SEPARATION AGREEMENTS

If the parties are able to negotiate an Agreement, their counsel would then incorporate their agreement in writing.  The Agreement is called a “Domestic Agreement” or a “Separation Agreement”.   In order to have a valid domestic Agreement, the following must be present:

(a)   The Agreement must be in writing;

(b)   It must be signed by the parties and witnessed by a third party;

(c)    The parties should have Independent Legal Advice. 

(d)   The parties should have exchanged Financial Disclosure;

(e)   The Agreement should be executed voluntarily by the parties and it should be valid in accordance with the law of Contracts;

Separation Agreements set out in as much detail as is necessary all of the terms that the parties wish to include.  It can deal with some or all of the outstanding issues arising from the separation.  Some Separation Agreements will only deal with specific issues, for example the child related issues of custody and child support.

Since the legal system wants to encourage people to resolve their disputes following separation, a court will usually respect the provisions of a valid, enforceable domestic contract.  However, in certain circumstances a court may overrule the provisions of a Domestic Contract.

Once the Agreement is executed by the parties, it is a legal and binding document which can be filed with the Court for enforcement (eg. to enforce the payment of support)..

Each party to the Separation Agreement should obtain Independent Legal Advice from a solicitor, who will review the rights, responsibilities and obligations of each party and ensure that the party to the Agreement understands the document and is not being forced to execute it for any reason, including intimidation by the other spouse. 

Once a valid enforceable Separation Agreement is executed, it is very difficult to set aside.  Anyone seeking to set aside a Separation Agreement, must focus on the following issues:

(a)    validity of the contract - eg.:  capacity, failure to disclose assets or liabilities, lack of understanding, common law grounds to set aside the contract etc.;

(b)   enforcement - eg.: provisions in the agreement dealing with possession of a matrimonial home, lack of proper form, child support provisions;

(c)    overriding the agreement - eg.: overriding child support provisions;

(d)   interpretation of the agreement;

The Supreme Court of Canada has held that parties cannot prevent a court from evaluating a Separation Agreement and determining spousal support under the Divorce Act.  This has caused great concern with many parties who are concerned that in negotiating a Domestic Agreement, and arriving at a resolution of all issues, including for example, a Husband paying his Wife more money in exchange for a release of spousal support, a court may set aside the Agreement in the future.   The Supreme Court of Canada has stated that, although a court should be reluctant to set aside a term of a Separation Agreement, a court may do so if the agreement was not fairly negotiated and did not reflect the objectives of the Divorce Act, and whether anything outside of the reasonable contemplation of the parties had occurred since the date of the agreement.   This review process of the court is usually only with respect to spousal support provisions of an Agreement.

 Since Child support is the right of the Child, parties cannot prevent a court from reviewing an agreement to ensure that a Child is protected.   A court will not grant a Divorce unless it is satisfied that a party is paying proper child support.  If a party is paying less child support than provided for in the Federal Child Support Guidelines, the parties must demonstrate that the Agreement is beneficial for the Child.

 

NOTE - This article is not intended to provide legal advice and should not be relied upon as such. The purpose of this article is to provide general information about Separation and Divorce. If you are intending to separate from your spouse or partner, or you have other family law problems, it is strongly recommended that you immediately obtain legal advice from a lawyer at LORNE FINE PROFESSIONAL CORPORATION, Barristers & Solicitors.  We would be pleased to assist you.