New to this Forum - lookig for advice on Separation (from husband)

[Margaret-Krupa]

Hello everyone,

I just joined this Forum a few days ago. My name is Margaret and I am looking for information, advice, warnings... etc., basically, I want to learn more about Separation and Divorce proceedings. I have been married for almost 22 years (another anniversary coming up on August 28) and we have two boys ages 17 and 15. Our marriage was happy for the first few years, troubles started popping up when our first son was born. Now it is a disaster story... Do not get me wrong, I am not one of those spouses who "hate" the other for everything - no - I still have a lot of "fuzzy" feelings for my husband but feel very much "let down", simply speaking dissapointed with his attitute towards my illness (It is embarrasing, but I wil be hones with everyone, I have a very bad Eating Disorder - Anorexia with bulimic episodes) and with time being increasingly mentally abusive to the point when now he is treating me like a piece of dirt... It really breaks my heart to say this, because it is hearbreaking to see the person I loved and in a way still do, being so disrespectful to me and call me very degrading names. Recently, he has been calling all our friends and tells them a lot of stories (some true some only partly true) about my illness and how it affects my life. Anyway, we both decided to separate, but I am not sure how to start the whole thing. We have a house on which there is only $20 thousand outstanding in mortgage but neither of us could afford to pay the other one off. My husband is taking a Second Career training course so right now he is receiving EI until November. I am on long term disability from private insurance and also receive CPP Disabilty. My job is still open to me but I am not well enough to go back now. I hope to retun to work once we separate and I re-gain my self-esteem. My husband does not want to stay with the kids. He claims that the kids are only his "on paper" because of me. He also is not willing to pay any Child support but I am not concerned about that too much. All I want is to get this done as smoothly and quickly as possible, start healing my heart and re-gain happiness in life (without ANY OTHER partners in my life!!!!). I am looking for advice what should my first steps be? Go to a lawyer (that is expensive, even for a first consult) or just get the forms from the Ontario Court website, fill them out and file them? I will appreaciate any information, advice, anything. (sorry for being so long on my story...)

[billiechic]

I really urge you to see a lawyer. You have kids, and they need to be taken care of. The responsible thing to do is to make sure they are getting child support (assuming they are still under 18 or in secondary school). Given that you are on disability you might qualify for legal aid. If not, most lawyers offer a free half hour consult to hear your story and give you some basic advice.

If he really was that mentally abusive you might want to contact a women's shelter. They can offer you support and direction in this.

[Margaret-Krupa]

Thank you very much for your reply Billiechic. I actually have seen two lawyers in the past but that was when I was still working ( I stopped working in June 2006 when I went to hospital for my first treatment and could never get well enough to go back to work). Both told me that I may end up paying spousal support because my husband is out of work so much (he is on and off EI for the last 5 years) and I was the one who made more money and "tolerated" him being at home and not working. I did contact women's shelter and was thinking about leaving the house, but then I was told that I should never leave my matrimonial home because I may be deemed that I abandoned it and then my husband will be able to keep the house to himself. I spoke to the boys, they want the best for me and their dad but I feel that they really need to be in this house or at least in this location until they finish High School (2 and 1/2 more years). I am very confused as to what I should do - stay here and put up with daily put-me-downs for the next two or three years or put pressue or start separation proceedings. My husband will not commence these himself - I heard him talking to one of our friends that "separation or divorce is NOT CONVENIENT" for him now... Well, he has it all here and I do everything for him, including job search, medical appointments, help with his mother's problems overseas... the list is too long...

[NoahJenda]

I'm a bit confused. Have you and your husband decided to separate or not?

In any event, it's probably important for you to understand that there is no such thing as a "legal" separation. Some couples simply separate without any paperwork at all. You can't get divorced yet: in general, you have to be separated for at least one year before a court will grant a divorce.

When they separate, many couples write up a separation agreement that settles issues surrounding property, child support, spousal support, custody, and access. Separation agreements are private agreements between two people. You don't need lawyers or judges to settle the issues.

As I see it, you have two broad options. You can negotiate with your husband and come up with a separation agreement on your own. Option two would be to apply for legal aid, in which case an appointed lawyer would either negotiate and agreement on your behalf, or commence court action that asks a judge to settle the above issues.

A few notes in response to your comments. Your children are both old enough to have a significant voice in custodial and access arrangements. You might come up with a plan with your ex, but a 17-year-old can pretty much write his own ticket about who he wants to live with.

Finally: naturally your ex "does not want to pay child support". Lots of people don't. But regardless of what either of you want, he has an obligation to support his children. It's their legal right, not yours.

[Mess]

In any event, it's probably important for you to understand that there is no such thing as a "legal" separation.

Bit of a misconception. The popular slogan is, "No such thing as an 'illegal' separation". A legal separation would be recognised by the courts and would give the parties and the children protection under the law. There are also tax and pension issues that will always require that a separation be "legal" in the sense of being acknowledged under the law.

A separation can be alegal. A private agreement works as long as both parties continue to agree. But if the other party stops agreeing, there is nothing you can do to force them to stick to the deal.

If two people only have to split assets, an alegal separation is fine. As long as there is full disclosure and one side isn't hiding assets or trying to defraud the other side in any way. But this kind of agreement is really a "one-time thing", if everything is fine when you agree, there shouldn't be long term issues.

If there are children involved, an alegal separtion doesn't do anything to protect the children or the other parents rights. The agreement doesn't protect custody, it won't keep a parent from moving away with the children, it won't ensure a parent pays support like they agreed. If there are problems you end up needing the courts and the law after all. It works as long as the parties continue to agree, so it's hardly binding, it's not a contract and the law can't protect anyone.

[NoahJenda]

Originally Posted by Mess

Bit of a misconception. The popular slogan is, "No such thing as an 'illegal' separation". A legal separation would be recognised by the courts and would give the parties and the children protection under the law.

I'm not entirely sure I understand what you're getting at, but if I do, I'd have to disagree. A "separation" is simply one (or two) people deciding that the marriage is over. There are no papers to sign, no oaths to swear, etc. It's over, you move out, and voila, you're separated.

Originally Posted by Mess

A separation can be alegal. A private agreement works as long as both parties continue to agree. But if the other party stops agreeing, there is nothing you can do to force them to stick to the deal.

What does alegal mean? I don't think that's even a word.

In any event, I again disagree. A signed private agreement is binding and enforceable whether both parties continue to agree or not. In fact, if one party files the agreement with the courts, the agreement has the same legal weight as a court order. I can't understand why anyone would go to the trouble and expense of drafting a separation agreement is one of the parties can simply decide they won't bother to observe it.

It is true that one party has to apply to a court to enforce an agreement. The court will respect the agreement unless there is a specific reason not to, or (in the case of custody/access) there has been a significant change.

If two people only have to split assets, an alegal separation is fine. As long as there is full disclosure and one side isn't hiding assets or trying to defraud the other side in any way. But this kind of agreement is really a "one-time thing", if everything is fine when you agree, there shouldn't be long term issues.

Originally Posted by Mess

...an alegal separation...won't keep a parent from moving away with the children, it won't ensure a parent pays support like they agreed. If there are problems you end up needing the courts and the law after all. It works as long as the parties continue to agree, so it's hardly binding, it's not a contract and the law can't protect anyone.

You're plainly mistaken. A separation agreement is a contract. It is a binding. It can restrict a parent from moving -- my own separation agreement says my ex wife can't leave the province with my son without my knowledge and permission.

What I think you are trying to say is not that separation agreements can't be enforced; you're trying to say they are difficult to enforce. That's true, but it's also true of any kind of private contract. If one party decides to
ignore the agreement, you have to get a court to issue a court order. If they still refuse, the court may take further action.

[Margaret-Krupa]

I only had a chance to read your replies this Wednesday afternoon. I want to thank each one of you sincerely for thorough and best advice you are able to give me. I can see now that Separation is not as simple as I thought. I am not sure if I can just trust my husband with ahering to separation agreemnt terms. I am now thinking about my sons' wellbeing. Ever since I return from Hospital in September, 2009 he is very hostile to me, gossips about me with all our friends and family members (one of our friends called me and said that she is very concerned that Chris called her and talked for almost an hour about me complaining about me most of the time she worried that his goal may be to ruin my reputation among friends and family and I feel this is exactly what he intends to do...). I caught him lying to me many times about things that are quite ridiculous but have a great impact on my trust for him. That is why I am now thinking about filing a Petition for Divorce - maybe I should start it this way?

[Mess]

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

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.

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.

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. There is flexability on some issues but it still has to comply.

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 not entirely sure I understand what you're getting at, but if I do, I'd have to disagree. A "separation" is simply one (or two) people deciding that the marriage is over. There are no papers to sign, no oaths to swear, etc. It's over, you move out, and voila, you're separated.

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.

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.

The only situation where that is meaningful is if a couple were common law, both had equal careers, no joint debt or assets, rented an apartment and were childless. So then they divy up the cd's and the kitchenware and go their separate ways. Fine. In a situation like that there is nothing to separate. They were barely more than room-mates.

[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.

[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.