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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 05-29-2020, 02:14 PM
Tbaga Tbaga is offline
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Default Urgent advice on what should be included in a divorce Order

Here's my situation. Finally, after 3 years, we have a signed separation agreement, following all proper steps. Now, I'm turning my attention to filling out the divorce forms, but I am getting stuck at section 8 of Form 36 (Affidavit for Divorce). In section 8, you can explicitly list, for instance, all the paragraphs in the separation agreement that you desire to incorporate into a divorce Order.

Is this a good thing to opt to do, especially with regard to spousal support clauses in the separation agreement? Did anyone gone through this process, and what did you do with section 8 of Form 36? Is it a better way to mitigate future request to variation in spousal support due to material change in circumstances? I really need some help with this, so I can proceed completing all the divorce forms.
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Old 06-01-2020, 04:02 PM
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Over 140 views but not a single reply! Please, I beg this forum members to provide as much help as possible. Thank you.
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Old 06-01-2020, 06:32 PM
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Quote:
Originally Posted by Tbaga View Post
In section 8, you can explicitly list, for instance, all the paragraphs in the separation agreement that you desire to incorporate into a divorce Order.

Is this a good thing to opt to do, especially with regard to spousal support clauses in the separation agreement?
Given that you are the support payor, I'm not sure how it helps you to incorporate anything in the court order.

If you were the support recipient, then you definitely want support provisions of the signed separation agreement in the court order so that you could get it enforced by FRO or other maintenance enforcement agency.

I'd be hard pressed to think of any clauses that need to be in the court order.
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Old 06-01-2020, 08:07 PM
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Given that you are the support payor, I'm not sure how it helps you to incorporate anything in the court order.

If you were the support recipient, then you definitely want support provisions of the signed separation agreement in the court order so that you could get it enforced by FRO or other maintenance enforcement agency.

I'd be hard pressed to think of any clauses that need to be in the court order.
Thank you Janus. That was exactly my thinking, but my lawyer thinks that is not prudent.

Here is how my lawyer explained it: No matter what the agreement says about the spousal support, my ex can always can come back, claim material change in circumstances and apply to the court for variation. There are several court precedents to illustrate that. But the key is this. If the court accepts my ex claim of material change, and when the spousal support clauses are made part of the divorce order ( section 8 of Form 36), the court is limited to only examine these clauses. However, if the SS clauses are not part of the divorce order, the court will consider my ex's request of SS as if it was an initial application for ss, from scratch.

In other words, and in the latter case, the court will ignore or set aside all the paragraphs in the separation agreement regarding ss. This mess is apparently caused by the fact that once we're divorced, the Family law act has no jurisdiction to consider the request for SS variation (it is only valid for married/separated people). If the clauses of SS are not part of a divorce Order, the divorce act cannot treat an application for variation, because it can only vary an existing order. Therefore, based on previous case law, the court instead treat the request for variation under section 17 of the divorce act, as an initial application. The latter worries me, because my ex could win.
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Old 06-04-2020, 11:57 AM
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Through the years I have read many cases on CanLii and one common thing that stood out to me is judges, when reviewing long-standing SS applications, often go back to what the intention was at the beginning... It is not uncommon for judges to look at communication between people, whether it was incorporated into an agreement or not.
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Old 06-04-2020, 12:50 PM
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Thank you arabian for the insight. I'll make sure to archive all the communication that lead to the agreement.

Both our lawyers and we think the separation agreement we have is fair. In fact it's slightly skewed towards my ex in terms of advantage. What I see as possible weakness in our SA is the fact that we didn't explicitly use spousal support guidelines to arrive at the amounts explicitly mentioned in our SA. Instead we used asset transfers and additional fixed term spousal to satisfy spousal support terms. My ex's employment record is spotty; she kept switching jobs and not being able to secure full term (indeterminate) employment in the past, despite her advanced education. Therefore, that is why I worry that once the term SS and CS end, and she still cannot secure a good job, she can always come back and ask the court to vary spousal support terms in the agreement, despite the release clauses. Although I cannot prevent that from happening, I am trying to see ways to reduce the chance of her succeeding in varying the terms of the agreement; hence my query whether it is better or not to include the spousal support terms, including the release clauses in the divorce order or leave them out.

My lawyer thinks it is better to incorporate them in the divorce order to limit future variation motion to the clauses in the order; otherwise the case follow the path of initial application. I prefer the second path, the initial application, because I believe the SA is fair and follows the spirit of both the Divorce Act and Family law act, and according to case law (Miglin) it is much more difficult for my ex to succeed under the so-called the Miglin challenge as compared to the situation when spousal terms are part of the divorce order and require to past the material change of circumstances test only.
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