Announcement

Collapse
No announcement yet.

Separation agreement vs Consent order

Collapse
X
 
  • Filter
  • Time
  • Show
Clear All
new posts

  • Separation agreement vs Consent order

    I have a somewhat unusual situation. My spouse wants a divorce, and I don't. They filed an application on the basis of living separate and apart for more than year. I object to the divorce ("living in the same household situation", based on my reading of Molodowich, Oswell, and Rosseter factors and related caselaw), but I agree to ALL the corollary relief claims - parental decision making, parental time, child support, spousal support, and division of property. My spouse has a lawyer and I am unrepresented. The case is very fresh (we have not had a first appearance yet). My spouse is very reasonable, we are a low conflict couple. They just want out

    Thus I have a few "strategy" questions:
    1. Is it possible to have a "conditional" separation agreement - the one that would come in effect only if divorce is granted after a trial? Or having a separation agreement requires an admission that we are indeed separated (which I deny)? I suppose we can have a draft separation agreement ready, in case I decide not to proceed to a trial.
    2. Does it make sense to file a 12(6) motion to split the divorce from the other issues? As far as I understand this is typically done in the opposite case: when parties do not object to a divorce but do not agree on all the corollary issues.
    3. Does it make sense for me to make any Offers to Settle? What issues would I try to settle? What if the spouse offers to take less $$ only so that I would agree to a divorce? Would it be unreasonable for me to not want to disadvantage my spouse financially (ie for me to still propose a 50/50 division of assets - I suppose the answer is "yes": if they offered better $$ terms than the judge is likely to order, this could have costs consequences).
    4. And, finally, if we do go to a trial, I suppose we can put our agreement on all the corollary relief issues into a "consent order" since I do not foresee that we will be litigating any of them. Not sure of the mechanics though.

    Any advice/insight will be appreciated.

  • #2
    Originally posted by Sugg53 View Post
    I have a somewhat unusual situation. My spouse wants a divorce, and I don't.
    That is not even remotely unusual. If anything, that is the most common situation.

    They filed an application on the basis of living separate and apart for more than year. I object to the divorce ("living in the same household situation", based on my reading of Molodowich, Oswell, and Rosseter factors and related caselaw)
    Roughly speaking, it is almost impossible to object to the divorce. The very fact that you guys are in court is a pretty clear sign that the relationship is over.

    My spouse is very reasonable, we are a low conflict couple. They just want out
    Your spouse is low conflict. Objecting to the actual divorce is extremely high conflict. You are unreasonable. Eventually, your spouse is going to get annoyed and is going to become high conflict to match you.

    1. Is it possible to have a "conditional" separation agreement - the one that would come in effect only if divorce is granted after a trial? Or having a separation agreement requires an admission that we are indeed separated (which I deny)? I suppose we can have a draft separation agreement ready, in case I decide not to proceed to a trial.
    What on earth gives you the idea that you are not separated? You are absolutely separated. One small clue is that your ex spouse is spending thousands of dollars to get away from you.

    Anyhow, that said, if I was her I would totally agree to a conditional agreement like you have laid out because the probability of you winning your "I don't wanna get divorced" case is pretty much zero.

    2. Does it make sense to file a 12(6) motion to split the divorce from the other issues? As far as I understand this is typically done in the opposite case: when parties do not object to a divorce but do not agree on all the corollary issues.
    The reason for this is that a divorce is almost automatically granted, so there is no point in fighting about it.


    3. Does it make sense for me to make any Offers to Settle? What issues would I try to settle? What if the spouse offers to take less $$ only so that I would agree to a divorce?
    Do you think you are the first person who had the bright idea of objecting to the divorce as a form of blackmail?

    Again, it won't work. Your spouse will get the divorce. The only question is whether you are going to do it before your spouse racks up the legal bill, which YOU are going to have to pay, because objecting to a divorce is incredibly unreasonable.

    4. And, finally, if we do go to a trial, I suppose we can put our agreement on all the corollary relief issues into a "consent order" since I do not foresee that we will be litigating any of them. Not sure of the mechanics though.
    It doesn't matter. Over the next hours or days if you stay on this forum you will realize that your "stop the divorce" case is hopeless. You will never actually get to a trial.

    Comment


    • #3
      You want to force someone to stay married to you? Why would you want to do that? You are wasting precious time trying to make someone stay.

      Start working on shared physical custody, 50/50 child support, no spousal and a split of assets.

      All the rest is a waste of time and your spouse will basically screw you over in the process.


      Sent from my iPhone using Tapatalk

      Comment


      • #4
        Thank you for your insight, Janus. I was hoping, though, for a somewhat less emotional, and more on the points, reply.

        The unusualness of the situation, I think, is in our agreement on all corollary issues. Although maybe such cases do indeed settle before a trial.

        Almost impossible to object to divorce and it is almost always granted? Well, Dupere maybe old news, and someone who really wants a divorce may eventually get it.

        So, there is such thing as a "conditional separation agreement"?

        Can I or my spouse file a 12(6) motion with a conditional separation agreement in place? Just wonder if this is something I can bring up at a conference.

        Can such "conditional separation agreement" be eventually converted into a "consent order"?
        Thanks again.

        Comment


        • #5
          Originally posted by Sugg53 View Post
          I was hoping, though, for a somewhat less emotional, and more on the points, reply.
          I wasn't being emotional, just flowery

          On point answer: You are separated. Divorce will automatically be granted. Every single one of your other questions is completely irrelevant.

          Comment


          • #6
            Brampton33,
            I disagree with your statement that "if OP says we are separated - that is it". Look at all the caselaw that cites Oswell. It is when the COURT says we are/were separated, then we are separated. Granted, most disputes about the separation date that make it to court are actually equalization cases. Probably because in a "simple divorce" case parties eventually accept the inevitable and just move on, saving $$ on a trial. But it is not unusual for a court to find that separation occurred years after one spouse thinks it occurred.

            I would still like an opinion on "conditional separation agreement" and 12(6) motion to sever the divorce....

            Comment


            • #7
              The closesest I found were these two:

              K.L.S. v. D.R.S., 2012 NBCA 16 (CanLII), and
              O’Brien v. O’Brien, 2013 ONSC 5750 (CanLII)

              KLS is actually an interesting case, one of those family law decisions that made it to appeal. In a unreported trial decision the trial judge denied a petition for divorce. Both parties adopted the same position on appeal (wanted a divorce) and the appeal court, in a 2-1 decision, actually overturned the trial judge's decision. Both parties wanted a divorce, yet one appelate judge would still not disturb the trial J's findings that there were no grounds for it... Dupere, anyone?

              O'Brien is also a good example of how not to behave in a divorse case. And in O'Brien, actually the court ordered the divorce severed from the equalization claims, allowing Applicant to proceed with the divorce on uncontested basis (at para. 65).
              So yes, I am aware. Just wanted an opinion on the points...

              Comment


              • #8
                The cases you reference are thirty years or more old. A judge may not consider them to be recent enough to base their decision on not to mention that that all depends on if you get to trial. Which then begs the question of are you willing to spend tens of thousands of dollars to object to a divorce?

                You could file whatever you want, itís up to the court to determine what they split based on the arguments of both parties. Being nitty gritty and fighting over something like this makes a judge more inclined to side with the other party.

                If you agree on the elements within an agreement like support, asset split etc. but you want the other party to take some time to have some thought on either being separated or go for final divorce, you could suggest it in an offer. For instance, you offer all the financial and custody aspects but on the condition to you both take a year to decide if you officially divorce. Remembering though that your STBX may just put the time in and then file for divorce.

                Truly though, if your ex wants a divorce then they can petition the court for it and you could actually lose regardless of when you think you started living apart. As stated above, cases from 1980 and 1991 may have lost their relevance due to high cost of living and parties continuing to live together because of costs.

                What you have is a crapshoot and you wonít get good advice on this forum. You should really speak to a lawyer. Especially if you are leaning on case law from several decades ago.


                Sent from my iPhone using Tapatalk

                Comment


                • #9
                  Originally posted by Sugg53 View Post
                  I would still like an opinion on "conditional separation agreement" and 12(6) motion to sever the divorce....
                  I am not sure what you want. Does your agreement cover equalization? Let us assume that equalization results in you making a payment of $50,000.

                  Which of the following do you want:

                  A) You don't have to pay the $50k until your ex succeeds in getting the divorce, and if she doesn't get the divorce then you don't have to pay.

                  B) You pay the $50k now, but if your ex cannot get the divorce, then she owes you $50k

                  C) Something else?

                  *********************

                  That said, I'll also ask some other questions:
                  1) Are you still having sex with your ex?
                  2) Do you vacation together?
                  3) Do you present yourself in public as being together?
                  4) Do you eat meals together?
                  5) Do you go to social events together (eg. couple's nights out)?
                  6) Do you do each other's laundry?


                  I'm trying to figure out what makes you believe that you are not separated. Is your answer to all those questions yes?

                  Comment


                  • #10
                    Thanks rockscan. I only bring up Dupere because it is such an unusual case. I am aware that no judge would probably hold it as a precedent (although it is still cited once in a while for a list of factors).

                    And thanks for a suggestion on conditional separation agreement.

                    To add a bit of perspective, i think my spouse wants out, but we have a teen and a preteen, who are happy and well adjusted and love both parents, and there is no parental conflict or alienation. I think my spouse is very concerned about how children will see them being the initiator of the divorce, and that, despite our intent and agreement of joint parental decision making and 50/50 parental time, kids would "vote with their feet". It is not an easy situation. I honestly believe that staying together is in the children best interest, and even in my spouse's best interest (yes, I know, they know better) financially and in regard to the relationship with kids. No, we do not discuss any details with kids, and do not badmouth each other. But kids are old enough and they know the bare facts.

                    I think my spouse is concerned that if they live "separate and apart" enough during all this time, they will drift enough to be "separate and apart" from kids too. Because I am not stopping being a parent, and eating separate, and not spending time playing Scrabble all together, or all of us going for a hike, or visiting friends. I know, I know, "co-parenting post-separation" ( Volcko v. Volcko, 2013 NSSC 342 (CanLII), (aff’d 2015 NSCA 11 (CanLII)) vs "still not separated" ( Boyer v. Brown, 2019 ONSC 3011 (CanLII)) and it all weighs heavily on my mind...

                    Comment


                    • #11
                      Originally posted by Sugg53 View Post
                      To add a bit of perspective, i think my spouse wants out,
                      There is no think. If your stbx has a lawyer and filled out paperwork then there is no think. They DO want out.

                      but we have a teen and a preteen, who are happy and well adjusted and love both parents, and there is no parental conflict or alienation.
                      But being forced to stay in a marriage they donít want to be in, conflict will start. Kids stay well adjusted based on parents and the approach to parenting. ďNon well adjusted kidsĒ is not limited to divorce and there are plenty of kids who have no issues despite their parentsí divorce.

                      I think my spouse is very concerned about how children will see them being the initiator of the divorce,
                      How will the kids find that out? Are you going to say mom/dad want a divorce? Or mom wants to leave me? No, you tell the kids that you are getting a divorce and you love them and will work on making sure the kids continue to have a good life it will just be split between two houses. Kids are not stupid and are incredibly resilient. There are a lot more divorces now than when I was a kid. Itís all in how you manage it.

                      kids would "vote with their feet".
                      Kids vote with their feet when one or both parents are assholes, abusive or use them as pawns. Not to mention parents make certain rules and SUPPORT living situations. If you both work reasonably and encourage kids to split their time and work together, this doesnít happen.

                      I honestly believe that staying together is in the children best interest, and even in my spouse's best interest
                      Not always. Having lived with two parents who hated each other and did nothing but fight behind closed doors, I can safely say that fucks up kids more than divorce.

                      I think my spouse is concerned that if they live "separate and apart" enough during all this time, they will drift enough to be "separate and apart" from kids too.
                      So stop making them feel they need to do this. They donít want to be married and you are forcing them to put distance there. You are being unfair to your spouse and the kids which will lead to the resentment you address above.

                      You donít want a divorce, understood. But your spouse does and has moved to separate. You can continue to push an agenda that is unhealthy for everyone but you or you can work together to set up a healthy life. I know plenty of people who hate their ex but work very well for the kids. My oldest friend worked with her ex to have him move closer so the kids would spend equal time with him. Even went so far as to work with his new spouse to ensure they ate together as a family like at home. They hated each other but the kidsí relationship with their dad was more important than how much she hated him.

                      The bottom line is you both control how this impacts the kids. Instead of spending money on lawyers, work on an amicable split so you can keep the kids close to both of you and in their neighbourhood. Get them into therapy to work through their feels and ACTIVELY SUPPORT A HEALTHY SPLIT. Parents who raise up and support the other parent donít have alienation or issues with kids choosing homes.

                      You are focusing so much on not divorcing that you donít realize you are making this worse. Why on earth would you want to force someone to stay married to you? That is the biggest thing that will hurt the kids and drive them away from you.

                      Comment


                      • #12
                        Originally posted by Brampton33 View Post
                        I would suggest counseling to learn to cope with situation and accept the reality of what is likely to be a new reality.
                        This is excellent advice and I strongly encourage it. Divorce is a death of a marriage and requires grieving like any other death. Dealing with the whys and hows causes a lot more emotional stress than the process itself. Speaking to someone who is experienced in helping you through it will go a long way to supporting healing as well as the kids.

                        Talk to your family doctor or see if your municipality has a family service office that offers counseling.


                        Sent from my iPhone using Tapatalk

                        Comment


                        • #13
                          Thanks to everyone for their thoughtful comments and being a sounding board.

                          Comment


                          • #14
                            The perfect song for your situation

                            https://www.youtube.com/watch?v=kWD5gdpt4Dw

                            Comment

                            Our Divorce Forums
                            Forums dedicated to helping people all across Canada get through the separation and divorce process, with discussions about legal issues, parenting issues, financial issues and more.
                            Working...
                            X