Difference between revisions of "Agreements after Separation"

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

After each party has had independent legal advice about the agreement, they will sign the agreement in the presence of a witness if they're still willing to do the deal. Normally, each party will execute the agreement before the lawyer who provided the independent legal advice, but anyone can witness a party's signature, as long as the witness isn't under the age of 19 and doesn't stand to benefit from the agreement. The witness will watch as the party signs the agreement, and the witness will then sign the agreement him- or herself.

If the parties had legal advice, the lawyer who gave the advice will usually also sign a certificate confirming that: the party received advice as to how the agreement affects his or her legal interests; the party understood the terms of the agreement; and, the party wasn't forced into making the agreement. This is usually called a ''Certificate of Independent Legal Advice''.

Call your lawyer before you sign or initial anything. This is what you're paying her for.

*A separation agreement will not be considered to be invalid just because one party doesn't comply with a term of the agreement, that is, you can't say the whole agreement has been broken because the other party didn't do something he or she was supposed to do.

Note that the courts will rarely if ever uphold an agreement that attempts to contract out of a statutory obligation. Child support, for example, is a positive, almost absolute, obligation a parent has toward his or her children. The court will not consider itself bound by an agreement that says a person will never have to pay child support.

There are two basic types of custody available under the ''Divorce Act'': sole custody and joint custody. Sole custody is less common than it used to be, and is usually only appropriate where the parties are constantly at each other's throats or where one party is or 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 and both have responsibility for making decisions about the children.

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 guardian. A parent who has never lived with his or her child isn't a guardian unless the parent "regularly cares" for the child.  

Under s. 50, only a parent can become the guardian of a child through an agreement with all of the child's guardians. (Of course, the only parents who would need to become a guardian in this way, are parents who aren't guardians to begin with — parents who have never lived with the child and have not "regularly cared" for the child.) Someone who is not a parent can't be made a guardian by an agreement.

*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 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, Form F8 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules], is a helpful court form in which each party describes his or her income, assets, expenses and debts on oath or affirmation, like an affidavit. 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 find links to and examples of a Financial Statement and other forms in [[Sample Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]].

*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,

If you have even the slightest doubt that the other party hasn't been entirely forthcoming about the extent of his or her assets, a term governing undisclosed assets can be important. These sorts of terms usually provide that:

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, ''[http://canlii.ca/t/5115 Sydor v. Sydor]'', 2003 CanLII 17626 (ON CA). 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.