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Separation Agreement without ILA

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  • Separation Agreement without ILA

    My ex and I wrote, signed and had witnessed a Separation Agreement. Agreement has standard waiver of ILA we found on the internet. We are already divorced but not sure that makes a difference. He is now taking me to court claiming he was depressed when he signed the agreement and I didn't disclose all my assets. All of our assets were joint except for our RSPs and my pension. We have already equalized our RSPs. He was aware of my pension and its value and the agreement states that he waives all claims to it. Case conference judge ruled he had to bring to court his doctor to validate his "depression" claim. Questions - does he actually have to bring the physician that was treating him during the time he signed the agreement to court? What if he doesn't? What are his chances of getting the Agreement thrown out?

  • #2
    Originally posted by CrazyDaisy View Post
    Case conference judge ruled he had to bring to court his doctor to validate his "depression" claim. Questions - does he actually have to bring the physician that was treating him during the time he signed the agreement to court? What if he doesn't? What are his chances of getting the Agreement thrown out?
    Slim to none. The clinician will more than likely need to be ordered to testify as they often do not want to be put on the stand. The doctor simply can't write a "letter" as it is not sworn testimony. The medical records of the patient do qualify as a legal document so, the other party can present them into the evidence record but, you can then call the doctor as a witness at trial for examination against the evidence provided.

    The doctor is like any other witness, they have to swear to the truth of their testimony and evidence provided to the court. If the doctor provides a sworn affidavit then you request an order for discovery and cross examination on the affidavit evidence from the clinician. If they provide a "letter" and/or other document that isn't a sworn affirmation to the truth simply note this to the judge and ask that the hearsay evidence not affirmed be removed from the trial record and be discarded or an order for the doctor to be cross examined on the evidence at trial.

    Also, a doctor is governed by a clinical body and they have a very detailed set of governance rules on their conduct. Medical records are time stamped and it is easy to tell if records are back dated... If the doctor doesn't have a record of the diagnosis of depression in the following ontological structure then the argument that the other party was not of proper mind is a moot and near impossible argument.

    DSM-IV-TR ontology for the two conditions of Major Depression single episode that would significantly impact ration and logic function:

    296.23 Severe Without Psychotic Features
    296.24 Severe With Psychotic Features

    There will have to be a supporting medical diagnosis specifically stating a diagnosis of 292.23 and/or 296.24 explicitly stated in an encounter note in the time frame of the signing of the document and subsequent treatment then the other party may be actually malingering before the court.

    Malingering is a medical term that refers to fabricating or exaggerating the symptoms of mental or physical disorders for a variety of "secondary gain" motives, which may include financial compensation (often tied to fraud); avoiding school, work or military service; obtaining drugs; getting lighter criminal sentences; or simply to attract attention or sympathy.
    http://www.brown.edu/Courses/BI_278/...alingering.pdf

    DSM-IV-TR: #V65.2

    Malingerers intentionally and purposefully feign illness to achieve some recognizable goal. They may wish to get drugs, win a lawsuit, or avoid work or military service. At times the deceit of the malingerer may be readily apparent to the physician; however, medically sophisticated malingerers have been known to deceive even the best of diagnosticians.
    February 2012 — Malingering (V65.2)

    Also, if there is a diagnosis of depression in accordance with DSM-IV-TR then the clinician's assessment and plan of care will come into question. If the doctor provides a "diagnosis" but, did not document an assessment and plan then one can easily pull apart the "diagnosis". Clinicians in good practice when diagnosing something will put forward and assessment and detailed plan of health care.

    Finally, family practitioners are NOT fully qualified to work in the area of mental health. This is a very grey area and any family practitioner suspecting a mental health condition of 296.23 and/or 296.24 should be making a referral to a psychologist and/or psychiatrist immediately as part of their plan of care.

    Highly doubtful that the doctor will testify in the matter. They are not going to put their career at risk for a possible malingerer.

    Good Luck!
    Tayken

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