[NoahJenda]

Originally Posted by Mess

Noah, you are free to disagree all you want, we are all amateurs here.

There's no reason to get snippy. People that come to this forum are expecting accurate information, and I just want to make sure they get it.

Originally Posted by Mess

You and your ex can make an agreement, in writing or not, stating that, for example, the ex pays no child support but you have full custody of 8 kids. That agreement would not stand up in court, not for a minute. There is no support for an agreement like that from the law. The law = legal. The agreement is not legal in any formal sense. It is not supported by legislation or any court precedent or any common law.

Well, of course a private agreement doesn't trump statutory law. Any illegal agreement would be struck down in court (if it was challenged). A court won't enforce an agreement that says I can murder my business partner if he doesn't repay a loan. 'Cause murder's illegal.

In your example, the amount of child support is legislated, and there are strict rules about that. So naturally a court won't uphold an agreement that violates the law. But many aspects of a separation agreement don't violate the law. Agreeing to give full custody and access to your spouse isn't illegal -- there's nothing illegal about declining to see your child or participating in his or her upbringing.

Originally Posted by Mess

It is "alegal" in same way something that is not symetrical is "asymetrical". If you don't like my language you can spank me with a ruler and keep me after class... oh wait you can't. You will just have to learn to tolerate me.

I have no problem tolerating you. It's understanding you that I have difficulty with. You're right that the not symmetrical is "asymmetrical". But not legal is "illegal", not "alegal". That's a made-up word and I simply didn't know what it meant.

Originally Posted by Mess

A couple, as I said above, can agree to anything they want, but can't have the agreement enforced in any way whatsoever unless it complies with the law.

I agree. But there are many, many aspects of separation agreements that couples can agree to without violating the law. For instance, if a couple decides that the primary residence will be with the mother, and the father will see the child every other weekend, a court will not overturn that simply because the father changes his mind.

Originally Posted by Mess

If they aren't concerned with enforcement, that is fine as long as they agree. Will they still agree in two years? After one of them remarries? When the kids are in an expensive college program? When the custodial parent wants to move to the other side of the country? If they are sure to still agree, that's fine. If they are not, the agreement would not be in any way considered legal. It is unenforcable.

I'm sorry, but you're wrong about this. A separation agreement is not automatically invalidated the moment one of the parties decides they no longer agree with it. In fact, courts treat separation agreements with "great deference". Only under specific circumstances will a court overturn an agreement. These circumstances include: unfairness, material change in circumstances (with respect to custody/access/support issues), lack of disclosure or good faith, coercion, lack of legal advice, etc.

Some of the examples you site are valid. Circumstances change, and a court is free to change an agreement (or a court order) if there is a good reason for doing so. But that's a far cry from saying that separation agreements are "not legal" or "unenforceable". They are both legal and enforceable. But if a couple agrees that the child will not be moved to a different city, a court will respect that unless there is a good reason not to. The courts are very clear that the onus is on the parent seeking the change to first prove that something significant has changed; after which a court will "embark on a fresh inquiry" into the issue.

If you don't believe me, have a look at this web page.

JP Boyd's BC Family Law Resource: Family Agreements > Making Changes

If you still don't believe me, have a look at this judgment:

Supreme Court of Canada - Decisions - Rick v. Brandsema

...where a woman had to go all the way to the Supreme Court of Canada to get a separation agreement overturned -- and only because the agreement was unconscionable because her husband hid assets from her.

Originally Posted by Mess

There is no such thing as "separated" in that sense, because the term indicates nothing. They have different addresses. Great. Division of assets, release from claims for spousal support, custody, child support, taxation, dependants, pensions, inheritance, guardianship if one of them becomes incompetant or comatose, these are all issues that could come up, and separating in the way you state deals with none of them.

You're right. Getting separated doesn't deal with any of these issues. That's my point. But lots of people separate then do nothing. No agreements, no court orders, nothing. They're just living apart. I agree it's best to settle all those issues, but there's nothing requiring them to do so -- and they're still separated.

Originally Posted by Mess

Separate like that, get in a car accident and land in the hospital, and your ex can take over your whole estate and empty your accounts. You haven't actually done anything by "separating" like that.

You haven't done anything...except separate. Separating and coming up with a separation agreement are two completely different things.