The notes below are intended as information (and not legal advice) to help couples get their ideas and wishes organised when they are wanting to be amicable and work out-of-court, with the help of their chosen cooperative family lawyers, to prepare a Separation Agreement. These notes are adapted from the Law Society of Upper Canada website.
Translating the Information into a separation agreement
Clear drafting of a separation agreement by an experienced family lawyer is crucial.
Separation Agreement is a legal contract that should be drafted by a family lawyer. The law that applies to the separation agreement and family law is Provincial law (i.e., differs from Province to Province and Country to Country).
The separation agreement must be customized to fit the unique circumstances of each family.
Consult experts in areas that are beyond your expertise (e.g., taxation, parenting of children at different ages and developmental psychology).
As you will see from the checklist below there are technical aspects of a separation, that can only be well-drafted by an experienced family lawyer. However SECRET TO SEPARATION SUCCESS is to work together with you spouse, and your family lawyers, to organised and plan what you wish to go into your separation agreement.
At Family Law Pathways Centre (www.FamilyLawPathways.com) we will educate you and your spouse about these topics during the Early Neutral Consultation.
Examples of Topic Areas of the Separation Agreement
Depending on the uniqueness of each family, some of the following provisions may be relevant for inclusion into the separation agreement.
Children
Language of agreement – are terms for custody and access necessary? If so, are terms specific?
Rights and responsibilities: health, education, religion, major extra-curricular activities
Details of residence and access; parenting plan. If so, are terms specific?
Duty to consult, access to information
Name change – not without consent
Mobility issues
Variation of agreement and other problems that may arise
Resolution methods: mediation, arbitration, court, parenting coordination
Support
Child
o quantum – review of Child Support Guidelines
o termination of support: specific age/stage
o treatment of third party payments, impact of the Child Support Guidelines
o special expenses: (s. 7 of Child Support Guidelines) camp, university (tuition, books, etc.), private school, extraordinary expenses for extra-curricular activities
o annual Child Support Guidelines income information exchange, review and adjustment
o security – life insurance (whole or term – quantum to secure support) or other
o medical and dental insurance coverage
Spousal
o quantum – review of Spousal Support Advisory Guidelines, also other software-driven support calculations (e.g., SupportMate, MySupportCalculator)
o releases
o time limited/termination of support
o terminating events
o cost of living adjustment
o compensatory support: periodic or lump sum
o lump sum payment to satisfy support obligations
o tax treatment
o security – life insurance (whole or term, quantum to secure support) or other
o medical and dental insurance coverage
Property
Calculation of net family property (married couples)
Joint Venture, Trusts, Unjust Enrichment (common law couples)
Transfers of property (consider tax implications)
RRSPs: special rules and wording for tax-free rollover of funds
Pensions: valuations (issues of “if and when”)
Business issues: transfers of shares, resignations as officer and director
Canada Pension Plan credits
Valuation of property(ies)
Capital property – rollover at Adjusted Cost Base or market value
Capital gains and other tax consequences
Notional costs of disposition
Other Topics
Obtaining the divorce
Any Religious considerations
Costs
Independent legal advice
Financial disclosure
Enforceability of agreement