Friday, January 06, 2006


Separated couples have several options available to them for trying to work out a settlement of custody, support and property issues. Here is a summary of the main ones:

Mediation: This is an inexpensive option. In many jurisdictions in Ontario you can use a local government funded mediation facility. You pay the mediator based on your incomes, but it is still much cheaper than paying for lawyer time. Some couples retain and pay privately for a professional mediator. This is more expensive, but often highly effective if there are substantial property issues involved. In either case, you and your spouse meet with a mediator to discuss your options, and try to come to a settlement. Once you have a settlement, the mediator usually sends the lawyers a memorandum of understanding which sets out the principles for your agreement. You then review the memo with your respective lawyers, and a separation agreement is drawn up by one of the lawyers. In a case where there are some pension and property issues, you may want to consider having mediation with counsel present. This is something that can be arranged easily, and it is often very successful. Here is a link to Limestone Mediation in Kingston, Ontario, where I practice:

  • Limestone Mediation

  • Collaborative Family Law: This is similar to mediation, except that both counsel and the parties meet together without a mediator in a series of four-way meetings. The meetings have an agenda, and “homework” is assigned between meetings (such as gathering information, or having assets valued). This route is very successful in many cases, too. The advantages are that this process is comfortable and friendly. The one potential disadvantage is that if you do not settle in CFL, and have to go to court, neither of you can continue to retain the lawyer you used for the CFL process. This is to encourage you both to commit to the process, and to work toward a settlement. Here is a link to the Frontenac Law Association. You will find on it a further link to the Kingston Collaborative Family Law Association:

    Negotiation through counsel: If your spouse retains reasonable counsel, it is possible that we can negotiate a separation agreement through correspondence. If you choose this route, you need to work on strict timelines, to avoid the matter dragging on too long without a resolution. This can be an expensive option if things don’t move along at a reasonable pace. If both parties have effective, settlement-minded counsel, it can be a quick and relatively inexpensive way to resolve the issues. If one party retains counsel who procrastinates, or who is argumentative or litigation minded, this option obviously becomes less likely to lead to settlement.

    Family Court: You can bring an application in Family Court - in other words, you can sue your spouse. This is the most expensive, time-consuming, cumbersome and emotionally draining of all resolution options. It is not one you want to resort to unless there is no hope of negotiating a settlement. If, however, it becomes apparent that there is little hope of a reasonable negotiated settlement, it may be the best option for you to choose. If your spouse is really uncooperative you may waste a lot of money trying to negotiate a settlement, yet still have to proceed to court anyway. Suing may actually be more cost-effective in such a situation.

    E-mail me!

    Wednesday, January 04, 2006

    Spousal Support Advisory Guidelines

    In early 2005, the federal government published draft spousal support guidelines (“Spousal Support Advisory Guidelines”, or SSAG). The SSAG are not mandatory. They are meant simply as a guideline to lawyers and judges when attempting to resolve the issue of spousal support.

    The SSAG assume that in a long marriage (or common law relationship) incomes will be approximately equalized, and that in a short marriage or relationship, the amount of support and the duration will be reduced. This is not always the result in court. The result may depend on other factors not addressed by the SSAG, such as the property equalization, or the health of each of the partners. Nonetheless, the SSAG have become a useful guide to possible outcomes in spousal support claims.

    I admit that when they first came out, the traditional legal theorist in me was dismayed. The SSAG were unseemly - they looked like a way to inject new law into existing case law, without the benefit of parliamentary discussion, or judicial consideration.

    I have had to retract my initial cynicism. The SSAG are very useful to family law practitioners and clients alike. For years, I could not tell a client with any certainty what she might expect to receive, or what he might expect to pay, in spousal support. Negotiations were often protracted, because the outcome wasn't certain. Anyone could be right, which meant both lawyers were worried about negligence claims, and both clients paid more than they should have to resolve the issue.

    The SSAG have been with us since March, 2005. In that time, I have used them almost daily to give clients a rough projection of where the negotiations will begin if spousal support is an issue. Using the DivorceMate software, it takes me a few moments only to produce a professional and simple set of calculations.

    The SSAG are not the final answer in many cases in which spousal support is an issue, but they are a place to start, whether the matter is in negotiation, or whether it is being litigated. Most judges I have encountered are happy to see the calculations as part of my argument, and in some reported decisions, judges in Ontario and other provinces have commented favourably on the helpful nature of the SSAG.

    Certainty is a useful commodity in family law. The SSAG provide some predictability in a field where there was none, and for that reason, among many others, they are extremely useful.

    E-mail me!

    Are Home-Made Separation Agreements Binding?


    The short answer is “yes”, agreements drafted by the parties to a separation themselves can be binding. Section 55(1) of the Ontario Family Law Act sets out the minimum formal requirements for domestic agreements:

    “a domestic contract and an agreement to amend or rescind a domestic contract are unenforceable unless made in writing, signed by the parties and witnessed.”

    The term “domestic agreement” is a comprehensive term, which includes separation agreements, cohabitation agreements, and marriage agreements. Married people, or cohabitees, are free to draft their own cohabitation or marriage agreements, setting out certain terms of their relationship. The agreements can cover spousal support, child support, property issues and “the right to direct the education and moral training of their children, but not the right to custody of or access to their children”, and “any other matter in the settlement of their affairs.” [emphasis supplied]. A separation (as opposed to a cohabitation or marriage agreement) agreement can, and almost always does, deal with custody of or access to children.

    There are four other things that are unenforceable if included in a domestic agreement:

    • married partners are not permitted to sign away their right to possession of the matrimonial home (s. 52(2)) in a cohabitation or marriage agreement, although they can do it in a separation agreement;

    • a cohabitation or marriage agreement regarding the “education, moral training, custody of or access to” the children of the relationship may be disregarded if the agreement is not in the children’s best interests;

    • an agreement which falls short of the provisions of the Child Support Guidelines regarding the provision of child support may be set aside if it is unreasonable, having regard to the CSG, as well as to any other provision relating to support of the children in the agreement;

    • a provision requiring a partner to remain chaste is unenforceable, but provisions restricting support in the event of cohabitation with, or marriage to, a new partner, are still enforceable.

    A domestic agreement, whether drafted by the parties themselves, or by a lawyer, can be set aside under certain circumstances (s. 56(4)):

    • if a party failed to disclose significant assets or debts;

    • if a party did not understand the nature of consequences of the domestic contract; or

    • otherwise in accordance with the law of contract.

    Naturally, it is the “otherwise in accordance with the law of contract” part of s. 56(4) which attracts the most litigation. Most folks know what their partners have in the way of assets and liabilities, and most people understand the terms of the agreement. A party wanting to set aside an agreement may try, therefore, to have the agreement aside for fraud, mistake, undue influence or unconscionability, which are the main deal-breakers in contract law.

    The setting aside of agreements will be the subject of an upcoming post. Let’s just say for now that people who draft their own agreements run the following risks:

    • the agreement may be unenforceable because it doesn’t meet the formal requirements (has not been signed and witnessed);

    • the agreement may be set aside pursuant to the provisions of s. 56(4); or

    • the agreement may be a very bad deal, but may be enforceable anyway, because it is not subject to being set aside pursuant to the provisions of s. 56(4) of the Family Law Act.

    In short, separation agreements are complex legal documents. People do create them on their own, and sometimes fairly and successfully. However, as you can see, the pitfalls are huge, and can be costly. If you draft your own agreement and it isn’t enforceable (or it is enforceable, but you want out of it), you may be stuck with the consequences. If you retain a lawyer to draft the agreement, the lawyer’s job is to avoid the pitfalls for you. If s/he fails in that regard, you have recourse to the lawyer’s errors and omissions insurance plan to cover any negligent drafting.