Instructions for completing the separation agreement

Transcription

1 Instructions for completing the separation agreement Integral Publishing, owner of DivorceOnline.ca, does not, has not, and can not provide legal advice. This separation agreement template is provided to customers without any warranty whatsoever as to its legal effect or usefulness. We strongly encourage anyone contemplating the use of this agreement to review it with a lawyer prior to signing it, as with any legal document. We provide the Agreement in WordPerfect, Word and Rich Text formats so that you can revise it using your favourite word processing program to suit your own circumstances. It is not intended for use as is, or in the absence of independent legal advice. General instructions Delete all italicized type from the final version of your agreement prior to printing and using the agreement. Wherever you see an asterisk (one of the * symbols) you need to type something to replace the asterisk or delete the section entirely, whichever is appropriate in your circumstances. In many places alternative paragraphs are provided. These always have the same number or letter and it is intended for you to decide which of these alternative paragraphs is best for your agreement and for you to delete the rest. For example, in the background section there are two alternate paragraphs 1(b). The first one is for use if you and your partner co-parented one or more children. The second one is for use if you did not co-parent any children together. Decide which one applies to your situation and delete the other. Sometimes, rather than complete alternative paragraphs, we just give you a choice of alternate words. The alternatives are separated by a slash / and the words pick one inside parenthesis. For example, in paragraph 3(a) it says Party 1 / Party 2 (pick one). You should delete one of the alternatives so it reads either Party 1 shall have... or Party 2 shall have.... In many paragraphs we make an assumption about which party will be obliged to do something. For example, in paragraph 4 dealing with child support we assume that Party 1 will be paying support to Party 2. Obviously, if in your case Party 2 is the one paying support you need to reverse the number of the parties wherever they appear in the paragraph. Do not forget to renumber and/or re-letter the paragraphs after making any deletions. For example, if you delete paragraph 8 entirely then the original paragraph 9 should be renumbered 8" and the original paragraph 10 should become 9" and so on. Date and heading The date should be entered after the agreement has been signed by both parties. If the parties signed on different dates, the latter date should be used here.

2 Background 1. (a) Example: The parties were married in Toronto, Ontario on the 1st day of August, 2001 (b) Enter the full name of each child and his/her birth date. Example: John Joseph Cameron, born 15 July Add or delete lines as needed based on the number of children you have. For information about what children to include you might want to consult the federal government web site dealing with child support at If there are no children use the alternate paragraph 1(b). (c) This is the date of separation and should be the same as the date of separation stated on your divorce documents. Even if you still reside under the same roof, you may be considered to have been living separate and apart from the date you stopped living as a married couple (doing things together, going out together, sharing chores, plans, etc.) Custody and access Delete this entire section and its heading if there are no children of the marriage. If there is only one child any reference to children should be changed to child. 3.(a) There are two alternative paragraphs. The first one is for a joint custody arrangement where the parties will share decision making authority. The second is for a sole custody arrangement where one will make the decisions and the other will be entitled to obtain information about the children and to visit them but not to share in decision making. Use one or the other but not both. 3.(b) Regardless of whether you opt for joint or shared custody, you will need to specify where the children will be primarily residing. The first of these two optional paragraphs is for an arrangement where the children will be with one parent more than 60% of the time. The second is where there is a shared parenting arrangement, where the children will spend roughly half their time with each parent. The wording is just an example and should be revised to reflect the actual arrangement you have agreed upon. 3.(c) This is just one example of an access arrangement for when the children will be in the primary care of one parent and the other will have access visits. It may not be necessary to include such a paragraph if there is a shared custody arrangement. The wording should be revised to reflect the actual arrangement you have agreed upon. The rest of section 3 contains fairly typical terms which should be deleted or revised to reflect your actual arrangement. Child maintenance 4.(a) and (b) are meant to establish the basis for calculating the child support payable

3 under the federal child support guidelines which can be found here: The child support amount in (c) should be consistent with the guidelines. If not, if you ever end up asking the court to rule on an issue related to the care or support of the children, you will probably need to explain why the child support is not consistent with the guidelines and the court may override the agreement and impose the guideline table amount of child support. If there is a shared custody arrangement (where the children spend roughly the same amount of time with each parent) or a split custody arrangement (where some children reside primarily with one party and some with the other) a departure from the guidelines table amount may be appropriate. In these cases a typical way to decide on child support is to consult the tables to figure out what each party should pay the other and then subtract the results. The higher earner would then pay the difference to the other. Example: there are 2 children and the parties agree on shared parenting, The tables say Party 1, based on his income, should pay $700 per month for 2 children and that Party 2, based on her income, should pay $550 per month for 2 children. $700 - $550 = $150 which Party 1 would pay to Party 2. 4.(d) is an example of a fair way to deal with these kinds of expenses. See the guidelines here for information about what is considered a special or extraordinary expense. Spousal Support 5.(a) There are 3 choices for this paragraph. Choose one and eliminate the other 2. Real and Personal Property 6. The first 3 paragraphs (a, b and c) mean that each spouse keeps what he or she already has possession of except for the items listed. Keep adding Roman numerals if your list is longer than 3 items. 6.(d) These 3 optional paragraphs describe different ways the matrimonial home can be dealt with. Re-word as required. 6.(g) In some provinces spouses are not permitted to give up their rights to apply for a division of CPP credits. Before you change this paragraph check the rules for your province at Debts 7.(a) and (b) The more detailed the description of these debts, the less likely an argument will arise later about what was intended. Final sections The rest of the agreement uses fairly standard wording. Be careful about making any changes to it. However, you do need to put the name of the right province into paragraph 11.(a)

4 When finished remember to delete all words in italics - they are only intended to help you complete the agreement, not to remain in the final version. Also be sure to renumber or re-letter the paragraphs if you have added or deleted some. Signing Once the agreement is satisfactory to both spouses, each needs to sign it in the presence of a competent adult witness, who should also sign it. If the witnesses signature is unclear, ask the witness to print his or her name below the signature. The same person can witness both spouses signatures. A spouse does not need to be present when the other spouse signs the Agreement. Spouses can not witness each other s signature. Independent Legal Advice Once again remember that none of these instructions is in any way a substitute for independent legal advice. It is always an excellent idea to obtain independent legal advice before signing any separation agreement and we strongly encourage you to do so. In some provinces it is mandatory to receive independent legal advice prior to signing a separation agreement, depending on its contents. You should assume that this is true in your case unless you learn otherwise. We do not accept any responsibility for the consequences of a failure to obtain independent legal advice prior to signing a separation agreement. If you obtain Independent Legal Advice you and your spouse must use different lawyers (from different firms). Obtaining independent legal advice after using our kit to prepare your separation agreement can save thousands of dollars compared to having a lawyer draft the agreement from scratch. Even if you decide to have a lawyer draft your agreement you can benefit from using our kit as an educational exercise or as an aid in negotiating the terms of the agreement with your spouse. We include a Certificate of Independent Legal Advice for your respective lawyers to sign if you take our advice and we also include a Waiver of Independent Legal Advice for each spouse to sign if, contrary to our advice, you insist on not receiving independent legal advice before signing this agreement. We hope you will find this Separation Agreement template useful. If you have not already done so, please consider using our divorce document assembly service if you require divorce documents prepared for an uncontested divorce in Canada (other than Quebec). If you are already a customer, we thank you again for allowing us to assist you. DivorceOnline.ca

5 The following is an example of how the documents attached to the end of the agreement should be completed: CERTIFICATE OF INDEPENDENT LEGAL ADVICE I, John Smith of 321 Main Street, in the City of Hamilton, Province of Ontario, Barrister and Solicitor, DO HEREBY CERTIFY that I was this day consulted in my professional capacity by Jane Brown named in the annexed Settlement Agreement, as to h er obligations and rights under the said Agreement, that I acted solely for h er and explained fully to h er the nature and effect of the said Agreement and s he did acknowledge and declare that s he fully understood the nature and effect thereof and did execute the said document in my presence and did acknowledge and declare and it appeared to me that s he was executing the said document of h er volition and without fear, threats, compulsion or influence by Michael Brown or any other person. own WAIVER OF INDEPENDENT LEGAL ADVICE I, Jane Brown of 17 Pleasant Street, in the City of Hamilton, Province of Ontario, DO HEREBY CERTIFY that:... The ACKNOWLEDGMENT is prepared in the same manner as the Waiver.