[Mess]

Originally Posted by NoahJenda

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.

Noah, there was nothing snippy about that. You are free to disagree. What's the problem?

Well, of course a private agreement doesn't trump statutory law.

Good. Glad you agree. Your original post would have led someone to believe otherwise.

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.

But here you fall apart again. If you and I agree that we can't stand each other and you will take the kids and I won't get to see them, I can change my mind about that. If you try and keep me away from our kids, Noah, the courts won't support you, and if you go to any extreme, like trying to take them out of the country, I'll have you criminally charged. You won't be able to protect yourself with a claim that we had a verbal agreement that I would have no access.

I have no problem tolerating you. It's understanding you that I have difficulty with.

Actually you seem to be able to grasp what I mean just fine, and I strongly suspect that you are being disingenious. You know perfectly well what I meant by "alegal" and that I was using literary license there. You were just being snippy, weren't you?

You're right

Thank you, I am.

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.

I think you are lying, Noah. You know perfectly well what I meant.

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.

Because of status quo, not because the verbal agreement trumps written law. The best interest of the children would be deemed that their lifestyle and routine not be further disturbed. But if there were material reasons to show that their best interests were served by changing the custodial status, it would be changed.

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.

I'm even sorrier, Noah, because you are even more wrong. The situation you opened with, the one we are discussing, is one where the two parties have not received legal advice, in a way that can be shown to the courts. That is, no lawyer has signed an affadavit stating that they have advised the party. This situation is by default one that cannot stand up in court. There is no binding agreement in existance.

Some of the examples you site are valid.

Actually, the examples are ones I cite. If you're going to get snippy about use of language, Noah, you'd better pull up your own socks.

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.

The court knows that this agreement existed how, exactly? And in what way would it be binding? The default position of the courts would be to prevent the move anyway, whether there was an agreement or not, unless the party seeking to move the child could provide sufficient justification for the move. So your example is inherently flawed.

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

You mean web site, Noah, site.

JP Boyd's BC Family Law Resource: Family Agreements > Making Changes
A page describing written separation agreements. Ahh. Interesting. Which backs up everything I have already said. Thanks Noah. What was it you disagree with again?

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.

Still don't believe you about what? This couple had a written separation agreement and had received legal counsel. It was overturned because the husband's financials were fraudulent. This supports your notions about verbal agreements how exactly?

You're right.

Yes, I am.

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.

You agree it's best to settle the issues, but your original post which I took exception to, said that you didn't have to. I never claimed they weren't separated. I was pointing out that the distinction you were trying to make, that a separation agreement can't be "legal", was wrong, and it was dangerously misleading. You haven't shown me anything to change my mind about your stance.