Transcript
Page 1: Separation Agreement

SEPARATION AGREEMENT

David R. Greig, BA, LLB

Self-Counsel Press(a division of)

International Self-Counsel Press Ltd.Canada USA

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INTRODUCTIONSeparation can be a time of great upset. Memo-ries of broken promises and hurt feelings createconfusion. Separating couples, who have man-aged to work together for decades, often cannotagree on anything. Arguments about children,money, and property can quickly escalate intocostly court battles which further aggravate theacrimony and upset.

Ironically, the decisions that need to be madeat the time of separation require calm considera-tion and objective assessment. These decisionswill create significant and lasting financial conse-quences for the parties and their children.

Getting past the emotional turmoil of sepa-ration is not what this booklet is about. There areother books, counselors, and psychologists forthat. The focus here, instead, is on assisting cou-ples who choose to move on, in a productive way,with their lives after separation. It’s about how toreduce your reasoned resolve to a written con-tract that will be reliable.

When you and your spouse separate, youhave an opportunity to settle all the outstandingissues by agreement and to document that agree-ment in writing. A separation agreement is simplya contract that records the specific details of thatagreement so that the terms are known to youand others now, and in the future.

An agreement that sensibly resolves all rele-vant issues can restore calm. It may also —

(a) offer significant tax advantages;

(b) simplify divorce proceedings;

(c) add certainty to financial planning; and

(d) assist in estate planning.

Do the courts recognize separationagreements?Canadian courts and legislatures have tried to en-courage parties to settle their disputes through ne-gotiated contracts. Separation agreements are onetype of contract. Judges have shown a willingnessto promote the validity of such contracts by a

judicial reluctance to interfere. If your agreementis fair, properly executed, and sensible, it willprobably stand the test of time and withstand ju-dicial review. There are, however, several excep-tions to this general rule:

(a) If you and your spouse agree on issuesrelating to children (i.e., support andcustody) that are not in the best inter-ests of the child, the court can makechanges.

(b) If there is a lack of disclosure or delib-erate deception respecting assets, liabil-ities, income, or expenses, the propertydivision and support agreement may bereviewed.

(c) If the agreement is plainly unfair (i.e.,one spouse releases all claims to sup-port without compensation) the courtcan upset it.

Who is a spouse under current law?This book is intended to apply to married couples who are separated or are considering sep-aration. While many of the principles describedherein apply equally to “common law” (unmar-ried) couples, that is not true everywhere inCanada. Across the nation, the rules that apply tocommon-law couples are changing, so for thosepersons, up-to-date legal advice is essential.

Recent amendments to Canadian law nowpermit the formalization of marriage betweensame-sex partners. In the event of a breakdown ofsuch relations (where the parties are marriedunder the new law and have recently separated),the use of the terms “husband” and “wife” maybe inappropriate. Those terms can be supplantedby the given names of each spouse, or by simplereference to “Spouse 1” and “Spouse 2.” A moredifficult issue arises as to the retroactive applica-tion of the law respecting support and propertydivision. If your same-sex marriage has come to anend, consultation with counsel may be advisable.

A separation agreement form specific tosame-sex partners is included on the CD-ROM thataccompanies this book.

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(f) The agreement must “make sense” andbe understandable to someone otherthan you and your spouse. Even if theparties think that they understand theagreement perfectly, what they intendmay not be obvious years later if a dis-pute subsequently arises. Because ajudge may be called upon to interpretthe agreement, the terms and condi-tions must be clear and capable of onlyone meaning. Sometimes, having a friendreview the agreement before it’s executedto ensure that it’s understandable canbe helpful. If you still have concerns,have the document reviewed by a lawyer.

If you do not understand a particular clauseof the agreement or are confused about an issue,investigate further. Do not agree to anything youdo not understand. If you remain uncertain orconfused, talk to a lawyer.

While you can add terms to your separationagreement at any point in the agreement, thewording should be clear, legible, and sensible. Inorder for the amendments to be valid, they mustbe initialed by both parties. For example, shouldyou wish to add an item to the MatrimonialHome clause, you should type or handwrite theadditional wording and then initial the amend-ment in the margin as shown below:

JSSS

Signing and witnessing the agreementOnce you have completed the main body of theagreement, check it for accuracy but do not signor date the agreement. Before you sign, make asmany copies of the agreement as you will need.Good quality photocopies are sufficient for thispurpose, or you can print out the copies you havecompleted on your word processor. You will needat least two copies of the agreement, one for yourspouse and one for you. If you sign the agreementbefore you make the copies, the signatures willnot be original signatures and may not be valid.

For the signing of the agreement, you willeach need a witness who is an adult (i.e., over 18)and is competent (i.e., understands what is beingdone). In front of your witness, date the agreement,

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PREPARING YOUR SEPARATION AGREEMENT

What is in a separation agreement?Most separation agreements consist of the sameessential points: They start with the date and thefull names of the parties to the agreement.Recitals, which describe the background or partic-ulars of the agreement, follow. Next, the terms ofthe arrangement (the covenants) form the mainbody of the agreement. Finally, the documentends with the execution (signing of the agreementby both parties), properly witnessed.

Examine the sample at the end of this guideand identify each of these components. Schedule Adescribes the assets and liabilities of the partiesand should be added to the back of the agreement.

Completing the agreementThis kit contains a blank perforated copy of thebasic separation agreement. There is also a CD-ROM that contains the blank forms in electronicformat for you to use on a PC. Once you have fa-miliarized yourself with the agreement, use onecopy of the form to prepare a draft or rough copyby filling in all the variables that apply to yourparticular circumstance.

When you are satisfied with the agreementand your spouse has agreed to the terms, use asecond copy of the agreement to prepare yourfinal draft, keeping the following in mind:

(a) Add any terms that you want included inthe agreement, but ensure that such ad-ditions make good sense and clearly de-scribe what is intended.

(b) Names, addresses, and dates must be infull and must be accurate.

(c) Delete any clauses that do not apply bydrawing a line through the words or sen-tences that you intend to omit. Aftercopies of the document are made, bothyou and your spouse should initial thesedeletions.

(d) When two alternative words are pre-sented (such as he/she) be sure to crossout the one that does not apply.

(e) All disclosure particulars must be fullyand fairly described. Failure to disclosean asset (such as savings in your namealone) may invalidate the agreement.

Both parties will continueto jointly own and use (totheir mutual benefit) thePuerto Vallarta time share.

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initial all deletions, and sign it. Have your witnesssign where indicated. Your spouse then repeatsthe procedure with his or her witness.

If you and your spouse are using lawyers, youshould each take the separation agreement toyour respective lawyers and have them look at theagreement before signing. Then, each lawyer canact as a witness and keep a copy of the agreementin your file.

After your separation agreement is signed andwitnessed, both parties should keep an original.

FIVE KEY ISSUES TO ADDRESS INYOUR SEPARATION AGREEMENTWhen parties separate, they generally need to ad-dress five key issues. These are custody, access,guardianship, support, and property division.

CustodyCustody describes the arrangement for residencyof minor children. In many separated families,one spouse has custody of the children and theother spouse has access rights (or visitation). An-other common solution is that the parties sharejoint custody, with one spouse having primaryresidency (meaning that the children are primarilyresident with that parent). Joint custody is a termtypically used to describe situations where theparties play a nearly equal and shared role in car-ing for the children. In other families, the partiesshare true joint custody and the children alter-nate their residences between the mother and fa-ther. Sometimes, that means that the livingarrangement is “week on/week off,” while otherparents settle on terms where the child spendsweekdays with one parent and all weekends, hol-idays, and summer vacation with the other. Thereare many options and combinations.

When settling custody issues, remember thatwhat matters is not what is convenient for theparents: the best interests of the child are para-mount. If the parents decide on a custodialscheme that is not consistent with the child’s bestinterests, the court may intervene and substitutea more appropriate regime.

Take into account the following other impor-tant considerations:

(a) Regardless of what you and your spousesettle on, the court can review a custo-dial arrangement that is inconsistent

with the best interests of the child. Aswell, the court can review the provisionsof an agreement as circumstances change.

(b) The wishes of your child are a relevantconsideration, but rarely determine acustody settlement. All the circum-stances must be considered, includingthe age and maturity of the child.

(c) A parent who has residency of a childmore than 40 percent of the time maynot be required to pay base child sup-port, even though that parent must stillcontinue to contribute to special ex-penses (see the section on supportbelow). The law on this point can beconfusing. If you and your spouse havesettled on a joint custody regime or ac-cess program that divides residency on anearly equal basis, you may need pro-fessional advice.

(d) Don’t confuse custody with access orguardianship (see the sections on accessand guardianship below). Custody is aterm used to describe the day-to-dayresidency of a child, and an agreementbetween parents that one of them willhave custody does not preclude theother parent from a full and involvedrole in upbringing.

(e) If mobility is a concern (the ability ofthe custodial parent to move to a differ-ent town), get legal advice. Do not as-sume that simply because you havecustody, you are free to move the chil-dren to wherever you want.

(f) While the arrangements that you havesettled upon regarding property divisioncannot later be changed, the terms regarding custody and access can be re-viewed from time to time. For instance,during the “turbulent” adolescent andteen years, it’s not uncommon for chil-dren to “decide” that they want tochange residences. In such circum-stances, if it’s determined that such achange is in the best interests of thechild, an amendment to the agreementcan be made, and the child can move.Typically, such modifications also in-volve an adjustment to the child supportarrangements.

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Some separated parents choose toutilize improvisational and neutral lan-guage in the description of their custo-dial arrangements. Phrases such as“shared parenting” are sometimes in-corporated to set out the agreed-uponterms. This kind of creativity may makegood practical sense to parties, but devi-ating from the conventional language“custody and access” may be trouble-some if issues arise concerning childsupport and mobility. If you and yourspouse want to use special language todescribe your parenting arrangement,it’s best to obtain legal advice.

“Split custody” is a term used to de-cribe the arrangement where each par-ent has custody of (at least) one child.That situation triggers specific supportobligations which are defined in para-graph 8 of the Federal Child SupportGuidelines. Parents who are sharingcustody of several children should takeadvice on the operaton of these provi-sions, to insure compliance with the law.

AccessAccess terms set out the arrangement you andyour spouse have settled on for visitation. Somecouples agree on a general description; for exam-ple, “the Husband shall have reasonable and gen-erous access.” If you and your spouse have anamicable relationship and are able to communicateand cooperate, that’s fine. If, however, bickeringand misunderstanding punctuates your post-separation spousal relationship, you should writeout the specifics in your agreement. Describe thearrangement for weekends, holidays, birthdays,and religious holidays. Set out the specifics of thesummer holidays, and who will perform the pick-up and drop-off. Be fair, be sensible and, mostimportant, be clear. Many couples spend thou-sands of dollars on legal fees each year arguingover these topics.

GuardianshipIn most jurisdictions, the arrangement onguardianship resolves two legal questions:

(a) Who will have custody of the child ifone parent dies?

(b) Who will be involved in the decision-making process on topics affecting thehealth, welfare, and education of thechild?

For most couples, an agreement that pro-vides for joint guardianship is sensible.

SupportYour separation agreement should consider bothspousal and child support.

Spousal supportCommonly called alimony in the United States,spousal support is compensation paid by onespouse to the other to relieve economic inequal-ity that may exist at the end of a relationship.Support can be lump sum or periodic (i.e., paidmonthly or at some other regular interval) andmay be tax deductible if properly structured. Pe-riodic spousal support is typically tax deductibleby the payor paying, and counts as payable in-come in the hands of the recipient. In some cases,spousal support continues indefinitely, whileother spouses agree to support for a limited timeor agree to review the arrangement some time inthe future. Depending on your circumstances, theobligation to pay or the right to receive supportcan be significant, and so some advice on thetopic may be necessary.

If a husband pays $200 per month to hisspouse for her support, $2,400 per annum is de-ducted from the husband’s taxable income, andan equal amount is added to the wife’s income.Some qualifications to this general rule exist:

(a) The parties must be separated.

(b) The payments must be periodic (notlump sum).

(c) The payments must be pursuant to acourt order or written agreement. Aseparation agreement qualifies.

(d) If the payments are made to a thirdparty and not the spouse directly (e.g., amortgage company), certain restrictionsapply.

Under the current federal Divorce Act, anidentified object of spousal support is the promo-tion of economic self-sufficiency. Until recently,that factor was given considerable weight by the

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courts, and often resulted in the making of time-limited spousal support orders that terminated atsome future time.

The law respecting spousal support continuesto change. Recently, the Federal Department ofJustice commissioned and then published a re-port concerning spousal support. This report, en-titled “Spousal Support Advisory Guidelines: ADraft Proposal” attempts to add certainty to thequantum of spousal support properly payableupon separation, and to offer a formula for thatdetermination.

The report is 125 pages long, and complex. Itis, however, extremely helpful, and contains muchuseful information about the suggested formula,and also the case law and principles upon which itis based. Courts across the country have used andapplied the formula contained within the report.Accordingly, persons who have the opportunity toread it should do so. The report can be found on-line at www.justice.gc.ca (click on “A–Z Index”).

When considering the report, it’s importantto remember the following:

(a) Unlike the Child Support Guidelines(which are law), these spousal guide-lines are not binding.

(b) The spousal guidelines do not necessar-ily apply to “common law” (unmarried)spouses, and offer no formula for deter-mining entitlement.

(c) There are two formulas described: onefor separating spouses without children,and one for families with children. Theformer is relatively easy to apply, thelatter more complex.

(d) These guidelines offer a “range” forsupport within which various factorsand considerations can be taken into ac-count.

(e) The basic principle for calculating“without children” support is found onpage vi and several examples are of-fered (for instance, see example 5.1 onpage 36). In that case, at the end of a 20-year marriage, the husband earns$90,000, and the wife earns $30,000.The gross income difference is $60,000.Next, the “applicable percentage” is de-termined by multiplying the length of

marriage (20 years) by 1.5, and then by2.0. Performing that calculation pro-duces a percent “range” of 30 percent to40 percent. Then, multiplying $60,000by 30 and 40 percent produces a theo-retical “entitlement” to support of$18,000 to $24,000. The suggested rangethen is $1,500 to $2,000 per month, foran indefinite duration, and subject tovariation and/or future review.

(f) Calculations for “with children” supportare based upon a more complex formuladescribed on page vii, and exemplifiedin Chapter 6 (on pages 65 to 85). Theseguidelines suggest a method for provid-ing the “lower income recipient spouse”with between 40 and 46 percent of theparties’ combined net disposable in-come. If you have children, and spousalsupport is a consideration, reference tothis section is critical. Access to properaccounting records, and an understand-ing of available government benefits(e.g., the Canada Child Tax Benefit,family benefits and bonuses, daycaresubsidies, and other programs) will bekey. Expert accounting advice may benecessary. Most family lawyers possesssoftware programs to assist in the calcu-lation, and some government agenciesmay be similarly able to assist.

Remember that this report is not binding,and not firm law. Debate continues to rage aboutwhether the report itself, or the principles behindit, will ever become law. While that debate carrieson, what we do know is the old rule that spousalsupport was never to become a “pension for life”is now gone. At the end of a long-term traditionalmarriage, spousal support may continue indefi-nitely. This is particularly so when it can bedemonstrated that one spouse has suffered a con-tinuing economic disadvantage because of a ca-reer compromise made in order to take on familyobligations, such as raising children.

Time-limited support may be appropriate inmarriages of shorter duration or where both par-ties are employed. In many cases where both parties work, some inequality in income earningcapacity might not attract any order for support:the entire obligation is something that must bedetermined based on fairness and principles of law.

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Child supportSupport paid by a spouse for the benefit of chil-dren is not deductible by the person making thepayments, nor is the payment taxable income in thehands of the recipient. Legislative changes nowprovide tables (Child Support Guidelines tables)that set out the mandatory quantum of support.For your convenience, these tables are repro-duced at the back of this kit. (There are separatetables for those with more than four children;links to these tables are provided on the enclosedCD-ROM.) The Department of Justice has releaseda step-by-step booklet explaining the FederalChild Support Guidelines. The CD-ROM providesa link whereby you can download this 79-pagebooklet. Or you can visit the Justice Canada web-site at www.justice.gc.ca.

The child support legislation was designed tosimplify and make uniform all child support pay-ments. In many cases, it has achieved that objec-tive. If, however, you and your spouse have ashared or split custody regime, the tables are noteasy to understand and the law can be confusing.

In most circumstances, child support consistsof two amounts: the base and the allowance forspecials. To calculate the base, turn to the ChildSupport Guidelines at the end of this kit, andrefer to the table for the province in which the payorresides. Ascertain the payor’s income by lookingat line 150 of his or her last tax return, determinethe number of children who qualify for support,and then find the corresponding amount of childsupport. That is the base amount that must bepaid. Remember: the guideline amount is a floor,not a ceiling. A spouse can always pay more, butexcept in extremely unusual circumstances (suchas in cases of undue hardship), rarely less.

To calculate the specials, ascertain the costsof daycare, ongoing medical and dental expensesfor the child, and extracurricular expenses. Thesecosts are then shared between the parents in pro-portion to their incomes. For instance, if the cus-todial mother earns $20,000 per annum, and thefather earns $30,000, the father must add to hisbase support amount three-fifths (or 60 percent)of the cost of these special expenses.

In the above example, assume that there aretwo children, and the parties live in British Co-lumbia. According to the guidelines, the basepayable by the father (based on his income of

$30,000) is $472 per month. If the specials are $50per month, the amount the father pays to themother is $472 plus three-fifths (or 60 percent) of$50, for a total of $502.

It’s important to note that separating parentshave virtually no discretion as to whether theguidelines will apply. An agreement that is incon-sistent with the guidelines will almost always at-tract the critical attention of the court, and willoften constitute an absolute bar to the granting ofa divorce order.

Property divisionThe law generally provides for an equal divisionand distribution of family assets and liabilities onseparation, unless an equal division would be un-fair. This principle is best described as a “pre-sumption in favour of equivalency.” A finding of“unfairness” depends on certain circumstances.While subtle differences in the law across thecountry attempt to clarify these circumstances, itis accurate to say the following:

(a) The presumption is strong and not eas-ily disturbed.

(b) The party alleging the unfairness bearsthe burden of proving that equalitywould be unfair.

(c) The courts have a discretion when de-ciding how to divide family assets, andwill consider all factors, including theduration of the marriage, the role of theparties in the marriage, the connectionof one spouse or the other (and the chil-dren) to the home, and the way in whichproperty was acquired.

What is a family asset? Usually, anything that was used by the partiesduring the marriage for a family purpose is an assetthat should be addressed in the agreement, even ifthat asset happens to be a business operated by onespouse. For instance, where a wife has assumedresponsibility for homemaking and looking afterthe children while the husband has devoted him-self to the company, the wife’s efforts likely con-tributed to the husband’s success and so she willbe entitled to claim an interest in the company.

You should attach a description of your as-sets and liabilities (Schedule A) to the back of

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your separation agreement. If you and your spousehave significant assets to divide, you should getprofessional advice.

Make sure that each and every asset and lia-bility described in the schedule is dealt with in theagreement. If there are five assets and four liabil-ities in the Schedule, each of these nine mattersshould each be divided/disposed of in the body ofthe agreement. Leave nothing to the imagination.

Matrimonial homeIf one of your major assets is a home (as is oftenthe case), give careful consideration to how youwill dispose of it. Several sample solutions are in-cluded in the sample on the following page. Con-sider all your options carefully.

Remember that if your family home is to betransferred (from joint ownership) to one spouse,the non-owning spouse may still be liable for ob-ligations under the mortgage. Accordingly, ifyour agreement anticipates the sale and transferof the home in circumstances where the purchaseris not a third party (and so the mortgage will remain on title) you must consider obtaining a re-lease of that obligation. Do so before the transferis complete. Since you will likely need a lawyer ornotary to facilitate the transfer, this issue shouldbe discussed with him or her and/or the lender.

If your agreement provides for the transfer ofproperty from one spouse to the other, keep inmind that there may be significant tax conse-quences. For example, while transfer of the fam-ily home can usually be done on a tax-free basis,that may not be the case with a summer cottageor business asset. Any investment property thathas increased in value since the date of purchasemay attract tax on the gain (except in particularcircumstances). Conversely, savings (RRSPs, mu-tual funds, etc.) can be split tax free if propersteps are taken. If your agreement anticipates dis-position of assets of this type, or any assets havingsignificant value, you should get professionalcounsel from an accountant or lawyer.

Registered Retirement Savings PlansRRSPs, which are commonly shared equally be-tween spouses upon separation, can be trans-ferred tax free from one spouse to the other, aslong as there is an agreement or order to accom-modate that. To obtain the appropriate tax rolloverform, contact your local federal tax office.

Pension plansCanada Pension Plan credits and benefits accu-mulated during the marriage are split equally be-tween the husband and wife, regardless of therelative contributions each made. Even spouseswho have never worked outside the home, andwho therefore never contributed directly to theplan, are entitled to half of the pension creditsearned during the marriage by the workingspouse. The equal division rule also applies whenboth spouses worked but one paid more into theplan than the other. To qualify, spouses must havelived together for at least 12 consecutive monthsand separation must have lasted for at least 12months. A clause in an agreement that says theparties will not share CPP benefits and credits maybe unenforceable. If you and your spouse are def-initely committed to “opting out” of the usualsharing provisions of the CPP, you should obtainlegal advice on the topic.

Note: There may be time limitations on appli-cations to split CPP credits and benefits. It is bestto make the application as soon as possible. Con-tact your local CPP office for further information.

Each separating spouse is also entitled to ahalf interest in the other spouse’s employer-sponsored pension plan. When dealing with thedivision of such a plan, make certain you are com-plying with the current legislation. The plan ad-ministrator can often be very helpful, but if youremain uncertain, contact counsel.

Because the valuation of pension plans is notsimply a matter of adding up contributions andthen dividing by two, it may be necessary to engagethe services of an actuary to calculate the value ofthe pension if a trade-off or buyout is anticipated.As well, since there are several different types ofpension plans, the way a plan is shared and paidwill depend on what kind of plan is to be divided.

ENFORCING YOUR SEPARATIONAGREEMENTSeparation agreements are enforceable undercontract law principles. In addition, some juris-dictions allow these agreements to be filed (orregistered) in the court as an aid to enforcement.Accordingly, if you encounter a problem with theenforcement of your agreement (i.e., if yourspouse is not honouring support commitmentsmade in the agreement), you should speak to the

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staff at the court registry nearest to where you re-side, and ascertain if your agreement can be filedat the registry.

In addition, most provinces maintain publiclyfunded programs that offer free advice and en-forcement action where one party to an agree-ment or order is refusing or failing to pay spousalor child support. You should enquire about theavailability of these programs as well.

If enforcement of the terms of your separa-tion agreement has become problematic, do notdelay. Take action immediately, and consultcounsel if you have any questions or uncertaintiesabout which way to proceed. Your failure to takeaction on a breached promise in the agreementcould compromise your ability to effect the nec-essary remedy later.

MISCELLANEOUSAfter separation, your will may not fairly reflectyour intentions: be sure to review and revise yourwill. See the Self-Counsel title Write Your LegalWill in 3 Easy Steps.

In most jurisdictions, a separation agreementmade in the absence of independent legal adviceis nonetheless valid and binding. However, it is al-ways wise to review the draft agreement withcounsel before executing the agreement. The feesfor such review vary widely, but a reasonablerange is between $100 and $300.

Finally, be frank and fair in the making ofyour separation agreement. Contracts that aredecidedly one-sided or settled when one party ismistaken about material facts are likely to attractcritical attention in court. If either of you is un-sure about what is fair, do not execute the agree-ment until you have investigated further.

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SAMPLE SEPARATION AGREEMENT

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