Video: Parents Are At Odds About Whether They Reached an Accord
Once a couple decides to end their union, their first step is to try to come to terms on how their separation phase will unfold. That process involves thinking in a concrete way about a very large list of issues and arrangements, both from a legal perspective and from the personal perspective of the family structure. This is where “do-it-yourself” separation agreements become a concern. Couples will often sit down and try to commit their verbal agreements to paper, often using materials they find on the internet, in order to save on legal fees. This section will focus on the many important aspects of trying to reach a valid and comprehensive separation agreement, with the admonition that it is always best to get the help of an experienced Family Law Lawyer.
Separation agreements can be a useful means by which separating spouses can take first steps towards unwinding their financial and family-related affairs through a mutual agreement. Here are the top five ways to ensure that a separation agreement is valid and enforceable in Ontario.
Although separation agreements are very useful and a necessary first step in the process leading to divorce, as time passes, a separation agreement that was drafted at the time of the formal spilt my no longer adequately address the needs of one or both parties later on. This can be due to changing circumstances as the divorce approaches; or alternatively, one or both parties may not be following the terms of the negotiated agreement to the letter. In such situations, the separation agreement can be amended in one of several ways.
There are many pitfalls in a do-it-yourself approach to drafting a separation agreement. In the case of Cramer v. Cramer, the court largely rewrote parts of the divorcing couple’s “kitchen table” separation agreement which they prepared using an office-supply store kit. Unfortunately, the agreement they prepared not only overlooked some very key provisions, it also ran afoul of Ontario Family Laws. Ultimately, both parties had to hire lawyers anyways and resulted in a judge having to redraft the agreement to bring it in line with the law and the parties true wishes.
There is a resulting and necessary interplay between dispute resolution methods and court processes, and sometimes legal conundrums develop. The Supreme Court of Canada addressed the question of how to deal with an application to vary a court order that embodied the terms of a separation agreement that the spouses had negotiated themselves and freely agreed to.
The Ontario Court of Appeal handed down a decision in 2012 that provides important clarification on the topic of arbitration clauses contained in negotiated separation agreements. In the case of Grosman v. Cookson, the spouses had separated in 2001 after a marriage of 34 years. Both parties agreed to participate in mediation which resulted in a freely negotiated and comprehensive separation agreement that required the husband to pay the wife $8,500 per month in spousal support. The agreement also provided that in the event that either of them wanted to vary that particular aspect of the agreement, the issue would be settled through the use of a mutually appointed mediator/arbitrator, rather than through the intervention of the court. This is known as an “exclusive arbitration” clause.
The Supreme Court of Canada tackled this question in 2009, in the case of Rick v. Brandesma. The question arose in the context of a separation agreement which the couple had negotiated after almost 30 years of marriage and five children together. The wife later went to court to have the agreement struck down, claiming that in the course of those negotiations the husband had either deliberately concealed or under-valued assets and had taken advantage of her emotional instability. The resulting separation agreement had left the wife with $650,000 less than she should legally have obtained.
Typically, separation agreements and other domestic contracts will attempt to address the repercussions of any future changes to the parties’ respective situations. For example. what happens in the event that one or both spouses have lost their jobs, have a lasting illness or disability or have married someone else? Needless to say, it is difficult to predict the future, and even more difficult in the context of trying to address the repercussions of such unforeseen changes on the partners’ support obligations to each other.