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  • My Ex wants to open separation agreement...Can She?

    Hi this is my first post so thank-you for your time.

    After finding out about my wife's adultery a year ago and given her past physical violence to me (no police reports), I decided to leave the marriage.

    We agreed on mediation and after 4 months of mediation we reached an agreement.

    I stayed in matrimonial home. The real estate agents were listing it at $310,000, to avoid conflict I offered to value the house at $325,000.

    I came into marriage with $50,000 in net worth, my ex was $-10,000.

    In order for her to purchase a new condo I co signed and did not request an equalization payment (would have been in my favour). I left her RRSPs and her small pension at her work.

    In exchange she left my pension. Total contributions to my pension during marriage were $22,000.

    We share custody. I make $77,000 she makes $34,000. plus $9000 from govt and I pay $800 CS and $200 spousal plus pay all daycare her cell phone bill $50 and another payment of $80. SS for 2 year duration on a 6.5 year marriage.

    I have recently started dating and she wants revenge and hired a lawyer. her lawyer wants agreement thrown out because she didnt get legal advice (she signed release) and that the agreement is grossly unfair because she didnt get half my pension and SS should be indefinate and is under paid. also said she was hoping to reconcile during mediation and that created unfair balance of power (we never tried...no sexual contact seperate beds etc)

    Will she be able to open agreement? I do not want big lawyer bills.

    thanks

  • #2
    Absolutely she can revisit/question and try to ammend the agreement. Unfortunately most court battles are born out of vengence. Good Luck, Fam Law

    Comment


    • #3
      The short answer? Yes, highly likely she will be able to reopen the agreement, especially if when she signed the release she did not obtain independant legal advice.

      Comment


      • #4
        What is the point of mediated settlements then if she isnt bound by it?

        She signed a waiver releasing legal advice, does that not matter? how do you force someone to get legal advice?

        Comment


        • #5
          If your Mediator did not explain the legalities of a mediated separation agreement with you, then he/she did not do his/her job.

          The only time an agreement becomes legally binding, is after each party has obtained independent legal advice.

          Without it, either party can complain that the did not understand the terms, or it was negotiated in bad faith, etc. and BAM... off to court you go.

          Comment


          • #6
            She's welcome to open it but it doesn't sound like most of what she wants she would get anyways. I haven't done the math, but what does mysupportcalculator.ca tell you about your amounts of CS and SS? At a glance they look reasonable.

            Covering 100% of daycare and some other expenses is actually overkill. Your ex should be covering her own bills and 30% of the daycare expense.

            Also feel free to pursue the equalization payment although if it has been more than 2 years this might not work.

            If you are sharing custody, feel free to file for CCTB benefits with the government. You will get half and she will lose half of hers.

            You gave her an extremely generous settlement and she wants to complain, I hope that you could make a counteroffer based on the law instead of your heart.

            In any case, in court it sounds like most everything in your settlement would be enforced, and her lawyer is just looking to milk her for money.

            Comment


            • #7
              The mediator you had should have told you that you both needed independent legal advice to make the agreement binding. Without that, there's no guarantee that either of you fully understood what you were signing, and it can be rendered void.

              However, it doesn't sound like it was all that bad of an agreement, so aside from a potential legal battle, you may not end up with something dramatically different. In fact, you may be better off if it means that you take the opportunity to sever all financial connections to her, such as cosigning for her condo. If she defaults on that, you'll be on the hook! That would be much worse vengeance, so you better hope it doesn't occur to her. And don't pay her cellphone bill specifically, just add the money to the spousal support. Be glad her vengeance is limited right now to trying to make the agreement legally binding.

              Sure, she can demand half your pension if she wants to reopen equalization, but then you can demand half hers and half the RRSPs she kept. And you can also insist that she pay her proportional share of daycare. She may not even have a good entitlement to spousal support, if she worked throughout the marriage and her career wasn't impacted. Maybe she'll soon see that she is trying to fight for a smaller amount than her legal bill will be.

              It doesn't sound like you are fighting over custody, so if you can keep it that way, that's the biggest benefit. Whatever happens, make sure you pay proper child support according to the tables, offset for your shared custody. There's no way she could get indefinite spousal support on a six year marriage. The lawyer advising her to go for that is just feeding her desire for vengeance to inflate his bill. You can avoid big lawyer bills by doing lots of research yourself, such as you are doing here.

              And yes, a seemingly amicable split often takes a sudden turn when a new partner becomes involved. Always best to get everything properly finalized before dating again.

              If you have to become more forceful, stop doing anything you agreed to. Pay offset child support table amounts only, no spousal support, none of her bills, daycare proportional to income, etc. If she considers the agreement invalid and is trying to fight you with a lawyer, why should you hold to it?

              Use http://www.childsupportcalculator.ca/ontario.html to find out the child support amounts for each of your incomes. Only pay her the difference.

              Make sure the fight doesn't spill over and affect your children, or the custody/access arrangements.
              Last edited by Rioe; 05-23-2012, 10:03 AM.

              Comment


              • #8
                Originally posted by Exquizique View Post
                The short answer? Yes, highly likely she will be able to reopen the agreement, especially if when she signed the release she did not obtain independant legal advice.
                She signed a waiver of independant legal advice that means she is LESS likely to be able to revisit the agreement then not signing the waiver of ILA. Unless she doesn't have the mental capacity to understand what she was signing, the waiver will be a large factor.

                Now, that doesn't mean she won't be able to re-open the matter.

                As for spousal support, you do pay on the low end of the spectrum. But she would have to prove entitlement before she gets any anyway. Did she quit a well paying job to raise the kids? Did she work less for the benefit of the family? Those would be factors to determine entitlement.

                Duration is normally .5 - 1 year for each year of marriage. So you'd normally be looking at 3.5-6.5 years of support. She agreed to 2, which is lower.

                If you share custody (meaning you each have the kids between 40-60% of the time) you should be paying the offset amount for child support. So if she had sole custody, you'd pay her (assuming 2 kids in Ontario) $1,133. If you had sole custody she'd pay you $495. So the simple offset of that is $638. So it looks like you may be overpaying for child support.

                Also, she should be paying her proportional share of daycare expenses. So if daycare is $1000 a month, you guys have a combined income of close to $100k, so you'd pay $700 and she'd pay $300.

                You should not be paying any of her bills ie. the cell and the $80 other bill. You are divorced, outside of the kids there should be no connections.

                So, while she may gain some in spousal amount and duration, she is likely to lose in c/s and daycare. So from here, it is equalization that becomes a factor. Your pension and her RRSP's would have come into play and it may be likely that they cancelled each other out.

                While you did mention you did value the house at $325k, did you actually buy her out? That wasn't mentioned in your post.

                Comment


                • #9
                  Think of it this way. If you came to an arrangement that was "by the book" in terms of equalization, CS, and SS, but she didn't get independant legal advice, then in theory she could reopen it, but for what purpose? It would be laughed out of court.

                  From My Support Calculator
                  <TABLE border=0 cellSpacing=0 width="100%"><TBODY><TR><TD style="BORDER-BOTTOM: black 1px solid" width="70%">Parties</TD><TD style="BORDER-BOTTOM: black 1px solid; TEXT-ALIGN: right" width="15%">Party A</TD><TD style="BORDER-BOTTOM: black 1px solid; TEXT-ALIGN: right" width="15%">Party B</TD></TR><TR><TD>Age</TD><TD align=right>42 years</TD><TD align=right>37 years</TD></TR><TR><TD>Annual Gross Employment Income </TD><TD align=right>$77,000</TD><TD align=right>$34,000</TD></TR></TBODY></TABLE><TABLE border=0 cellSpacing=0 width="100%"><TBODY><TR><TD width="70%">Province </TD><TD width="15%" align=right>ON</TD><TD width="15%" align=right>ON</TD></TR></TBODY></TABLE><TABLE border=0 cellSpacing=0 width="100%"><TBODY><TR><TD style="BORDER-TOP: gray 1px solid">Date of Marriage or Pre-marital Cohabitation</TD><TD style="BORDER-TOP: gray 1px solid" align=right>January 1, 2005</TD></TR><TR><TD>Date of Separation</TD><TD align=right>July 1, 2011</TD></TR><TR><TD style="BORDER-TOP: gray 1px solid">Length of Marriage (including period of pre-marital cohabitation) </TD><TD style="BORDER-TOP: gray 1px solid" align=right>6 years</TD></TR></TBODY></TABLE><TABLE style="MARGIN-TOP: 15px" border=0 cellSpacing=0 width="100%"><TBODY><TR><TD style="BORDER-BOTTOM: black 1px solid" width="40%">Children </TD><TD style="BORDER-BOTTOM: black 1px solid" width="20%" align=center>Current Age</TD><TD style="BORDER-BOTTOM: black 1px solid" width="40%" align=right>Lives With </TD></TR></TBODY></TABLE><TABLE border=0 cellSpacing=0 width="100%"><TBODY><TR><TD width="40%">Child 1</TD><TD width="20%" align=center>6 years</TD><TD width="40%" align=right>Shared</TD></TR><TR><TD width="40%">Child 2</TD><TD width="20%" align=center>5 years</TD><TD width="40%" align=right>Shared</TD></TR></TBODY></TABLE>
                  Child Support - CSG Table Amount
                  Party A pays Party B child support of $638 per month , as a starting point subject to further adjustments, according to the Child Support Guidelines ("CSG").
                  Child Support - CSG Special Expenses
                  In addition to the CSG Table Amount above, the parties must both contribute to the children’s Special Expenses (eg. child care, medical expenses, extraordinary educational expenses, post-secondary expenses, and extraordinary extra-curricular activities), if any. The amount of each party’s contribution depends on a comparison of the parties' incomes; the party with more income will pay a larger share of the Special Expenses.
                  Spousal Support - SSAG
                  If entitlement to spousal support is established, in addition to any child support to be paid by either party above, Party A pays Party B spousal support in an amount to be determined between $0 and $642 per month (with a midpoint of $302 per month) for a period to be determined between 3 to 14 years from the date of separation, according to the Spousal Support Advisory Guidelines ("SSAG") - "With Child Support" Formula.
                  Monthly payments of spousal support are taxable to the recipient and tax deductible to the payor, if made pursuant to a written separation agreement or court order.
                  The only place you are vulnerable is with length of Spousal Support. Note that the software is considering that she may be a stay-at-home mom during the children's school years. Since she is employed full-time, and they are in daycare, the 14 year length can be disregarded. Notice that the mid-point for spousal is $302, which you are exceeding by paying her bills.

                  Her lawyer will tell her whatever creates the most conflict/billing, based on her side of the story.

                  In addition to the support calculations, you state that the equalization would have been more in your favour.

                  If this were me I would do the following. Send her a polite, professionally worded, non-threatening, non-critical letter with a copy to her lawyer. Quote the exact result of the MySupportCalculator the way I did above with your accuate data entered. (I woud delete the 14 year possibility. It is not a likely court result, but would put ideas in her head.) Calcualte the daycare proportionate to your income. Note what the equalization would have been had it been in your favour.

                  Note that by CRA rules you should be collecting the CCTB 50%. Offer to maintain the situation where she collects the benefit (I presume this is the case. Once you inform the CRA to change the custody you can't go back.) Note that she is claiming the equivalent to spouse deduction for both children. If the CRA sees the children as living with her primarily, she would have to be the one claiming the childcare tax deduction. Offer to maintain that situation. State that the current situation is to her benefit, and you are willing to maintain the status quo.

                  State however that if she takes you to court you will seek the Guideline amounts and full equalization, and since your offer is generous, you will seek costs. Suggest that she rethink her current position on this, she has nothing to gain and much to lose. State that maintaining an amicable relationship is in both of your best interests, as well as the children's, and a legal challenge will only create more animosity on both sides.

                  Comment


                  • #10
                    Thank you all so much for the advice. It actually upsets me greatly as I feel I was very fair for the kids sake and wanted her to have a good start with new place.
                    I knew I was taking a risk with co signing but wanted a nice place for my kids to live.

                    I have now received 3 emails from her lawyer demanding a response and my lawyers name. I emailed my wife stating my position and that she will owe me money with an equalization payment, but I didnt want the money unless she re opens the agreement.

                    The lawyer emailed me again saying I am harassing and bullying her client with law inaccuracies.
                    I told her lawyer not to contact me via email again and gave her my home address for correspondence. I told her I am currently on disability for a work injury and I am working on securing a retainer.
                    She emailed me again today (after I told her not to) saying she is filing a motion if she does not hear from my attorney is 7 days.

                    Crazy stuff.

                    I feel her lawyer is harassing me.

                    Comment


                    • #11
                      The lawyer is trying to browbeat you into caving in before you figure out that you are in the stronger position. Don't fall for the tactics. Also, think about it; the more emails she sends you, the more she can charge your ex. Wait a few days (she gave you seven), then notify the lawyer that you are self-representing, and that you would be happy to entertain any reasonable adjustments to the previous agreement. Indicate that you felt that the agreement was more than fair, but are interested in hearing what they would like to change. Then the expense of drafting up a new separation agreement falls on your ex. Once you have their offer, then you can back and forth with it as much as you like before you take it to a lawyer of your own.

                      If you are still on speaking terms with the ex, see if you can have a conversation about how arguing over the agreement like this is just going to be a huge legal cost which wouldn't benefit anybody. Point out that if you end up in court on this, equalization could be reopened, CS could be reduced to table amounts, and she could have to start paying her share of daycare.

                      Oh, and don't volunteer any personal info to the lawyer such as being on disability. And in case it isn't obvious, don't flaunt the new girlfriend or remind the ex that you are dating in any way, and definitely don't move in with her until the dust is well-settled. Your ex is running on emotional responses right now, and you need her being logical. It isn't right, but it's necessary.

                      Comment


                      • #12
                        Great advice thank you. This lawyer is very aggressive and in my opinion un professional sending emails.
                        They do know that I am on disability as I am caring for the children on days outside my 50% of the time.
                        I have had my income reduced 35% yet have still been paying full support etc.

                        My ex truely believes that she has been "ripped off" and feels empowered that a lawyer has validated her feelings. She is a very abusive angry person and hates that I have moved on.

                        Her lawyer is from a different city, is it not true that any court procedings or filings will have to be in the city where the children reside? I am wondering why she has a lawyer that is a two hour drive away. I am thinking she is a friend.

                        Comment


                        • #13
                          Are you and your ex in the same city? Correct, she shouldn't be filing outside the jurisdiction. That will cause additional billing by the lawyer for travel.

                          Email the lawyer and ask what she meant by legal inaccuracies. Come back here for the answer to anything she says. It will be a fun way for us to waste your ex's retainer.

                          Don't get stressed, she is just blowing smoke.

                          Comment


                          • #14
                            Yes we both live in the same city, I believe this lawyer is a friend of a friend. I met with a lawyer yesterday and she said my ex would have a very difficult time opening the agreement and if she was successful she would owe me an equalization payment and I am over paying cs.
                            I am concerned that this lawyer is playing to my ex s anger and concerned she will waste our money which will affect our childrens lives as things are tight as it is.

                            Comment


                            • #15
                              Yes send the ex a note, Lawyers that do shock and awe tactic's are runnin scared there clients won't pay. Your ex must be made to realize it'll cost her thousands of dollars going forward, I'd suggest mediation(looks good in court)..and for her to think about things and get back to you...e.t.c..never be rushed....don't know if this lawyer is on record? not sure if this matters he could be a used car salesman

                              Comment

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