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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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Old 08-12-2008, 10:53 PM
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Default Home made separation agreement, bad idea???

Has anyone done a home made separation agreement? Did it work? I used one of those "kits" you can buy and wrote a separation agreement. All we would need is a witness when we sign it. I am comfortable with the terms but I am a little nervous... what if I forgot something? Is it really a legal document? I wanted to avoid legal fees but more importantly tension that might raise when getting independant lawyers. Of course, both lawyers I talked too said I really should get the agreement done by a lawyer. Also a few other people I spoke with said the same thing... My family thinks hiring lawyers is looking for trouble...

I have a couple of friends that separated, but they are in Quebec. It is a little different there because you're entitled to 6 free mediation sessions when you have at least 2 children. The mediator helps you agree on the terms, then it is notarized for approximately $50...

Any input will be greatly appreciated
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Old 08-12-2008, 11:42 PM
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The Family Law Act of Ontario allows for separation agreements. However, there is some criteria that shall occur.

http://www.e-laws.gov.on.ca/html/sta...es_90f03_e.htm

See the respective act. Section 54 deals with separation agreements.

Quote:
Separation agreements

54. Two persons who cohabited and are living separate and apart may enter into an agreement in which they agree on their respective rights and obligations, including,

(a) ownership in or division of property;

(b) support obligations;

(c) the right to direct the education and moral training of their children;

(d) the right to custody of and access to their children; and

(e) any other matter in the settlement of their affairs. R.S.O. 1990, c. F.3, s. 54; 1999, c. 6, s. 25 (24); 2005, c. 5, s. 27 (27).
Section 55 of the act deals with Form and Capacity

Quote:
Form and capacity

Form of contract

55. (1) 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. R.S.O. 1990, c. F.3, s. 55 (1).

Capacity of minor

(2) A minor has capacity to enter into a domestic contract, subject to the approval of the court, which may be given before or after the minor enters into the contract. R.S.O. 1990, c. F.3, s. 55 (2).

Guardian of property

(3) If a mentally incapable person has a guardian of property other than his or her own spouse, the guardian may enter into a domestic contract or give any waiver or consent under this Act on the person’s behalf, subject to the approval of the court, given in advance. 1992, c. 32, s. 12.

P.G.T.

(4) In all other cases of mental incapacity, the Public Guardian and Trustee has power to act on the person’s behalf in accordance with subsection (3). 1992, c. 32, s. 12.
The court has the absolute right to alter any separation agreement that deals with the best interest of the child. See section 56 of the act.

Quote:
Provisions that may be set aside or disregarded

Contracts subject to best interests of child

56. (1) In the determination of a matter respecting the education, moral training or custody of or access to a child, the court may disregard any provision of a domestic contract pertaining to the matter where, in the opinion of the court, to do so is in the best interests of the child. R.S.O. 1990, c. F.3, s. 56 (1); 1997, c. 20, s. 10 (1).

Contracts subject to child support guidelines

(1.1) In the determination of a matter respecting the support of a child, the court may disregard any provision of a domestic contract pertaining to the matter where the provision is unreasonable having regard to the child support guidelines, as well as to any other provision relating to support of the child in the contract. 1997, c. 20, s. 10 (2); 2006, c. 1, s. 5 (8).

Clauses requiring chastity

(2) A provision in a domestic contract to take effect on separation whereby any right of a party is dependent upon remaining chaste is unenforceable, but this subsection shall not be construed to affect a contingency upon marriage or cohabitation with another. R.S.O. 1990, c. F.3, s. 56 (2).

Idem

(3) A provision in a domestic contract made before the 1st day of March, 1986 whereby any right of a party is dependent upon remaining chaste shall be given effect as a contingency upon marriage or cohabitation with another. R.S.O. 1990, c. F.3, s. 56 (3).

Setting aside domestic contract

(4) A court may, on application, set aside a domestic contract or a provision in it,

(a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;

(b) if a party did not understand the nature or consequences of the domestic contract; or

(c) otherwise in accordance with the law of contract. R.S.O. 1990, c. F.3, s. 56 (4).

Barriers to remarriage

(5) The court may, on application, set aside all or part of a separation agreement or settlement, if the court is satisfied that the removal by one spouse of barriers that would prevent the other spouse’s remarriage within that spouse’s faith was a consideration in the making of the agreement or settlement. R.S.O. 1990, c. F.3, s. 56 (5).

Idem

(6) Subsection (5) also applies to consent orders, releases, notices of discontinuance and abandonment and other written or oral arrangements. R.S.O. 1990, c. F.3, s. 56 (6).

Application of subss. (4, 5, 6)

(7) Subsections (4), (5) and (6) apply despite any agreement to the contrary. R.S.O. 1990, c. F.3, s. 56 (7).

lv
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Old 08-15-2008, 12:42 PM
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Default Home-made separation agreement

A friend of mine did this, the terms were agreeable to both parties, and they had it notarized at the bank.

Words of caution though. If there was any chance of a spouse possibly applying for spousal support within the year....might be better to have legal counsel.

However -- a good friend of mine suggested that I draw up a separation agreement that is agreeable. If you "both" go in to see a lawyer and say you understand terms, then they could do it for both. Might be worth the few hundred dollars for a mediator, rather than pay for something else later.

Also -- if you end up going to a lawyer on your own to draw up an agreement, then the spouse has to do the same thing. Consider two lawyers, their time etc....

That's what I've been told anyway. Anyone else may correct me if I'm wrong (for Ontario). If you are Ontario resident you can pay $6 for a referral for 1/2 hr consult fm Law Society Upper Canada members.
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Old 08-20-2008, 09:18 AM
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I tried this route first and my ex and her lawyer just laughed at it and didn't even give it a second thought - they know what I'm worth and want the max...
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Old 09-28-2008, 06:16 PM
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Default where can i get a seperation agreement kit

can anyone tell me where i can get a seperation agreement kit? Chapters,coles are all sold out, i live in Ottawa.
Thanks
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Old 09-29-2008, 07:47 AM
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did you try online?? That is how my friend got his. After he and the ex comleted it they got a lawyer to look it over and that was that. I have to mention that their divorce was one of the nicest I have ever seen. They are better off as friends and co-parenting the kids. If yours is gong to be difficult for whatever reason then maybe a lawyer is the way to go to make sure everything is covered and legal. If you still want to use the kit make a list of everythig that should be covered and get a trusted friend, family member to look it over for you to see if there is something you should put in or take out.

Good Luck
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Old 09-30-2008, 03:57 AM
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Apply Google power--There are a few sites out there for Ontario/Canada Legal Separation Agreement templates!
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Old 01-13-2011, 05:45 PM
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It is basically considered legal and binding but it MUST be witnessed and better that be lawyers. This shows an attempt to be fair and consier all that is needed.

My ex tried to have a one-sided & unwitnessed one, held up in court but it failed miserably.

So as they saw buyer beware, just make sure all the Is ar dotted and Ts crossed.
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Old 01-13-2011, 06:36 PM
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I don't think having a lawyer shows that you are attempting to be fair

Rather, it used to show that you have received advice/counsel on your rights, and understand the consequences of what you are signing. So, you want to ensure that YOUR EX indicates they have had the agreement reviewed by THEIR lawyer, so that YOUR EX cannot later claim the agreement is invalid/unfair because they did not understand.
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Old 01-13-2011, 06:46 PM
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Quote:
Originally Posted by AtALoss View Post
...
My ex tried to have a one-sided & unwitnessed one, held up in court but it failed miserably.
...
So you agreed to something, put your signature on it to prove that you agreed, and then backed out using the courts...hmmm because it was not witnessed.

What was it that you didn't understand when you agreed to it and put your signature on the agreement?

Are you not morally responsible for what you sign? Do you not place value on what your signature means?
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