Separation Issues That Your Lawyer Can Resolve
It’s more cost-effective and it lets them create a custom solution to their problems. Also, they have the chance do some things which are in their best interest and their children’s best interests but might not necessarily be what a court might order.
In a separation agreement, you can deal with every issue that you need to and some that a court wouldn’t deal with. You look at everything from custody and access, to not changing a child’s last name, to staying within the city or a geographic area. It’s important for people to think about all of the different issues and it’s a good idea to have a lawyer help. If people are doing it on their own, they may not know all the options or the different areas that need to be considered or the tax implications of the various decisions and how to make the best settlement from everybody’s perspective. A lawyer can help you design a win-win situation for everybody.
If the parties are unable to meet eye-to-eye on all issues, you can deal with the ones you can agree on in a separation agreement and then just leave the rest for the court to decide. For example, often spouses have different views about whether spousal support should be paid or not and how much and for how long. But, if they agree on everything else, they can just leave that out of the separation agreement and simply specify that the parties will proceed to court on the issue of spousal support alone. It is a lot less expensive for the parties to go to court on just one issue than on everything.
In terms of how to go about negotiating, it’s very important that both parties have full financial disclosure. Each provides to the other person a list of assets and liabilities as of the date of separation. Then, they have a lawyer to advise them as to their rights and obligations, and then with that context, they can make their own decisions to a certain extent.
On February 19, 2009, the Supreme Court of Canada released a decision on separation agreements, which has revised the law in terms of separation. It essentially says that there’s a real risk that the separation agreement will be set aside if it doesn’t meet the statutory objectives for child and spousal support, and for sharing the assets that have been accumulated over the course of the marriage. If the agreement varies significantly from these statutory arrangements then there’s a risk that it can be set aside in the future. Essentially, if someone gets too good a deal, they will be at risk that the other partner can go to court and have it set aside, even several years later.
The terms in a separation agreement can be incorporated into a court order so that they have the same force and effect as if they were part of a court order. Support can be enforced through the Family Responsibility Office just as if it were a court order because the separation agreement is a contract between the parties and it’s enforceable as a contract.
If the parties want to get divorced or one of them wants to get divorced, the only way to do that is through court. They will have to start a court application for a divorce, and in some cases, the court will not issue the divorce if it doesn’t see that the children’s needs are being met. You can’t just apply for divorce when there are children and not produce evidence to the judge that child support is being paid in the proper amount and that custody and access arrangements have been made. A court will not issue a divorce in those circumstances.
If you, or someone you care about, is dealing with family law issues in the London, Ontario Region, contact Michael Nyhof Barrister & Solicitor for a consultation.
This article is taken from a May 04, 2009 interview with Michael Nyhof, Family Lawyer with Michael Nyhof Barrister & Solicitor, a London Ontario Family Law Firm. Note that laws vary from province to province. Please consult with a lawyer in your own area to be sure of the laws and specific issues in your own jurisdiction.