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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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  #1  
Old 12-27-2012, 04:01 PM
Lava Lava is offline
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Default Separation Agreement not honoured

Hi all.

What started out as a straight forward separation has now become complicated with my stbx not honouring the separation agreement. We agreed to everything and had my lawyer write up the document. She offered to give me the marital home and some property we own. Our son would go and live with her during school and with me during the summer months. Currently she is living in another country but they are still Canadian residents.

She signed the agreement, without ILA even though she was advised to, she replied, in an email, that she felt a lawyer wasn't necessary. The document was returned to my lawyer and my son flew to her. Now she is contesting the agreement and said she only signed it so she can get our son. At no point did I ever deny her seeing our son, it was his choice to go and stay with her for the majority of the time. He couldn't go before the agreement signed since custody was stated in the agreement This is not the case since most of the financial details were agreed upon before the issue of where my son will live came up. She has now taken it to a lawyer to look it over and is planning on a going to court to change the agreement and go after half of the assets.

My question is, where would we have to go to court? The property is all in Ontario and the agreement was drawn up here, we were married in Ontario. However my son is in another country but if she wants to change the agreement then the part of child custody will also be back on the table. I read that the child custody will have to be held where the child is living but since they don't have a permanent place to live and are still residents here is this considered his home? Also, part of the agreement was to have my child registered in a school, (GR 9) which she has not done.

If the trial will be held here than she is just wasting her time talking to a lawyer from there.

Thanks for reading and for any help you can offer.
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Old 12-27-2012, 04:06 PM
standing on the sidelines standing on the sidelines is offline
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you do realize the way you put it makes it sounds as if you traded your child for material things?
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Old 12-27-2012, 04:18 PM
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Quote:
Originally Posted by standing on the sidelines View Post
you do realize the way you put it makes it sounds as if you traded your child for material things?
I know but I am trying to keep the post as short as possible. I reworded it and put more detail,
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Old 12-28-2012, 12:19 AM
FightingForFamily FightingForFamily is offline
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Quote:
Originally Posted by standing on the sidelines View Post
you do realize the way you put it makes it sounds as if you traded your child for material things?
You do realize this is how it generally goes right? In divorce negotiations there are only really two commodities of value:

1. Time with kids
2. Dollars

In order to get one, you usually have to sacrifice the other. I'm not saying it's right or fair, but I can SERIOUSLY put an exact price in dollars and cents on what it cost me to have joint custody vs letting her have sole custody.

My lawyer tried to warn me this is how it always go early on, and they were definitely correct.
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Old 12-28-2012, 03:51 AM
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arabian arabian is offline
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What a sad story. I am not well-versed in child custody at all but I believe that the two of you agreed in principal on something. Your ex broke the terms of the agreement.

I would then proceed legally with the thought that the deal you had negotiated in good faith is now "off the table" and your lawyer should proceed with having the child returned to his country of citizenship.

Only after the child is returned to Canada would I agree to commence re-negotiations.

I believe this is how business is conducted and unfortunately marriage is like a business.

Just my opinion....
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Old 12-28-2012, 07:17 AM
Lava Lava is offline
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What gets me is that we negotiated back and forth through e-mails until we came up with something we both agreed on. I don't know if they would have any value in court but they would show that both of our conditions were put into the agreement, it wasn't one sided. The only stipulation I had for my son was that he be enrolled in a school which she has not followed through on. Now she decides that she wants to void it, I wish I could do the same with the marriage contract.

I don't think she realizes how much court time this will take up. Since she would most likely have to spend a lot of time here, she wouldn't be able to fly in every time we go to court, about $2k round trip. If she stays in the country she would have to bring my son back with her. I also have an adult son who is staying with them but he is not a legal guardian so I would protest if she left my younger son with my older one while we are in the courts.

Arabian, waiting until my son is back here before re-negotiating is a good idea since the custody is part of the agreement. This way the custody battle will be based on Canadian law.
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Old 12-28-2012, 09:23 AM
standing on the sidelines standing on the sidelines is offline
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Quote:
Originally Posted by FightingForFamily View Post
You do realize this is how it generally goes right? In divorce negotiations there are only really two commodities of value:

1. Time with kids
2. Dollars

In order to get one, you usually have to sacrifice the other. I'm not saying it's right or fair, but I can SERIOUSLY put an exact price in dollars and cents on what it cost me to have joint custody vs letting her have sole custody.

My lawyer tried to warn me this is how it always go early on, and they were definitely correct.
Yes I do realize how it goes. Just remember the original post was re-worded after I made my comment. He had left out the part about getting the child for the summer. Before it sounded like he got everything and she got the child.
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