Best Calgary Separation Agreement Tips can help you settle your Calgary and Alberta family law case and move forward after having a say in how your post-separation finances and child parenting time issues are resolved.
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The unfortunate reality in family relationships is that they sometimes come to an end; current Statistics Canada data indicates that 38% of Canadian marriages end in divorce. This statistic underscores the importance of having a clear and enforceable agreement regarding how family issues will be resolved upon the breakdown of that relationship, particularly if children or significant property is involved. In a previous article, we discussed how important it is to sign a properly prepared agreement at the beginning of a formal living arrangement (Cohabitation Agreement) or marriage (Prenuptial Agreement) to set out a fair and reasonable conclusion of matters should that relationship or marriage end. It is equally (or perhaps even more) important to have a similar sort of agreement prepared and signed at the end of that relationship, whether common-law or married. Best Calgary Separation Agreement Tips prepared by Peter Graburn senior family lawyer at our Calgary office are intended to give you a head start on understanding how to fairly settle your family issues arising from relationship breakdown. Meet with us at our Calgary office if you have specific questions about a separation agreement well before you start negotiations.
Best Calgary Separation Agreement Tips -What is a Separation Agreement?
A Calgary Separation Agreement is a formal written contract intended to document the final and legally enforceable agreement between separating couples regarding how they will deal with their mutual affairs on an on-going basis. But what are those on-going issues? The typical Separation Agreement includes agreement on the following issues:
- Separation – Separation Agreements used to have long and detailed provisions setting out what separating couples could (and particularly could not) do or say between themselves and often their friends and relatives after separation. Modern Separation Agreements usually have a very short provision in this regard, ie: “The parties shall live separate and apart and not interfere in the life of the other party in any way” – short and to the point. They usually also confirm that the Separation Agreement survives reconciliation and/or divorce;
- Children – making sure children are properly dealt with upon separation and divorce is a priority. The most important issues regarding children to be included in a Separation Agreement include:
- Legal Decision-making – including decisions regarding education, healthcare, religion, etc.;
- Parenting – including primary residence, access, holidays, etc.;
- Child Support – including basic support (ie. food, clothing, shelter) and extraordinary support (child care, school expenses, extracurricular activities, and post-secondary education, etc.);
- Financial Support – One of the most important provisions in a Separation Agreement deals with whether there will be ongoing financial (partner or spousal) support between the parties, or a complete waiver of such support [in which case the Separation Agreement should include a reference that there has been no duress, undue influence or oppression by the other party in coming to that agreement ( a Miglin provision)];
- Property – finally, a Separation Agreement should contain detailed provisions regarding how accumulated property (real estate, investments, pensions, etc.) and debts (mortgages, LOCs, credits cards, etc.) will be divided between the parties.
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Pretty simple, right? Not really. Here are some best Calgary separation agreement tips. There are other provisions which should / must be included in a Separation Agreement to make it legally binding and enforceable, including:
- Financial Disclosure – full disclosure of financial information between the parties is a critical step in separation and divorce. The Separation Agreement should clearly state that this financial disclosure was completed so that the Agreement cannot be set aside on these grounds (see Rick v. Brandesema, Brown v. Silvera, etc.);
- Dispute Resolution – the Separation Agreement may also set out the options (ie. negotiation, mediation, arbitration, etc.) the parties will use to resolve any future disputes rather than going to Court;
- Formal Requirements – there are also both statutory (ie. Matrimonial Property Act Acknowledgement) and procedural (Affidavit of Witness) requirements necessary for a Separation Agreement to be properly signed and enforceable;
- Independent Legal Advice – finally, both parties must meet separately with a Lawyer to make sure the parties understand both their rights and responsibilities under various laws as well as the nature and consequences of the Agreement. The Certificate of Independent Legal Advice of the Lawyer confirming this makes the Separation Agreement a legally enforceable contract between the parties (see Brosseau, Corbeil, Webb vs. Birkett, etc.);
Best Calgary Separation Agreement Tips – Making Full Disclosure and Involving a Calgary Family Lawyer Is Key
Why use a lawyer to prepare and sign a Separation Agreement? Separation Agreements clarify your rights and obligations with your ex-spouse at the end of your family relationship (whether common-law or married) and hopefully avoid future court proceedings regarding disputes between the parties – they are usually more certain and cheaper than court. As discussed above, there are some standard issues and provisions that should / must be included in a Separation Agreement to make it legally binding and enforceable. But every family relationship is different and involves different facts and legal issues – this is also the situation with every Calgary Separation Agreement. That is what makes the use of pre-printed forms and non-lawyers to prepare Separation Agreements risky and often costly, see the Ontario Court of Appeal case of Emmerson v. Emmerson (2017 ONCA 917) regarding the devastating results of using an online template Separation Agreement. Some details and issues to consider are set out in this checklist.
Calgary Separation Agreement Lawyers help their Clients prepare and sign a Separation Agreement that is formally correct and legally enforceable to bring finality, certainty, and closure at the end of a family relationship. These Best Calgary Separation Agreement Tips are general in nature and there is no replacement for solid and custom legal advice from our senior Calgary separation agreement lawyers.