the Divorce Process?

This will depend on what type of application you bring. Different applications require different forms depending on your particular circumstances and what issues are contested between you and your ex spouse.  It is highly advised that you speak with a lawyer to determine which forms you will need to ensure you are properly protected. See this link for a list of Family court documents that you can review – http://ontariocourtforms.on.ca/en/family-law-rules-forms/.

One document that you will have to have is you marriage certificate. If your marriage certificate is in another language you will have to get it translated. If your spouse is deceased you will need proof of death.

Documents you generally need for a Divorce include:

  1. Form 8 Application;
  2. Form 6B Affidavit of Service;
  3. Form 36A Affidavit of Divorce;
  4. Form 25A Divorce Order.

If there are outstanding family matters that need to be deal with, you might also need the following:

  1. Form 13 or 13.1 Financial Statements if support or property are contested;
  2. Support Deduction Order;
  3. Form 35.1 Child Custody and Access.

 Is there a time limit for me to apply for a Divorce?

There are no time limits (what are called limitation periods) to apply for a divorce. Nor are there limitation periods to apply for child or spousal support. However, spousal support is based heavily on need; if you do not apply for spousal support for several years a judge may be inclined to see that you do not need support and may not grant it. Child support is the right of the child and courts will uphold this very strictly.  See our posts on spousal support and child support for more info.

Also, there is no limitation period on custody and access applications. You must be mindful of something called the status quo however. Judges do not want to disrupt a child’s stable home environment and are less likely to change it if their current situation has been in place for some time.

There are limitation periods for an equalization payment (see previous post for more information). These limits under s. 7(3) of the Family Law Act are as follows:

An application regarding an equalization payment cannot be brought after:

  1. 2 years after day of Divorce of annulment;
  2. 6 years after separation and there is not prospect they will resume cohabiting;
  3. 6 months after death of a spouse.

Do I need a Lawyer in order to get Divorced?

No. You can bring the application yourself, or jointly with your spouse without the aid of a lawyer. However, it is always best to seek the counsel of a lawyer specializing in family law to ensure all your rights are protected, ESPECIALLY when there are a lot of issues between you and your ex spouse that you do not agree on. Lawyers have the expertise with the law and court procedure to ensure that the divorce can move ahead as smoothly as possible.

Even if it is a simply divorce, having a lawyer support your through the process can greatly reduce stress and complications.

When does the Divorce actually take effect?

31 days after the date on which judgment granting the divorce is rendered, see s. 12(1) of the DA. Generally, this means you have to:

  1. Start the application by filing and issuing appropriate documents for divorce;
  2. Serve other party and wait to see if they respond (minimum of 30 days after serving your ex spouse);
  3. File the affidavit for Divorce and Divorce Order for the Judgment if no response from your ex spouse;
  4. Wait for Judge to provide the Judgment granting Divorce and to sign the Order;
  5. Wait 31 days after the date of the signed Order.

This process usually takes a few months but can be much longer depending on how litigious both parties are. If you are granted the Divorce, s. 13 of the DA states that it is effective across all of Canada.

Furthermore, s. 12(7) of the DA states that the court must provide you with a Divorce certificate if you request it that can be effective as of a specified date.

Can I change the Divorce Order?

Once that 31 day period after the Order is signed by the Judge passes the Divorce is final. However, this does not mean that you cannot revisit certain items such as custody, access, or support.  These items can always be changed should both parties consent to any changes or the court deems it just. This is because income can change, spouses may want to move or any other material change that may require a change to the arrangements in place at the time of divorce.

Contact our knowledgeable staff here at Rabideau Law to see how we can assist with any divorce or family law issues you may have.

Disclaimer: The above is for informational purposes only and does not serve as legal advice. Please speak to your lawyer to better assess your specific situation.

Separation and the Matrimonial Home

Separation and the Matrimonial Home

On separation, parties often have to make hard decisions regarding how they will split assets, who will pay support, and how they will move on from the relationship.  At this time, one of the most contentious and difficult items to deal with is the Matrimonial Home.  Who gets to keep it? Will the kids remain there? Do we have to sell it? How much equity do we each get?

The matrimonial home is such a significant asset of the marriage that there is a whole section of the Family Law Act (FLA) devoted just to it (see part 2 of the Family Law Act) 

Keep in mind that these provisions only apply to Married spouses (see CL vs. Married spouse post).  Common law couples only have property rights as far as their title interest goes.  If you are common law, and you are not on title to the property, you will have to consider other equitable remedies such as a constructive trust or resulting trust claim through litigation if you want a part of the home.

First, it’s a good idea to understand what the matrimonial home is.  S.18(1) of the FLA defines a matrimonial home as:

Every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home.

What’s interesting here is that more than one home can qualify as a matrimonial home.  This means that if you own a cottage that the family uses regularly at the time of separation, this could be considered a matrimonial home as well.

So what if you moved into a home different from the one you lived in when you got married? Remember that this rule applies to properties that at the time of separation were ordinarily occupied by the person and their spouse.  Any other property you owned during the marriage that you no longer live in ordinarily is treated differently.

What if you have property outside of Ontario? Do we apply the same “matrimonial rules”? Unfortunately no.  This rule only applies to homes in Ontario as s. 28(1) of the FLA indicates.

 

What rights do I have to the Matrimonial Home?

Under the FLA s. 19(1) – both spouses have an equal right to possession of the matrimonial home, regardless of who is on title to the home (the owner).  This is a right not against the home itself, but against the other spouse.  This doesn’t mean that you have a right to take title to the home, but that you can enforce a right to live in the home through courts via an order for exclusive possession.

This remedy is provided under s. 24(1) of the FLA This is an extreme measure.  This is an order from the court saying one spouse has to leave their own home; a place where people build their lives and find security, which is a significant reason why the matrimonial home has its own section under the FLA.

  1. 24(3) of the FLA provides criteria the courts will consider when granting an order for exclusive possession:
  2. the best interest of the children affected;
  3. Any existing orders under Part 1 (family property) and any existing support orders;
  4. The financial position of both spouses;
  5. Any written agreement between the parties;
  6. The availability of other suitable and affordable accommodation; and
  7. Any violence committed by a spouse against the other spouse or the children.

You also have a say in how the matrimonial home is to be disposed of or encumbered under s. 21(1) of the FLA.  Even if you are not on title, your ex spouse cannot sell the home, transfer it, or refinance it without your consent.

You are also entitled to the value of the home and how that is distributed.  See our post on equalization to understand how the home and other assets are distributed on separation.

Net Family Property and Equalization: An Introduction

Equalization is a payment from one spouse to the other at the end of a marriage.  This equalization payment ONLY applies to married spouses, not to common law spouses.  S. 5(1) of the Family Law Act (“FLA“) provides for Equalization when:

  1. A divorce is granted;
  2. Marriage is declared a nullity;
  3. When (married) spouses are separated and there is no reasonable prospect they will resume cohabitation.

One thing I often hear clients ask is whether they have to split 50% of everything.  While somewhat true, it is not entirely accurate.  The real definition of division according to s. 5(1) of the FLA is as follows: “the spouse whose net family property is the lesser of the two net family properties is entitled to a one-half difference between them”.

In simpler terms, separated spouses are entitled to 50% of the value of the marriage.  So how is that value determined?

 

Marriage and Valuation Date

First we need to understand what Net Family Property (“NFP”) is and how to calculate it.  S. 4(1) of the Family Law Act defines NFP as all property that a spouse owns on the valuation date (i.e. separation date) after deducting:

  1. Debts and other liabilities; and
  2. Value of property OTHER THAN A MATRIMONIAL HOME owned on date of marriage.

Therefore we have two dates that are important in determining equalization:

  1. The valuation date; and
  2. The date of marriage.

The date of marriage is simply the date you got married and does not include any cohabitation before marriage.  Spousal support may factor in cohabitation periods before marriage however.  See our post on spousal support for more info by clicking here.

The Valuation date is essentially the date the marriage ended, or the date the parties separated.  It is defined under s. 4(1) of the FLA as:

  1. The date you separate;
  2. Date the divorce is granted;
  3. Date marriage is a nullity;
  4. Date one of the spouses commences an application based on improvident depletion that is subsequently granted; or
  5. Date before the date on which one of the spouses dies leaving the other spouse surviving.

Once we have those two dates, we can begin figuring out how much your Net Family Property (“NFP”) is.

 

Calculating Net Family Property for Equalization

When determining the Net Family Property (“NFP”) of persons who are ending their marriage, we need to look at two important dates: the marriage date and the valuation date.

Let’s pick two dates to help figure out the NFP:

  1. Jane and John married on October 1, 2010;
  2. Separated on February 1, 2018.

That’s almost 8 years of marriage.  You’ll see here that February 1, 2018 is the date of separation, which fits under the definition of Valuation date in s. 4(1) of the FLA.

Now, we take the value of all assets that both parties own on the valuation date, subtract their debts owned at valuation, and finally subtract the value of any property owned on the marriage date.

JOHN

John’s Assets on Valuation Date Car – $25,000

Personal Bank Account – $3,000

$4,000 in Joint account with Jane (50%) – $2,000

Investment Account ending in 1010 – $170,000

 Total = $200,000

John’s Debts on Valuation Date Loan from Friend – $50,000

Total = $50,000

Property Owned at Marriage Investment Account ending in 1010 – $100,000

Total = $100,000

Calculate Final Total

Assets

– Debts

– Property at marriage

 

$200,000

-$50,000

-$100,000

John’s NFP $50,000 

JANE

Jane’s Assets on Valuation Date Car – $20,000

Personal Bank Account – $2,000

$4,000 in Joint account with John (50%) – $2,000

RRSP – $6,000

Matrimonial Home – $320,000

Total = $350,000

Jane’s Debts on Valuation Date Line of Credit – $50,000

Mortgage – $100,000

Total = $150,000

Property Owned at Marriage Matrimonial Home – $220,000

Total = $220,000

Calculate final total:

Assets

– Debts

– Property at marriage

 

$350,000

-$150,000

can’t subtract Mat Home

Jane’s NFP $200,000 

So, something interesting happened here.  Jane’s name is the only one on title to the home and it was valued at $220,000 when they got married.  She should be able to deduct that home from the valuation date value right?

Wrong.

Remember, you subtract property owned at the date of marriage from your valuation date EXCEPT for the matrimonial home.  So Jane has to include the entire value of the home regardless of how much it was worth at marriage.

We’re almost there.  The language of the equalization rule is: “the spouse whose net family property is the lesser of the two net family properties is entitled to a one-half difference between them.”

 

EQUALIZATION

Jane’s NFP

– John’s NFP

$200,000

-$50,000

$150,000
Difference divided by 2 $150,000/2
Equalization Payment or, the one half difference $75,000

In this instance John, who is the lesser of the two net family properties, is entitled to the one half difference between them, $75,000.

Therefore Jane makes an equalization payment of $75,000 to John.  With that, John would have $125,000 and Jane would have $125,000.  They are equalized.

 

Additional Exclusions

You also have the ability to exclude other property on the valuation date other than just debts under S. 4(2) of the Family Law Act.

These include things such as:

  • Property acquired by gift or inheritance after marriage date
  • Income from property that was gifted or inherited if donor EXPRESSLY stated it is to be excluded from NFP
  • Damages from a settlement resulting from personal injuries, nervous shock, mental distress, or loss of guidance care and companionship
  • Proceeds or right to proceeds of life insurance policy payable on death of insured
  • Property OTHER THAN MATRIMONIAL HOME into which property above can be traced
  • Property both spouses agree not to include as a result of a domestic contract (see our post on separation agreements for more info)
  • Unadjusted pensionable earnings under Canada Pension Plan

If you’re thinking of separating and want help to ensure you are properly protected, contact Rabideau Law to see how we may assist.

Child Support

Child Support

One of the major issues at separation is how much child or spousal support will be paid from one spouse to the other.  This can often become very contentious between separating spouses as it can greatly impact both of their finances.

The Family Law Act (“FLA”) recognizes that each parent has an obligation to provide support for the children in accordance with the Child Support Guidelines, and that spousal support should recognize each spouse’s contribution to the relationship (see ss. 33(7) and (8) of the FLA).  This is to ensure that there are fair provisions to assist a spouse to contribute to their own support after the relationship ends.

Both types of support can be paid to married AND Common Law partners.  See our previous blog post regarding the differences between Married and Common law partners to learn more here.

This post will focus on child support.  See our next family law post for information on how spousal support is determined.

 

Child Support

Courts generally consider child support non-negotiable.  This is a right of the child and can be enforced strictly to ensure that children are properly taken care of.  This child support is meant to cover things like food, clothes and other essentials for the child’s well-being.  Additionally, parents can be required to split extraordinary expenses or s. 7 expenses.  These can be payments for things like after school programs or health related expenses.

Child support is determined by:

  1. The number of children;
  2. The province or territory where the paying parent lives; and,
  3. The paying parent’s before tax annual income.

These factors help us determine the “table” amount of child support to be paid.  A very rudimentary and approximate formula used to determine this support amount is to pay 10.8% of your monthly Gross income for one child (“the initial amount”).  If you have multiple children, you multiply the initial amount by the following approximate amounts:

  • 1.6 for 2 children
  • 2.1 for 3 children
  • 2.5 for 4 children

Of course this only gives you a ballpark figure and is not completely accurate as the factors in the formula are slightly adjusted as income changes.

For a more accurate answer, follow this link and plug in your details to determine what child support could be paid from one spouse to the other.

As of the date of this post, and according to the calculator provided in the link above, a parent living in Ontario with an annual income of $60,000 and 2 children would pay $915.00 per month in child support.

This takes into account the fact that both children reside in the same home.  If a parent has multiple children with multiple partners who all live in different households, you restart the calculation for each household.  As an example, using the above facts again, a father paying support to two different mothers would pay $556 per month to each mother, rather than $915 split between them both.

Considering that child support is the right of the child and necessary to ensure they are supported throughout their development, it is understandable why courts are so strict in enforcing the table amounts of support.  However, child support can change depending on certain factors.  Generally, child support is paid to the parent who has the child the most.  Yet should this residency arrangement be that one parent has the child 40% of the time and the other parent has the child 60% of the time, then child support payments can be reduced.

Another reason why child support could be reduced is as a result of the paying parent suffering an undue hardship.

 

Undue Hardship

S. 10 of the Federal Child Support Guidelines provides a means for parents to apply to change the set amount of child support if the parent or a child in respect of whom the request is made would suffer undue hardship.

Circumstances that could cause a spouse or child to suffer undue hardship can include:

  1. responsibility for an unusually high level of debt incurred to support spouses and children prior to separation or to earn a living
  2. unusually high expenses in relation to exercising access to a child
  3. a legal duty under a judgment, order or written separation agreement to support any person
  4. a legal duty to support a child, other than a child of the marriage
  5. a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability

 

Is there a deadline for Apply for Child Support?

There is no limitation period for applying for child support that has been ordered by a court or that was to be paid as a result of a written agreement.  The problem arises when parents attempt to apply for child support without any court order or agreement in place.  Under s. 31(1)  of the FLA, every parent has an obligation to pay support for a child of the relationship if the child is:

  1. Unmarried;
  2. A minor;
  3. Enrolled in a full time program of education; or
  4. Unable by reason of illness, disability or other cause to withdraw from charge of their parent.

So generally, if the child is over 18 and self-sufficient, it is very unlikely that a court would make an order for child support.

The parent may be successful in a claim for retroactive child support.  The general rule is that retroactive child support can be ordered back to three years before the child support recipient can prove that they asked for child support, or that child support should be changed.  Keep watch on our blogs for a future post related to the topic of retroactive child support for more details.

Speaking with a legal representative about the support issues involved in your specific situation is a great way to ensure you can plan for your future.  Contact Rabideau Law to see how we can help you.

The Process of Getting a Separation Agreement Done

The Process of Getting a Separation Agreement Done

What follows below will be a general overview of the process for completing a separation agreement.  It begins by contacting our office and concludes with the completed separation agreement that is provided to the client.

Please note that this is not a precise account of how the process works, but merely a general guideline.  Each situation is unique. Furthermore, different types of agreements and different types of retainers with our firm necessitate varying approaches to this process.  Keep in mind that this process is not limited to just separation agreements, but can be applied to any kind of domestic contracts such as a cohabitation agreement or a marriage contract (and/or a prenup).

Step 1 – Initial Contact: A potential client contacts our firm by phone, email or in person, and we arrange an in office meeting with one of our lawyers for a consultation (click here if you would like to book a consultation, hyperlink to relevant part of website).

Step 2 – The Consultation: The potential client brings any relevant documents to the consultation so that we can determine what may be the best legal solution to their legal problem.  This consultation is an information session, and we are not hired at this stage to represent the potential client.

Step 3 – The Retainer (aka the Contract): If the potential client wishes to draft a separation agreement, we will draft a formal retainer (i.e. contract between you and the lawyer) that must be signed by the client and our firm before we begin any work. This document covers the type of legal services that the firm would provide to you.

Step 4 – Gathering Info: Once the retainer is signed by the potential client and our firm, that potential client is now our client.  We provide the client with a questionnaire that asks them to provide as much information as possible including things such as their finances, children, employment, assets and debts.

Step 5 – Drafting the Agreement: After the questionnaire is complete, the client provides it to our firm and we use that information to draft a separation agreement.   This can also include drafting financial statements.  We take this time to include the details from your questionnaire into the agreement, and include any specific terms or conditions that may have been discussed.  During this stage we may ask you for more information in order to effectively include all necessary items.

Step 6 – Reviewing the First Draft: Once the first draft is completed, we contact the client to review the agreement with them to see if any other provisions need to be included or removed.  This is to ensure that the agreement matches the client’s intentions and wishes.

Step 7 – Opposing Party Review and Negotiation: Once the first draft is approved by the client, we send a copy of the draft to the other spouse’s lawyer for them to review.  If any terms need to be adjusted, we contact the other lawyer to negotiate until all parties agree to the terms and conditions of the separation agreement.

Step 8 – Final Review and Execution: Once everyone is in agreement, we create a final draft copy of the agreement for your review.  We arrange a meeting where you attend our office and we review the final draft of the agreement in detail.  Should everything be in order, we execute the agreement by having you sign the agreement with a witness and date your signature.  This is done on multiple copies of the agreement, usually one for each party and one for each lawyer totalling 4 copies.  Once executed, the lawyer at our firm will sign an Independent Legal Advice Certificate (“ILA Certificate”).

Step 9 – Completion: We then provide all signed copies to the opposing party for them to sign, witness and date, and for their lawyer to also provide an ILA Certificate.  Once that is done, they mail two completed copies back to us and we provide the client with one completed separation agreement completing the process.

Typically this process takes about 2-3 weeks to complete.  This timeline is dependent on how much negotiation needs to take place in order to resolve all outstanding issues.  However, negotiating the details of your separation outside of court is a faster, simpler, and more cost-effective means of dealing with issues.

Should your spouse provide you with an agreement, we can discuss providing Independent Legal Advice services for you.  This would essentially reverse the roles of the parties in the process outlined above.

If you are looking to get a domestic contract drafted, feel free to contact our firm to see what legal services may be best suited to your particular needs.

Separation Agreements: An Overview

Separation Agreements: An Overview

What is a separation agreement?

Separation agreements are contracts between two persons in a romantic relationship regarding their familial rights and obligations towards each other.  These types of agreements allow people to negotiate issues such as how children will be taken care of, what kind of support will be paid between the spouses, and how to distribute assets such as the home.  Once the issues are identified and agreed upon, the separation agreement can provide certainty and peace of mind for both parties as they move on from the relationship.

 

Do I need a separation agreement to get divorced or get separated?

If you are married, (if you aren’t married skip on to the next paragraph) you don’t actually NEED a separation agreement in order to get divorced or to separate from your spouse.  The Divorce Act requires that there be a “breakdown of the marriage”.  This means that:

  1. you live separate and apart for one year;
  2. the other spouse has committed adultery; or
  3. one spouse has treated the other with physical or mental cruelty.

If you aren’t married, all that is required is that you live separate and apart.  However, what that means can be complicated depending on your circumstances.

Regardless of how you and your spouse (partner, husband, wife, boyfriend, girlfriend etc) broke up, getting a separation agreement can help both parties negotiate and finalize matters between them without involving costly and lengthy court proceedings.

 

We’re working well together, why bother with an agreement?

Although you and your spouse are cooperating well at this point, there is no telling how well you two will work together in the future.  If something happens in the future where the other person suddenly refuses to work with you, and the both of you do not have an agreement in place, there could be severe consequences regarding your ability to see your children, how support payments will be made, or how assets should be redistributed.  The best thing to do is to ensure that both of you are on the same page by drafting an agreement outlining your rights and responsibilities so you won’t be faced with any unpleasant surprises in the future.

 

Why can’t I just download an existing agreement and draft it myself?

You can.  Nothing prevents you from drafting a separation agreement that both you and your spouse sign together.  However, this is an agreement that will bind the both of you into the foreseeable future.  You want to make sure that all angles are covered and that you did not omit something or improperly word something that could have serious repercussions for you in the future.  There is no guarantee that the online agreements out there are up to date or that they have the appropriate clauses to protect you especially if your ex tries to challenge or have it set aside in court.  Having a lawyer draft the agreement for you is the best way to ensure that all important issues are covered, that everything is current to today’s laws in your jurisdiction, that the law surrounding those issues regarding your rights and obligations are explained to you, and that the agreement is executed properly.

 

Can I only get an agreement at separation?

No.  There are multiple types of “Domestic Contracts” under the Family Law Act.  Other types of agreements include:

  1. a cohabitation agreement if you are cohabiting (living) with another person and are not married;
  2. a marriage contract if you are getting married (colloquially known as a pre-nup); or
  3. a marriage contract after you get married (colloquially known as a post-nup).

Be mindful that there are certain issues (eg. Access to children) that cannot be addressed in these other types of agreements.  Feel free to contact our firm to see what agreement may be best for you.

 

What are the best reasons for hiring a lawyer to draft an agreement?

One of the biggest concerns for separating spouses is how the children will be taken care of.  The agreement can help both parties create a stable and effective parenting plan for how decisions will be made for the children such as residence, school, health care, religion and education.  The agreement can also help set out a visitation and/or time sharing schedule for the parents to follow.

Another major concern for spouses at separation is the family home.  Usually, this is the largest asset that both parties have during the relationship, and a separation agreement can go a long way to outlining who is getting the home, or how the home is to be sold and distributed between the two of you.  Also, if one of you is looking to purchase a new property after separation, mortgage companies will usually ask for an agreement between the two of you before they are willing to provide a mortgage for the new property.

Other assets that can be dealt with in agreements can include: joint bank accounts, debts, pensions, RRSP’s (Registered Retirement Savings Plans), pets, cars, and life insurance.

 

How do I make sure the agreement is enforceable?

Ensure that it is signed, written, and witnessed.

Ensure that you are well educated on:  what the law is, the legal meaning and consequences of the agreement terms and the assets and debts of both parties.  Hiring a lawyer to draft the Agreement and/or provide you with independent legal advice (“ILA”) provides this assurance.

ILA is provided when one party has their own lawyer review and explain the agreement to them.  This helps to ensure that the party understands the rights and obligations they are agreeing to.  The lawyer then signs an “ILA Certificate” stating that they reviewed the agreement with their client, that their client has not been forced into the agreement, and that they believe their client understands it.

Another common addition to agreements is a sworn financial statement.  Sworn financial statements outline things such as the parties’ income, their monthly spending, and their assets and debts.  Having this financial picture helps clearly identify the financial situation of both parties so that there is no confusion regarding either party’s assets.

Having both ILA and sworn financial statements in your agreement goes a long way to ensuring that the agreement won’t be overturned by a Court in the future  (if it ever ends up that) and that you have a strong shield to protect you should anything be challenged.

Finally, you can look at separation agreements as a ”living document” meaning that it should grow and change as your financial and/or family situation changes.  It’s a good idea to review it every few years to ensure that the terms of the agreement still say what you want them to say.

The Process of Executing a Separation agreement