So You’ve Separated…Now What?
By Timothy Henderson | August 16, 2020
If you have recently separated from your spouse, or are considering a separation or divorce, attempting to keep the relationship amicable and entering into a consensual agreement is often the best way to resolve the issues and loose ends that need to be tidied up. There are many forms of “alternative dispute resolution” available. You can consider:
- Mediation with a trained facilitator (who can be a lawyer or non-lawyer);
- Collaborative Family Law;
- Negotiation, with or without lawyers assisting the parties.
One or more of these options may be appropriate in your situation, depending on circumstances such as family violence.
Compared to conflict-based approaches, there are many benefits associated with alternative dispute resolution approaches:
- It will typically be more cost-effective;
- It can lead to a more timely resolution;
- It will often reduce the conflict between the parties and help preserve your working relationship with your ex-partner;
- The amount of stress that you experience personally through the process will often be reduced; and
- It will leave both parties – not a third-party decision-maker – in control of the outcome.
This is even more important when you share children together. After all, you and your ex-partner will be connected for life by them!
That said, in any separation there are many areas of concerns, pitfalls and potential minefields to be aware of along the way. Here are just some to keep in mind.
DO NOT:
- … Rush the process, wherever possible. Remember, this can be a highly emotional time. Take time to process what you’re going through, especially if it’s very recent, or if you were caught by surprise by the separation. Get the professional assistance that you need from various outside sources (such as a counsellor, financial advisor, employment advice, and the emotional support that you desire from family and friends).
- … Agree to anything before you are ready. Rarely is it necessary to rush into an agreement with respect to the legal issues in your matter. Don’t fall into the trap that you need to agree to something immediately for it to be available to you. If there is urgency, seek legal advice prior to finalizing any agreement.
- … Allow yourself to be harassed, bullied, abused (verbally, emotionally, physically, sexually, etc.), coerced, and/or intimidated. This includes in your home, at your place of employment, in public, on your electronic devices, and on social media. You do not need to tolerate such behaviour from your ex-spouse! Delete or block electronic communications if warnings have not halted unwelcome behaviour, and do not hesitate to report criminal behaviour to police. There are many good community resources available to victims of abuse, including the various shelters.
- … Allow your children’s welfare to be put at risk. You are your children’s parent, and you are always the person in the best position (not your lawyer) to decide what is in your children’s best interest. If a situation arises that is beyond your control, contact police (Thunder Bay Police Service, O.P.P., A.P.S., or N.A.P.S., depending on your specific location) or the child welfare agency (Children’s Aid Society or Dilico Anishinabek Family Care, as appropriate.
- … Sign an agreement reached with your ex-spouse with your ex-spouse while he/she is present. Signing a document in the presence of your ex-spouse could lead to future allegations of intimidation or coercion.
- … Sign an agreement reached with your ex-spouse without witnesses. Also, don’t use the same witness for each party. These are requirements for a valid domestic contract under the Family Law Act of Ontario.
DO:
- … Obtain legal advice as early as possible. There are a number of issues in a separation where your actions very early on in the process may create significant prejudice to your legal position(s) (for example, access to the family home or custody and access rights to children). Having legal advice can empower you in making decisions that are right for your unique circumstances. A lawyer can also help you determine if there are issues of a time-sensitive nature that may require urgent attention, and discuss with you any applicable limitation periods (deadlines) and other concerns that you should keep in mind as you move forward.
- … Carefully check the sources of any information that you use from the internet (or other sources), both that they are from reputable, trustworthy sources, and that the information is applicable to our jurisdiction (for example, some separation/divorce principles are Canadian-wide, and some, such as property, are Ontario-specific).
- … Be careful about using Separation Agreement forms and precedents, even from reputable sources. Good tools used the wrong way can still create significant harm. It is important to note that many of the provisions in a Separation Agreement are complex and/or nuanced, and properly applying them to your specific situation should be left to the expertise of a professionally trained family lawyer.
- … Exchange robust financial disclosure with your ex-spouse prior to finalizing your Separation Agreement (otherwise called “full, frank” disclosure). This will minimize the chance that the other party could later claim that the Agreement was entered into on the basis of “material non-disclosure” or “material misrepresentation” of a significant piece of financial information. This should include disclosure of all significant assets and debts of both parties, on both date of marriage and date of separation, including the “Family Law Values” of any defined benefit pension plans (which you will need to order from your pension plan administrator). In a family law court proceeding, such financial disclosure is mandatory.
- … Encourage that both parties obtain independent legal advice (I.L.A.) before signing any Agreement. Of course, this is optional, as such advice is not a requirement for your Agreement to be a valid, binding Domestic Contract in accordance with the applicable legislation (Ontario’s Family Law Act). A major benefit when both parties obtain ILA prior to signing is that it becomes more difficult for either party to later claim that the Agreement (or part of the Agreement) should be set aside because that party did not understand its terms or the implications of what they were agreeing to (and this does come up quite often).
If you have decided to separate or are considering a separation, contact Henderson Family Law to set up a consultation with one of our experienced family lawyers.
DISCLAIMER:
This content is provided as a general informational source by Henderson Family Law, and does not constitute legal advice or opinion, or establish a lawyer-client relationship. Every situation is complex and fact-specific, and appropriate advice will vary accordingly. Do not rely on this information for legal decision-making under any circumstances. Please consult with us and obtain proper advice and strategy concerning the specifics of your particular situation.