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  • Seperation Agreement - Have to start new application?

    Hi All,

    After almost 4 years of my ex not following our separation agreement (which I thought was an order), I've been told by the courts that I have to start a new application all over again. AHHHH! The agreement was settled between two lawyers and signed off but I've been told it was submitted with the divorce but that was it. I have to start a new application. There are some things from the first agreement I'd like to keep but most would need to change. I'm wondering where do I even begin...first time I did it with a lawyer (in the heat of emotions) and now I'm going to go it on my own and hire a lawyer when need be. Any suggestions? Appreciate your help.

    TIA!

  • #2
    What is it that you like to change in your agreement? You cannot file new separation agreement when you are already divorced.

    Comment


    • #3
      I'm looking to change custody/access and the way things are being handled in terms of parenting/holidays/travel/etc.

      Comment


      • #4
        This is confusing. Are you actually divorced yet? If so, what does your divorce order say about travel, holidays, etc? Did your divorce order incorporate your separation agreement? Are you seeking changes to the existing order, or are you seeking a new order which addresses issues not addressed in the existing order?

        If you are not yet actually divorced, you can't start a new application for divorce while an old one is still moving forward. If you or your ex filed for divorce in the past, you (or she) would have to withdraw that application before you can initiate a new one. Only the person who submitted the application for divorce (the applicant or the plaintiff) can withdraw the application.

        Comment


        • #5
          Not at all trying to be confusing. Been separated for 4 years and now divorced for almost 3. The other party is not abiding by the final agreement that was signed with two lawyers present. That agreement was submitted with our divorce and approved. I've been told in order to change custody/etc, that I have to now start a new application before the courts as the agreement we have is not considered a "final order" and therefore I need to start at the beginning. Does this sound correct? If so, where do I begin?

          Comment


          • #6
            Originally posted by vocalfather View Post
            Not at all trying to be confusing. Been separated for 4 years and now divorced for almost 3. The other party is not abiding by the final agreement that was signed with two lawyers present. That agreement was submitted with our divorce and approved. I've been told in order to change custody/etc, that I have to now start a new application before the courts as the agreement we have is not considered a "final order" and therefore I need to start at the beginning. Does this sound correct? If so, where do I begin?
            Your first order of business is to determine if the element of the agreement can even be enforced. For example, there are MANY clauses of a separation agreement that cannot be enforced.

            Every day in every court house there is at least one justice explaining to both parties why the agreement they have is unenforceable.

            A primary example is the use of daycare. If a parent chooses not to use daycare in a 50-50 situation you would be hard pressed to find a judge to order that parent to NOT care for their children. No matter how iron clad the agreement is written.

            Courts will not enforce many elements of the agreement.

            Second, if the element is enforceable then, it would more than likely be an extension of the existing application. That is, if you are only looking to enforce what was agreed upon. The only time you have to rely upon a material change is when you are trying to change the terms of the agreement. (Say from joint custody to sole custody...)

            So, if you are simply looking to have the order enforced then you can bring a motion forward to do so. No need for a material change, the fact that the other party is not abiding by the agreement is material enough.

            Only thing courts will really deal with is access schedules and *major* custody issues. When I say major it is things like surgical procedures... Not who takes the kids to the doctors appointments - that is nonsense and a nuisance to the courts. The Applicant who brings something so silly forward generally gets a long lecture about wasting the courts time with nonsense...

            Everyone should have to sit through 3 weeks of motions before bringing a motion. There would be a lot less log jam in the court system because 9 times out of 10 the matters are thrown out the window.

            Good Luck!
            Tayken
            Last edited by Tayken; 07-01-2014, 11:15 AM.

            Comment


            • #7
              Hi Tayken,

              Thanks for your reply. I wish it was as simple as wanting to simply enforce the order. The other party has consistently used Police/CAS/Etc. falsely for the last 4 years, blocked travel, made decisions as a shared custody parent that overrule the agreement and simply refuses to be peaceable. The other party refuses to communicate through a service like my family wizard/etc and continues to exploit and abuse the phone/text/email lines of communication. Police and a duty counsel lawyer have all made it clear that this is a shared parenting/joint custody arrangement that will not work. So now I've been told I have to go back and start with a new application and I have no clue where to even begin.

              Comment


              • #8
                Originally posted by vocalfather View Post
                Hi Tayken,

                Thanks for your reply. I wish it was as simple as wanting to simply enforce the order. The other party has consistently used Police/CAS/Etc. falsely for the last 4 years, blocked travel, made decisions as a shared custody parent that overrule the agreement and simply refuses to be peaceable. The other party refuses to communicate through a service like my family wizard/etc and continues to exploit and abuse the phone/text/email lines of communication. Police and a duty counsel lawyer have all made it clear that this is a shared parenting/joint custody arrangement that will not work. So now I've been told I have to go back and start with a new application and I have no clue where to even begin.
                Communicate LESS with the party. NOT MORE. Many parents fail to realize that in a situation where there is consistent (and shared) residency (access) little communication is needed. Simply parent the children in "parallel" of the other parent and IGNORE the majority of the communications.

                You don't have to go back. You can simply learn how to properly identify RELEVANT material and ignore that which is NOT RELEVANT. You can do this simply by buying a book. I would recommend anything from Mr. William Eddy of the High Conflict Institute.

                There are very few incidents where parents need to agree on "custody". School (where to attend), major medical procedures, and travel outside of the country. Other than that... The day-to-day issues SHOULD NOT be discussed with the other parent.

                Over communication is the fuel to the high conflict fire. Learn how to communicate less and WHEN to communicate and the CAS will be called less and the police will be called less generally.

                Also, you need over 5 incidents with the CAS and 5 incidents with the police over 12 months and consistently to have relevant evidence to get a justice to listen to you.

                So if you are upset because someone called the CAS once in the past or the police were involved once... I point you in the direction of CanLII to see what truly is "high conflict"...

                Good Luck!
                Tayken

                Comment


                • #9
                  Tayken, totally agree with you my friend. Love Mr. Eddy's stuff - purchased his book two years ago and have tried to follow it to a tee. I've had 3 major incidents (false) with CAS in the last 3 years and 7 police incidents (false) this year alone. They told me next time she will be charged with public mischief (they've said this the last few times). She refuses to follow any part of the order including the part about mediation if there's any issues. She's taken our daughter and ordered battery of tests from docs with my knowledge until my family doc alerted me. She's also refused to let me travel. After discussing this with the duty counsel, he advised I have to go back to court. He said I have to file an application and start over, have our agreement filed with the courts as and order and have it enforced.

                  I'd like to "parallel" parent but the other party makes it impossible. This year alone I have received well over 2800 emails. I have replied to 26 of those as they were relevant. She is inciting dramatics. These dramatics now are spilling over into our children's lives. I need some formal structure in place so this stops because she feels she is above the agreement and the law!

                  Comment


                  • #10
                    Originally posted by vocalfather View Post
                    Tayken, totally agree with you my friend. Love Mr. Eddy's stuff - purchased his book two years ago and have tried to follow it to a tee. I've had 3 major incidents (false) with CAS in the last 3 years and 7 police incidents (false) this year alone. They told me next time she will be charged with public mischief (they've said this the last few times).
                    I would recommend you wait until the police make their statements true. Having seen now the police incident reports the police are going to react less and less to the frantic calls from this person. They will also start to coordinate their efforts with the CAS. You are probably at a point where CAS will simply call to say hi and let you know that they got another complaint about the same or similar things. The paper trail eventually catches up to the persistent blamer.

                    3 incidents in 3 years with CAS is not really that much. I know that sounds silly but, in comparison to what the courts see it is not a large number of incidents... 1/year. They commonly see issues of a phone call a month/week!

                    Originally posted by vocalfather View Post
                    She refuses to follow any part of the order including the part about mediation if there's any issues.
                    See, that is your problem. A court cannot enforce a clause to bring a matter to MEDIATION. They can only enforce a clause to bring a matter to ARBITRATION.

                    The other party may have figured out that most of the contract is unenforceable. You need to realize that too. Especially all the stuff about "communications".

                    Originally posted by vocalfather View Post
                    She's taken our daughter and ordered battery of tests from docs with my knowledge until my family doc alerted me.
                    Does the doctors and other service providers have the agreement/order? If they do, then they are on the hook to get informed consent from both parents. Your cheaper, less conflicted and better way to resolve this issue is to simply serve copies of the agreement/order on these professionals. They will know what to do and are legally obligated to obtain your consent per the court order and their governing body's rules.

                    I would also serve it on the various hospitals and the clinics all within a 2-3 KM range of the other parent's residence.

                    Originally posted by vocalfather View Post
                    She's also refused to let me travel. After discussing this with the duty counsel, he advised I have to go back to court. He said I have to file an application and start over, have our agreement filed with the courts as and order and have it enforced.
                    Does the agreement state anything about passports and travel? If not you just need to bring a small application about travel. Don't BOIL THE OCEAN when seeking resolution. Many people do this and never resolve the simple issue they needed resolved.

                    Originally posted by vocalfather View Post
                    I'd like to "parallel" parent but the other party makes it impossible.
                    You have expectations (see above) that are unrealistic. You would be best served by retaining a qualified lawyer to explain to you what elements of your agreement if brought to court to enforce would be useless. I have learned that the vast majority of "agreements" are useless.

                    Originally posted by vocalfather View Post
                    This year alone I have received well over 2800 emails.
                    Have they caused you harm in any way? I am not trying to be mean but, putting forward the question to make you think. So, you have had to ignore 2774 emails this year is what you are saying. Yes, tedious to do but, certainly not something I would recommend trying to have a court resolve.

                    The only thing that could stop that would be a restraining order which courts will not order generally. The court can't enforce any clauses where people agree to restrict communications (1 email per week). They are "nice to have clauses" that can't be enforced.

                    Originally posted by vocalfather View Post
                    I have replied to 26 of those as they were relevant. She is inciting dramatics. These dramatics now are spilling over into our children's lives. I need some formal structure in place so this stops because she feels she is above the agreement and the law!
                    I suspect that she has realized that the agreement is a "good faith" one and not enforceable and is only abiding by that which can be enforced. I recommend you do the same so you can realize this too and not "feel" like you are being abused and/or the agreement is being abused. 9 times out of 10 the agreement isn't worth the paper it is written on. (See my mediation clause argument above as a case-on-point.)

                    Good Luck!
                    Tayken

                    Comment


                    • #11
                      Sound advice Tayken. Question though, I was told that if I bring an application, let's say re: travel only, can't she come back with an answer and open a whole can of worms/issues and then I'm forced to deal with those too? Also, by at least filing an application with these issues, isn't it at least documented if there is further issues?

                      The other problem I'm having is that my agreement on some issues ie: support seems open-ended ie: the parties will contemplate a new amount each year based on incomes. She is refusing. I have always paid my offset support on time and she's now threatening to go to FRO. The amount she is paid now is based on both incomes and an imputed amount from social services as she has put herself below an income level. I'm just concerned FRO will open up another can of worms. Any thoughts there?

                      Comment


                      • #12
                        Originally posted by vocalfather View Post
                        Sound advice Tayken. Question though, I was told that if I bring an application, let's say re: travel only, can't she come back with an answer and open a whole can of worms/issues and then I'm forced to deal with those too?
                        Yes. The other party can bring forward whatever they want in reply. But, they will have to demonstrate evidence that meets the very difficult threshold of a "material change in circumstance". It will often look silly in reply because if they are substantial issues someone will simply question why they are coming only in reply to a simple application. (For example, justices often point out this flaw in trying to claim "violence and abuse" in accordance with Rule 24.(4) to something trivial to determine.)

                        The other alternative is to not travel with the child. Many Canadian children never leave their home province let alone the country. So, if the trip is for a family vacation it may not be worth the cost (financial and emotional) to bring the matter to court.

                        Originally posted by vocalfather View Post
                        Also, by at least filing an application with these issues, isn't it at least documented if there is further issues?
                        I do not understand the question.

                        Originally posted by vocalfather View Post
                        The other problem I'm having is that my agreement on some issues ie: support seems open-ended ie: the parties will contemplate a new amount each year based on incomes. She is refusing. I have always paid my offset support on time and she's now threatening to go to FRO.
                        Did you both opt-out of FRO for the payment of child support? It would be ill advised of her to go to FRO to seek collection when you are paying. This would force you to bring a 15A motion each year to adjust if you were not provided the information. FRO isn't much (if any) help in matters.

                        I wouldn't worry about FRO. They just simply facilitate the payment of CS. If FRO is involved it gives you great grounds to bring a 15A motion to update the yearly child support and get necessary disclosures.

                        You really really really need a lawyer to help you.

                        Originally posted by vocalfather View Post
                        The amount she is paid now is based on both incomes and an imputed amount from social services as she has put herself below an income level. I'm just concerned FRO will open up another can of worms. Any thoughts there?
                        FRO can only collect what has been agreed to or ordered. They can't change the CS payments. You have to bring a 15A forward.

                        You should really be talking to a lawyer about all this.

                        Good Luck!
                        Tayken

                        Comment


                        • #13
                          Would a peace bond be appropriate in this situation of constant police intervention and false information being presented?

                          Comment


                          • #14
                            Originally posted by vocalfather View Post
                            Would a peace bond be appropriate in this situation of constant police intervention and false information being presented?
                            No. Nor would a family law restraining order. You still need to maintain some form of communication. Also these things cause WAY MORE CONFLICT than they are worth. Also, this will give the other party the opportunity to seek the police's assistance as the VAST MAJORITY of restraining orders in Family Law matters are generally made MUTUAL (meaning both parties are restrained from communicating with each other).

                            So, this will give the other party exactly what they may want. The ear of the police and something they can seek charges on. Even if it is you replying to them simply stating to not contact you. You both will be charged possibly in that matter.

                            See this thread:

                            http://www.ottawadivorce.com/forum/f...w-cited-13457/

                            And Shaw v. Shaw

                            CanLII - 2008 ONCJ 130 (CanLII)

                            Honestly, the resolution is to ignore it and roll with the punches. I know this advice sucks to hear but, it is the best I can offer. COMMUNICATE LESS. WAY LESS.

                            Conflict is more damaging to children than communications over minor unimportant things... If the communications lead to police, CAS and other nonsense. Then, it is better to not respond at all.

                            Good Luck!
                            Tayken

                            Comment


                            • #15
                              Totally agree. I've avoided conflict like the plague for the sake of our kids and still do. I just didn't know if she could/would be successful in getting a restraining order/peace bond, especially given the fact that nothing has been done to her. Calling on agreed times once or sending a text to say, please have them call me is apparently her version of harassment. This is why the police have constantly shut it down.

                              Comment

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