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declaring separation agreement invalid...possible?

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  • declaring separation agreement invalid...possible?

    I do understand that in Ontario (at least) separation agreements are virtually impossible to change or reverse but I do need to look into this.

    Basically my question is this: if key points in the separation agreement were based on knowingly falsified information (namely income) can this be used to have the agreement declared invalid or at least be used to have it reopened and adjusted? Can one party's mental health state at the time of the signing be used to claim that party was in an unfit state to enter into a binding contract like this? Basically there was a significant amount of income not declared by one spouse and the other spouse was being treated for serious mental health issues (including a full time placement in a daily treatment program and multiple medication which some claim can and did impair judgement).

    I know this is all kind of vague but I understand that some users here actually know the other party in this agreement and I need to make sure that specifics covered here are not passed on.

    Any help in this is greatly appreciated.

  • #2
    The courts would look at whether the agreement was grossly unfair or illegal (against Family Law Act). Let's say the question is support, the tables say $500 per month support, the separation agreement was $400, the courts would say "This is a reasonable agreement that a reasonable person would sign if they were not medicated; we do not see that the medication was a factor." The courts would be looking for a fairly extreme unfairness.

    The argument of the medication would be a better one for indicating why the party did not seek a change immediately. If it took 2 or 3 years, then the party was off medication, the head cleared and now sought a change, then it becomes relevent. Otherwise, if the party were living just fine for several years and suddenly decided the agreement was unfair, in most cases tough luck.

    The question of falsified financials also depends on degree. If income was not reported or under reported, in most cases then support would be adjusted and the party would pay arrears, but the entire agreement wouldn't be thrown out.

    What you are describing means starting from scratch, and it will depend on what was agreed to, how many areas of law are involved and the extent of the change.

    More likely the court may allow certain sections to be revisited.

    Unless there was significant fraud involved, equalization won't be reopened. In my own case, I pointed out to my lawyer when we were on the verge of signing our separation agreement that my ex had understated assets by $25,000; my lawyer told me that the courts would not consider that a significant amount if I tried to reopen the agreement later. That is the advice from my lawyer on my case; I cannot promise you that every case would have that answer but it should give you an idea of what I am talking about.

    Child support can be revisited periodicly anyway since incomes must be updated yearly.

    Spousal support would very likely be affected if the payer had understated income. However this doesn't mean the entire agreement would be void.

    Child custody can be reopened if there is reason at any time; it is never locked in permanently, but there needs to be a material change in circumstance. If one party was on medication and incapable at the time, and now is doing better, then this is reason to ask for a change in custody. However if the children are thriving in a stable environment, the change may not be granted. This is case by case, it can't be predicted.

    It does not seem to me that you have a case for voiding the entire agreement just from what you described, but I am not a lawyer. You should also consider the cost/benefit ratio. What would be the legal cost to throw out the agreement, start from scratch, and end up with a new agreement? And understand that the new agreement is not guarenteed to go 100% in your favour.

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    • #3
      Thank you very much. Basically the financial aspect is regarding close to $11k per year (multi year) of undisclosed income which has never been reported on taxes and a disclosed income of $66k. Seeing as this income figure was used for virtually all the remaining financial related sections of the agreement that would have certainly changed things at the time. For the most part I'm not looking to have the whole agreement thrown out but from what I have been reading it may be possible to have it reopened for adjustment.

      At this point in time the cost\benefit of reopening it and starting from scratch is something I am willing to take on and believe it would become less one-sided.

      As for the mental state an argument has been made (by one of the health practitioners involved) that it could be seen that the agreement was signed under duress as the mental instability existing at the time was used against one side to force an early signing.

      At this point I have contacted my lawyer and as soon as I can get an appointment I'll find out what the situation is. From what my records show there is still funds remaining in the retainer account so this shouldn't cost any more money to find out if there is merit to this.

      Thanks for your input in this. I appreciate it.

      Comment


      • #4
        Run the numbers to see what the effect of the $11K undislosed income has on (presumably) support.

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        • #5
          I think I would bring an application to vary the CS aspect of the agreement if they refuse to negotiate payable amounts reflective of their true income.

          When it comes to children and their best interest, including monetary, judicial discretion is reserved.

          Comment

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