Separation Agreements – 10 Things to know

A Separation Agreement between you and your spouse or common-law partner can save you a significant amount of time and money. A Separation Agreement can be used to settle support, property, and parenting disputes without needing to involve the court system, which can quickly become a costly process.

1) What is A Separation Agreement?

A Separation Agreement is a written agreement between two people who are separating or are separated. A Separation Agreement typically deals with matters regarding:

  1. The ownership and division of property, especially the matrimonial home.
  2. Support obligations (child support and spousal support).
  3. Parenting rights regarding decisions about the children’s lives.
  4. Custody and access rights to the children.
  5. Any other matter in the settlement of their affairs.

2) Full Financial Disclosure

Before signing a Separation Agreement each side should be provided with the other’s full financial disclosure. Full financial disclosure protects each person by ensuring they have access to all the financial information needed to make an informed decision. Without full financial disclosure the Court may not enforce a Separation Agreement.

Full financial disclosure includes formally providing the other person with supporting documents for:

  1. Bank account statements
  2. RRSP amounts
  3. Information on a private owned business.
  4. Debts and liabilities.
  5. Formal pension valuation.
  6. Property owned and value.
  7. Any other relevant financial information.

Each side should have a lawyer review the financial disclosure. Full financial disclosure is essential to ensure that a separation agreement will be enforced.

3) Spousal Support

In Ontario, when spouses separate the spouse with more income or assets may need to pay spousal support to the other spouse.

A Separation Agreement should detail how much spousal support will be paid from one person to the other and for how long. Things that need to be taken into consideration are how much support the other person requires to have their needs met and how much the other spouse can afford to pay.

If spousal support is being waived or is a relatively small amount, then it is highly recommended to have the Separation Agreement prepared by a lawyer to ensure that this waiver remains enforceable. The Courts sometimes view ‘one-sided’ Separation Agreements that waive spousal support with suspicion.

4) Child Support

Within a Separation Agreement it is recommended that child support payments be decided in accordance with the Child Support Guidelines’ table amount. Parents will also need to decide how to pay for any of the children’s extraordinary expenses. Examples of extraordinary expenses would be: team sports, daycare, and post-secondary education. A general rule of thumb is that extraordinary expenses will be paid in proportion to each spouse’s income.

If child support payments are being varied from the guideline amount in your Separation Agreement you should review the agreement with a lawyer to ensure the agreement is enforceable.

5) Parenting Arrangements

A Separation Agreement should include a written outline of how spouses will co-parent the children moving forward. The parenting arrangements should cover topics such as:

  1. How will decisions impacting the children be made?
  2. How will information about the children be communicated to each parent?
  3. Where will the children live?
  4. How often, when, and where will the children visit with the other parent?
  5. Who else will the children be able to visit?
  6. How will holidays be celebrated?
  7. Any other parenting issues that need to be outlined.

6) Matrimonial Home

The Separation Agreement should outline whether the house will be sold or who will take ownership of it or continue to live in it. You should have a formal Separation Agreement before attempting to change any aspect of the ownership of the home.

7) Dispute Resolution Clause

A properly drafted Separation Agreement will include a dispute resolution clause. This clause will outline how future disagreements will be addressed. A dispute resolution clause may be that the parties must attend mediation or arbitration. The value of the dispute resolution clause is that it can help save each side time and money. Without the dispute clause the spouses may resort to costly litigation to solve each dispute.

8) Independent Legal Advice

It is in both side’s best interests to receive independent legal advice (ILA). Ensuring your spouse gets ILA helps prevent them from being able to claim that they did not understand the nature or consequences of the Separation Agreement, which can cause the agreement to be unenforceable.

Spouses should each have their own lawyer. A lawyer cannot give legal advice to both spouses. Not receiving ILA can be a costly mistake that leads to the Separation Agreement being set aside and a resulting expensive court process.

9) Property Division

The Separation Agreement should outline how the net family property will be divided, whether there will be an equalization payment and, whom it will be paid to. The agreement should be clear in specifying if certain benefits are given in exchange for others. For example if one spouse is waiving spousal support in exchange for the other taking over all of the family debts, that should be clearly written.

10) Delaney’s Law Firm Offers Free 30-Minute Consults!

Call us at 613-233-7000 to book your free consultation. Receiving legal advice can help ensure your Separation Agreement will be enforced and save you money in the long run.

 

Re: Sanfilippo buys Judiciary appointment for $1,800

Today’s rant, for lack of a better word, is based upon this article that I perused earlier this morning:

https://www.thestar.com/news/canada/2017/08/01/this-lawyer-gave-the-liberals-more-than-1800-then-he-became-a-judge.html

This article is ridiculous.  It’s a smear.  I’m sorry but I just don’t believe it.  It is, in all likelihood, FAKE NEWS.

Now I have no doubt that Andrew Sanfilippo gave $1,878.87 to the Liberal Party.  And I have no doubt that Minister Jody Wilson-Raybould has appointed Sanfilippo to the bench.  Those are the facts.  My issue is with the innuendo that the Star inserts into their article to suggest to the reader that the donation and the appointment are tied to one another.

This suggestion, completely unfounded, diminishes the reputation of our provincial judiciary.  This is not a good thing.  People that appear before judges are typically at an important juncture in their lives.  Their family unit has broken down.  Their children have been removed from their care.  They are losing their liberty.  They have been disabled and need disputed insurance coverage to support themselves.  It’s important that when these people appear in front of our judges that they have confidence in knowing that there is an intelligent, hard working, and reputable person that is going to make the decision that will have such a great impact on their lives.  What the Toronto Star has done here is created anxiety in those who will appear before Justice Sanfilippo.  The Star, by their very allegation, has eroded the public confidence in the judiciary.  If they don’t like a decision – then it becomes all too easy to believe that the judge bought his position.  Why respect a decision-maker of someone who bought their position for $1800?  It breaks down the rule of law and erodes the public confidence in the administration of law.

I can tell you that I have litigated against O’Donnell Robertson and Sanfilippo.  They are tough.  I would describe them as a hardened Toronto insurance defence firm.   When you do insurance defence you have insurance companies as your client.  You get a steady stream of files in exchange for working at a reduced hourly rate.  In order to make up for the reduced rate the lawyers are typically required to work longer hours in order to generate a solid revenue stream.  I would expect that Mr. Sanfillippo billed about 1800 hours a year.  That 150 per month.  To bill 150 hours per month you have to work 50-60 hours per week.  Mr. Sanfilippo took time away from his family, from his friends and his hobbies and invested it in his career.  For 32 years.  That’s probably about how old the reporter was on this story. Just so we’re clear here, Mr. Sanfilippo was working his ass off in an articling position while this reporter was still in diapers.  And that is why he got appointed to the bench.  It had nothing to do with a paltry $1800.

The star also failed to mention Mr. Sanfilippo’s three post-graduate degrees, the work that he did as a trustee for Fanconi Canada (to find a cure for Falcon anemia) or the fact that his peers rated him as one of the top 40 insurance lawyers in Canada.  There is no story in “Hard working and well educated lawyer gets appointed to the bench.” They took the $1800 donation and judicial appointment and tried to sell some newspapers.  It’s a farce and a joke and I’m calling them out.  Show me a smoking gun.  Show me an email, or a witness statement, really any shred of evidence that links the $1800 to his appointment.  Sanfilippo has built his reputation on honesty, integrity, hard work and toughness.  I will not stand by and let the Star disparage that reputation for a few measly clicks.

I have no relationship with this firm, have received nothing for writing this blog, and will never appear in front of Justice Sanfilippo.  My only goal here is to raise awareness, protect both the administration of justice and the reputation of a fellow barrister who has done absolutely nothing wrong here.

Congratulations on your well-deserved appointment Justice Sanfilippo, thank-you for your years of service to your community and like Mother Theresa always says – “Don’t let the bastards get to you.”