Separation agreement-filed with court??

[Femme]

How do you know if a separation agreement has been filed with the court?
My friend's ex wife wrote their separation agreement a few years ago, they each signed it/had a witness. As far as he knows, it did not go through the court. He received no notification that it went through the court, there is no judge signature/stamp or anything from the court on the agreement (don't know if there should be?/if he would receive notification from the court regarding it???)

At the very bottom of their separation agreement it says www.divorcemate.com , so she literally just went on this website, and followed a random template it seems....She had a lawyer sign it as her witness, but it doesn't look like the lawyer had anything to do with writing it or advising her regarding it by the wording, agreement.

One example it says "Amanda will have custody" (would a lawyer not word that as "Amanda will have sole custody"?)

It also says that extraordinary expenses, medical expenses, etc. will be shared proportionately with each other's income, and that she needs to provide him with receipts/proof of much, and he is to pay his proportionate share within 20 days.

Well the mother has been calling him, saying the father owes money for their son's baseball, just gives him a number to pay, shows him no receipt or anything and tells him that he has to pay half of it.

By their agreement saying "proportionate" He should not owe her half right? and she needs to provide him with receipts/proof first before he has to give her any money.

She doesn't seem to understand their separation agreement that she, herself wrote!

[standing on the sidelines]

to me she has to show her proof before he gives her anything. As for how much he will have to pay that depends on their incomes. If he makes more then he will have to pay more then half.

[Mess]

In this case it doesn't seem to make any difference if it has been filed with the court or not.

Your friend signed the agreement and should follow it. With or without the agreement, it seems that the ex has had the children living with her and has been executing custodial authority. The friend is not in a position to challenge that. While the agreement may not have been worded perfectly or signed off properly by a lawyer representing each party, and perhaps each party didn't receive independent legal advice, once status quo sets in there is little to challenge unless there is a material change in circumstance.

Unless he is able to show that it is necessary for the children's best interests, he won't be able to challenge the children's residence with the mum, he won't be able to challenge the legal decision making, he will have to pay section 7 expenses (daycare, camp, medical over $100 per year and usually sports) proportionate to income and he will have to pay child support according to table amounts. From the story you tell there is nothing to justify reopening the agreement. Just because the agreement may not be registered with the courts doesn't make the situation invalid.

Regarding the baseball expenses and similar, he should NOT DEAL WITH THIS OVER THE PHONE. He needs to preferably deal with this through email as it provides an excellent record of back and forth conversation. If she doesn't want to respond to email then he needs to send a registered letter, keeping a copy in his file attached to the post office delivery receipt. The email or letter should state that he would be happy to pay his share of the children's expenses once copies of the receipts are received.

Don't get into an argument, don't try to score points, don't make threats, don't defend yourself, don't get engaged. Make a simple statement that payment of the share of expenses will be made once the receipts are received.

I'd advise not talking on the phone at all if the ex is getting antagonistic or unreasonable. It leads to getting hooked into an argument, things get said in the heat of the moment, conflict increases. When the phone rings, say "I'm sorry I can't talk right now, I was expecting another call". Or screen the calls if you have call display. Use email, keep statements simple and factual.

[Femme]

I know the actual agreement doesn't matter if it is filed through the courts or not. He does not wish to change the agreement at all (the actual agreement isn't that bad for him)

The reason why I asked how do you find out if it has been filed with the courts is because the ex wife contacted FRO, telling them that he owed her a lot more child support than he did.

On Fro's website, it says that they can only garnish wages if the support is court ordered or if the separation agreement was filed with the courts.
As far as the father knows, the agreement was never filed with the courts.

It's more a curiosity question. He's letting the ex wife get away with the amount she lied about to Fro that he owes. It is almost paid back now anyways.

We were just wondering what could happen if FRO did garnish his wages, IF the agreement was never filed with the courts?

[Femme]

Regarding the separation agreement. The agreement states that he must pay the ex wife $400 per month for child support.
It also states that extraordinary expenses will be proportionate to each of their incomes.
It says the only way the agreement can be changed is if they add a signed amendment, go to arbitration or court.

The ex wife is trying to tell him that he needs to pay her more child support per month now, that he needs to pay half for any extraordinary activities.

But the agreement doesn't state that...so it's funny that the ex wife wrote the agreement and doesn't understand what she, herself wrote.

[fieldgrey]

When filing an agreement with the court, the court requires a number of copies at filing. They give the filing party back several copies with a seal on it stating these are copies of the agreement on file. A copy of the agreement with the seal is what the FRO needs to begin any action in lieu of a court order. The other party should provide your friend a copy with the seal - from this you will know in which court it was filed. If not, ask the FRO for a copy of agreement with seal.

If there is no court order, or the agreement has not been filed, then the FRO can't take action.

Now, if it goes to FRO for enforcement, your friend should prepare a statement of accounts for monies owed and paid per agreement and resulting balance, with specific transaction amounts and date detail. Ask the FRO for their statement of his account. Compare them, and advise the FRO in writing of any errors. Keep record of that communication (fax or registered letter is best). If the FRO refuses to acknowledge the accuracy of his claim you will file a motion with the FRO as the Respondent. Your friend will put all evidence of payments, amounts owed, and related details into an affidavit with the motion. If your friend has received notice of intent to suspend driver's license, then he'll need to file a refraining motion with the above and in the affidavit explain why his license should not be suspended.

Serve and file the motion with the FRO (and on the ex as well to be safe) and get ready for a hearing on the matter. Before the hearing he will sit with the FRO counsel to review the matter, with potential for solution before getting in front of the judge. Most courts have 'FRO days' where they schedule all FRO hearings. It means your friend will be waiting at the court house all day waiting for his turn in front of the judge.

FRO does not have power to negotiate amounts, only enforce and negotiate payment plan. If your friend wishes to change the agreement and has no consent in writing from the ex, he must file a motion to vary the agreement with the court against the ex, not the FRO. If it comes to that, come back to the forum and we'll help with that application.

Any of the above motions must be filed in the court where the agreement has been filed.


FG

[Rioe]

It sounds like the ex is getting a bit aggressive for some reason. The main reason I could think of is that she's figured out that based on your friend's current income, the table amount for child support exceeds what he's been paying by a non-negligible amount. In all fairness to his children, perhaps he should look into it and possibly negotiate an amendment to increase it.

As for section 7 extraordinary expenses, the standard thing to do is to agree in advance to the expense (she can't just spring it on him), get the receipts, and to pay in proportion to income. No advance agreement, no receipt, no obligation to pay. If she's telling him to pay half though, does he know what her income is? If he makes more than her, he might want to just say "half? Okay!"

[Epona]

You're his friend. He may be telling you the tale in a way that makes her out to be the "crazy one".
"How do you know if a separation agreement has been filed with the court?" Well, one can go to the courthouse (Ontario Court) where the children live and inquire if an agreement has been filed. (Easier said than done). If the agreement has been signed, there will be a court file no. assigned to it. Your friend should have received something from the courthouse, but sometimes the court doesn't notify both parties. If it's been filed, your friend SHOULD have received something.
Lawyers use "DivorceMate". They pay to use the software. It is not for us to judge the level of involvement the lawyer had.
""Amanda will have custody" means she has sole custody. If they had shared/joint custody both parents would be named. There's more than one way to phrase something!
"By their agreement saying "proportionate" He should not owe her half right? and she needs to provide him with receipts/proof first before he has to give her any money." Proportionate depends on their respective incomes. If both parents are earning about the same, then proportionate would be 50%. You are hearing only your friend's side. Perhaps she did send him copies and he doesn't feel he should pay for that particular S.7 expense -- as in, it's something they disagree about and he is trying to make her seem unreasonable. Or maybe it is as he says (though I tend to lean towards, "You haven't heard her side"). Who knows for sure?

[Epona]

If the agreement was never filed with the courts, FRO would do nothing. FRO only acts on court orders and an agreement filed in court is treated as a court order.

[Femme]

Thanx for the info guys!
So she must have filed the agreement with the courts as soon as she contacted FRO and he was not notified by anyone regarding this.

She actually makes the higher income out of the two of them.

She also lied to FRO about the amount that he owed her.

Basically he was laid off from work for a year. He got behind on child support at that time, owing her $4800.00 (At that time she told him that she understood and for him to pay her when he got a new job---afterall she has not struggled in any way, as she does have a good paying job)

As soon as he got a new job, he gave her $2000.00 (Which means the $4800 he owed her, now became $2800.00)

A week after he gave her the $2000.00 He got a letter in the mail from FRO, stating that he owed her $7000.00

They started garnishing his wages back in October, taking approximately $1000 every month.

This should be all paid by the end of June. ***This is why she's all of a sudden getting agressive, telling him that he owes her more support per month/extraordinary activities, etc. Because she knows that she won't be getting this $1000 a month much longer.

Currently, he is paying her what he should be a month for child support based on the guidelines. There have been periods in the past where he was paying her more than he needed to based on the guidelines because he had lower paying jobs.

Currently, he has a decent paying job. She knows this, which is why she all of a sudden expects a higher amount right this instant. (I thought it goes by what you make the previous tax year? so technically he would not owe her the higher amount until next year) **but technically because she put that their separation agreement was not able to be changed unless they added a signed amendment, had arbitration or went to court, he doesn't have to pay more support until she takes action against him in one of those manners???.

He has told her that if she clears everything up with FRO, tells them the truth about what he owed her, that he will gladly pay higher child support per month. But she refuses to do this.

[Femme]

I also seen the separation agreement (there was no court seal or any court information on it)

I seen the $1700 cheque that he wrote her, I seen the bank machine transaction receipt of $1700 coming out of his account, He also gave her $300 in cash (to make the 2000 he gave her) obviously, he can't prove cash.

He's basically just let her get away with all this, doesn't want to go through the hassel with FRO--anytime he has called them to inquire on anything, they treat him like sh!t.

She has got away with a lot in their situation.

[Epona]

I'm surprised he didn't receive any information about the agreement being filed in court first. It has to be filed in court before going to FRO. FRO took about three months before opening a case when I filed with them. ...But then again, exes lawyer arranged to change a settlement hearing to a trial and I wasn't informed, so those sort of things can (and do) happen.
To make any changes to FRO payments, your friend needs a court order. Which takes time and a lot of patience. It also costs money (when retaining/hiring a lawyer). Course, he could self-represent, but if she has a lawyer, they'll trip him up in technicalities etc. as much as possible.
Good Luck!

[Femme]

Yeah, she hasn't had a lawyer up to this point. After she started calling him asking for more money. He recently wrote her a letter, going over every detail of their separation agreement, explaining to her what each thing meant. She should be realizing now that the separation agreement that she gave him to sign, is not actually in her best interest/doesn't fully benefit her.

The separation agreement was signed by a lawyer as her witness. (That lawyer has since died). And the separation agreement was not signed with all 4 present, basically she gave him the agreement to sign after she and the lawyer had already signed as her witness. Then he signed it and had a friend sign as his witness. There was never any contact between this lawyer with the father, and there was never any court.

So I am thinking that she literally just went to a law firm/got a free consultation with the lawyer. Went home, made up her own separation agreement using divorcemate.com and then paid to simply have the lawyer notarize it.

[HammerDad]

It is quite easy to file agreements with the court. I did it, all I needed was a notarial copy to submit. I think if cost me like $20 to do (could've been free, I know I needed a bit of money and that could've been for photocopying).

I did it and there was no notification required to my ex. I did email her and let her know the agreements were now filed with the court what our court file number was. She was surprised and thought that there was some notice required or document she needed to be served with.

He should be updating his C/S to his current income because, if he ends up in court, he will get hit with arrears. I understand that his agreement provides for $400 a month, but the guidelines will prevail over the agreement. Should he fight it, he would probably also get hit with costs.

As for her claiming amounts, she will have to prove it. He can submit his cheques (hopefully they all state C/S in the notes area) to prove he has paid the amounts owed.

Regarding s7 expenses, I would simply state to her that I will gladly pay my proportional share once I have received a copy of the invoice/receipt reflecting such amount. Until she provides me with a copy of the invoice/receipt, I cannot verify the amount owed, or even the expense, and thus cannot remit any payment. It is simply a matter of verifying the amount and to ensure that I am able to use the receipt to claim my proportional amount come tax time.

[HammerDad]

The separation agreement was signed by a lawyer as her witness. (That lawyer has since died). And the separation agreement was not signed with all 4 present, basically she gave him the agreement to sign after she and the lawyer had already signed as her witness. Then he signed it and had a friend sign as his witness. There was never any contact between this lawyer with the father, and there was never any court.

So I am thinking that she literally just went to a law firm/got a free consultation with the lawyer. Went home, made up her own separation agreement using divorcemate.com and then paid to simply have the lawyer notarize it.

Sounds almost exactly what I did, except I used precedents from my firm to prepare it........and I didn't have to pay for it to be notarized or witnessed.