Podcast: Important Information about Separation Agreements

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In this transcribed interview with Dale Goldhawk of Zoomer Radio AM740 in Toronto, family and divorce lawyer Lorne Fine of Fine & Associates Professional Corporation discusses the most important details about separation agreements. Read the interview below, or listen to the podcast at the bottom of the page.

Goldhawk Fights Back Podcast: Recorded October 31, 2013

Dale: Suspenseful music, that’s what we have here on Zoomer Radio on Goldhawk Fights Back, which comes just before we say hello to Lorne Fine, our resident family lawyer. Lorne it’s very nice to see you in the studio.

Lorne: Thank you for having me.

Dale: And you brought all of your law books and everything.

Lorne: One big one.

Dale: One big one will do. That would make some big paper weight, that big one there.

Lorne: You’ve got to have a big book.

Dale: That’s right. Okay now, on the various aspects of family law, divorce, separation, the whole thing, where we’re going to start today is a place where I think a lot of people wonder about, and it’s called part of the process. So you’re unhappy in your marriage, how do you separate from your spouse and how do you negotiate a separation agreement? What are the steps you really take? Maybe you come home in the morning and you find your clothes on the front lawn, then it’s a pretty indication that your marriage is in trouble, but what kinds of steps, by the way, has that happened to any of your clients?

Lorne: Oh it happens all of the time.

Dale: Does it really?

Lorne: Of course, yeah.

Dale: It’s not just in the movies? Somebody comes home . . .

Lorne: The locks are changed.

Dale: The locks are changed.

Lorne: Or they come home and the house is empty. It happens all of the time, yeah.

Dale: Well then let’s go back to that original question. How do you begin the process, and I know it depends on your personal circumstances. Maybe you and your spouse are not even talking to each other but maybe you are. It would be a different scenario.

Lorne: Absolutely, so let’s assume it’s an amicable separation, because if it’s not amicable, then it’s, as you said, clothes on the line, changing locks, the police are involved and so on.

Dale: Say that’s it’s amicable, two people have decided they do not wish to be married any longer.

Lorne: So I frequently get calls from people, and they say I want to become legally separated. How do I become legally separated? It’s a common question. The answer is what does separation mean? When you’re separated, there is no prospect of reconciliation. There are certain tests that the court has for separation. One is does spouse cook and clean for the other spouse, or do you go out socially, are there still sexual relations?

Dale: Well, you can’t have sexual relations if you’re separated from your spouse, can you?

Lorne: People can be separated and still live in the same house. So there are a lot of people who are separated, so sex is one part of the test. So there is no magical court order that you get saying you are legally separated. It’s a process that you have to go through. So when somebody says to me, I want to become legally separated, usually what happens is I would send a letter to the other spouse and say we want to negotiate a separation agreement. Go get a lawyer. Let’s make things amicable and resolve all issues.

Dale: And lawyer-to-lawyer, you would produce a document that would be a separation agreement?

Lorne: Well, that’s the goal.

Dale: That’s the goal.

Lorne: Yeah. The goal is for the parties to cooperate, to provide financial disclosure, and try to come to an agreement dealing with the issues arising out of the separation.

Dale: But this would not involve the court at all at this point necessarily, right?

Lorne: Absolutely. If you can negotiate an agreement, then you don’t have to go to court. And really that’s the goal, because everyone would sooner have control over their future as opposed to going to court and having a judge decide what’s going to happen to your future. A judge doesn’t know your kids, doesn’t know you, although the judge is very qualified. Everyone would much sooner be in control of their future as opposed to having a third party decide.

Dale: But then what is the value of having a separation agreement, something you can . . .

Lorne: Okay, if you go to court, a judge is going to look at the facts, and apply the law, and come to a resolution. When you have a separation agreement, you can be more creative. You can do things that a judge may not do. You can trade off things. You may do things that a judge may not order necessarily.

Dale: With a separation agreement, the two people get to set the agenda a bit, don’t they, later when they go to court?

Lorne: Right. Well, once you have a separation agreement, you resolve, and it’s signed, and it’s done. You’ve resolved all of your issues, so you don’t have to go to court once you have your agreement. The only reason to go to court is to get a divorce. A divorce, and people have to understand that a divorce, just allows you to get remarried again. It’s a piece of paper that says your marriage is over and you can get remarried if you want to. So you don’t need a divorce. You can have a separation agreement and be separated from your spouse. So when you’re legally separated, the separation agreement is your agreement that you are legally separated from your wife.

Dale: And then it can be from then on, what we know as an uncontested divorce that goes through the court system. Somebody stamps divorce on it, and you’re done.

Lorne: Then it’s done. Then it’s just a matter of getting the papers together, and you’re free to remarry if you want to marry, number two, number three.

Dale: And do your clients run off and get married again?

Lorne: All of the time.

Dale: People live in hope.

Lorne: It’s love.

Dale: Would you say then Lorne, that it’s advisable not to have a separation agreement?

Lorne: First, you should try to have an agreement, try to come to a resolution, because it’s always good to have control. It’s always good to try to resolve things amicably. I always say it takes two to tangle. Both parties have to be willing to negotiate. If one party is very firm and refuse to be negotiable, you’re not going to get an agreement. If there are issues that are contentious and you can’t come to a resolution, that’s why people go to court, and then you have to rely going through the court system to obtain a resolution.

Dale: But would you go to court to get a separation agreement? I wouldn’t do that.

Lorne: A judge is just going to make a court order. The judge is going to make an order, the wife has custody. The father pays support.

Dale: Because there will be some outstanding issue in the absence of a separation agreement that one side or the other will take to court to have the judge decide, right?

Lorne: Right. Let’s say the parties can’t decide on what the payer’s income is, let’s say the parties can’t decide on where the kids should live, or there are complicated property issues where there are evaluation issues, and they can’t decide what the value of certain property is, you would go to court. So if I could go back to the separation again, the date of separation is important, that’s the date when we value all the assets, and sometimes people differ about what the date of separation is, I separated a year ago. I separated a month ago, and it may make a difference if your net worth changed during that time. So a lawyer’s letter, it also serves, look, there’s a letter that demonstrates that you’re separating. That’s important for if there is any concern about a date of separation, the letter usually indicates the date of separation.

Dale: For example, if your network increased drastically after the separation agreement was reached, that increase in income would belong to the person who got it I guess, would it?
Lorne: Well, if your income increased after the date of separation, it maybe after the separation agreement is signed, that may be grounds to change child support. All right, so say if your income went from $50 to let’s say $100,000 and you had a child’s support obligation, the recipient would say your income has increased; you have to pay more child support. So the agreement would have to be revisited.

Dale: That would actually wind up in court one would assume.

Lorne: If the payer says I’m not going to pay, it’s going to end up in court. And I know how you feel about statistics so I have some statistics here for you.

Dale: Oh good, good. I was hoping you would Lorne.

Lorne: about going to court. This 2006. This comes from Statistics Canada. Six out of ten people, people who are going through a separation or a divorce, made use of the court system, whether it’s mediation services, because when you go to court, you may go to mediation services or you may actually go through the court process. Six of the ten people in 2006 made use of those services. In 2006, one fifth of all parents use the court to resolve custody access issues. Thirty four percent of all civil cases in Ontario are family cases, that was in 2009, 2010. You want more statistics.

Dale: No. Six out of the ten made use of the courts, but everybody has to make use of the court if you want to finally get divorced.

Lorne: Well, this is the initial stage.

Dale: This is not the final decree and that sort of thing?

Lorne: Right. This is more like going for mediation services, family information centers, support guidance, and so on.

Dale: It’s called into action to determine something, right?

Lorne: So if you’re talking about single issue cases as far as the cases in regards to family law, access issues were the highest number of court events, so access seems to be the most contentious. 33% of all cases are contested, and very few cases actually get to a trial. Most cases are resolved at the early stages and the goal is to try to resolve issues as early as possible.

Dale: But if 33% of all cases were contested, that means that 66% were not? It wouldn’t be that clear?

Lorne: Sorry, 33% of all access cases were contested.

Dale: Oh access cases. Alright, okay. Okay, I think I’m swimming enough in the statistics now. You’ve held my head under water quite long enough. Thank you.

Lorne: Because I know how you feel about numbers.

Dale: Thank you so much, but I mean for mere antidotally, just before we hear about the weather with Mary, antidotally we seem to think that all divorces are bitterly fought at some point, but I’m assuming that a reasonable number, I don’t know what the statistical number is, of divorces are settled without too much fuss and bother and people go their separate ways. Am I living in a dream world here?

Lorne: Most cases are not resolved in a court process. Most cases are resolved by way of an agreement and negotiation. It’s only cases where it’s highly contentious or the parties can’t get along that you have to go to court.

Dale: Your lawyer and your spouse’s lawyer can’t come to an agreement with all four of you involved for the separation agreement . . .

Lorne: Well, it’s not the lawyer’s fault, okay.

Dale: Oh no. I didn’t say it was the lawyer’s fault, no.

Lorne: Sometimes it can.

Dale: But that doesn’t mean that your client can’t say it’s all of your fault, because they’ll take it out on you I’m sure.

Lorne: The lawyers take instructions from the clients.

Dale: Of course, but it’s the lawyer’s legal expertise, and it’s the lawyers ability to negotiate back and forth that allows the agreement to be written. Otherwise, why do we need you guys?

Lorne: We always need lawyers.

Dale: Oh, okay. Lorne Fine is here to answer all of your questions about that separation agreement, if you want to go that way or if you have other questions as well in the area of family law, that certainly is his specialty.

Announcer: You’re listening to an exclusive podcast of Goldhawk Fights Back for You on AM 740 Zommer Radio. Goldhawk Fights Back for You airs Monday through Friday, 11 to 1 on AM 740, Zoomer Radio.

Dale: 12:38. Lorne Fine is my guest. He’s the family law guy. We’ve been talking about separation and the value of having a separation agreement. If often happens, Lorne, that when you contact the other lawyer and the two lawyers and the two spouses sits down to work it out that you can’t work it out, that there are so-called reconcilable differences in terms of getting the agreement together.

Lorne: You try very hard, and like I said, if there are some issues where you just can’t bridge the gap, you could go to a mediator and the mediator could help the parties and the lawyers come together and find neutral ground, but the parties have to agree to go to mediation. If they don’t want to go to mediation or a mediation arbitration where you have a third party try to negotiate a solution, and if you can’t do that, then the arbitrator decides the issue. You can do that. But if the parties don’t go to mediation or arbitration, then you go to court.

Dale: All right. 401-360-0740 or 866-740-0740. Here is Christine on the line from Dundage. Christine, do you have a question?

Christine: I’m separate with a separation agreement, and my husband now lives with someone else. When he dies, who get the counter pension survivor’s benefit?

Lorne: So the CPP benefits were divided pursuant your agreement.

Christine: No. We didn’t divide anything.

Lorne: You didn’t divide anything?

Christine: No.

Lorne: Okay. So you should apply for division of CPP credits.

Christine: I just wonder if I didn’t do that is the other person legally his spouse now?

Lorne: Is your husband remarried or is he just living with somebody?

Christine: No. He’s just living with someone.

Lorne: Okay. So he’s not remarried?

Christine: No.

Lorne: Okay. You should contact CPP as far as that’s concerned. You should apply for the division of CPP credits, because you are entitled to it, and it’s done automatically.

Dale: You start with the CPP people, do you not?

Lorne: Yeah. You fill out the forms, and they’ll divide the credits.

Christine: Okay, it’s the Division of what?

Lorne: CPP credits. You can probably go on line and fill out the forms.

Christine: Okay. Thank you.

Dale: Thank you very much Christine. Usually that’s worked out before hand, isn’t it? That you would agree to separate? Although as a spouse, if it isn’t decided, you still have a right to claim for a part of the pension.

Lorne: Well, CPP is automatic. The pension credits are divided by the government. You just have to fill out the forms and it’s done, and they do it, and so that’s a property issue that should have been addressed in that separation agreement. And if it’s not addressed, she still gets to apply and get it.

Dale: But certainly a separations agreement can refer to that, and could, as Christine said, we didn’t split anything, but a good separation agreement would do that, wouldn’t it?

Lorne: Absolutely.

Dale: Otherwise, why are you doing it?

Lorne: Yeah. I don’t know what’s in her agreement. It may be custody access issues, but you would think that you would want a separation agreement in dealing with all of your issues instead of having these issues hang out there, so the property issue should be resolved as part of the agreement.

Dale: But even if you get the separation agreement as I think you mentioned earlier, things can change.

Lorne: Property is resolved, so that’s not going to change, and if there is full disclosure, that’s not going to change. So it’s very important to have full disclosure with your assets and liabilities before you enter into the agreement. But dealing with child support, that can change, anything dealing with custody access can change.

Dale: Access problems, and if one spouse says no to visitation or whatever it might be.

Lorne: Whenever it comes to a child, the court is not bound by what is said in the agreement. A court can always override what’s said in an agreement when dealing with children. So you can’t say in the agreement, the court shall not review custody access issues, because the court always can.

Dale: Oh, good luck, right.

Lorne: It doesn’t work.

Dale: I didn’t realize that. So the court, when kids are involved, the court makes those determinations.

Lorne: You can put whatever you want in the agreement . . .

Dale: That’s a proposal, really . . .

Lorne: Yeah, because the court can always say that’s not in the child’s best interest. It’s always up to a judge to evaluate if what was provided in the agreement was not in the child’s best interest.

Dale: That’s a tough job for the family court judge, isn’t it?

Lorne: It’s not an easy job. It’s a tough job, especially in some courts, like the Interior Court of Justice. I’m thinking North York 47th Shepherd, very busy court. A lot of cases in dealing with custody access and support issues, it’s a tough job.

Dale: I recall Harvey Brownstone.

Lorne: A good judge.

Dale: A good judge, has written a lot about this situation and says just to describe how tough it is, and the fact that he’s called upon to make these decision that are in many cases very difficult to do.

Lorne: Oh yeah, and he’s quite colorful. He’ll tell people exactly what they’re doing and put them in their place. He’s a good judge.

Dale: But don’t you want a judge to do that sort of thing? A judge to be . . .

Lorne: Active.

Dale: It’s his or her courtroom, and if you are going to come before that judge, the judge gets to judge.

Lorne: That’s a very busy court.

Announcer: You’re listening to an exclusive podcast of Goldhawk Fights Back for You on AM 740 Zoomer Radio. Goldhawk Fights Back for You airs Monday through Friday, 11 to 1 on AM 740, Zoomer Radio.

Dale: 12:39, our divorce lawyer, Lorne Fine, is here answering your questions. We’ve been focusing on separation, if that is where you would like to go, 407-360-0740 or 866-740-4740. Linda is on the line from Elmira. Linda, do you have a question?

Linda: Yes, I do. It wasn’t stipulated in the separation agreement, but he remarried and has deceased, does the ex-wife still have right to the split of the CPP pension?

Lorne: Again, the CPP question. So you didn’t apply for a division of CPP credits?

Linda: No. It did not happen. No.

Lorne: Okay, well, if the agreement didn’t provide for it, how long have you been married for?

Linda: They were married for 24 years.

Lorne: Oh. So for how long have you been married for?

Linda: We were married for 26. We were together for 31 years.

Lorne: Okay, that’s a CPP question more than a property question. So you’re entitled to the division of credits as of during the course of your marriage. I’m not sure as far as limitation period when you could apply, because you were separated for quite some time, because you really need to contact CPP to see if you even can do it.

Dale: If you can even go back that many years for example.

Lorne: Yeah, because there is a limitation period. To claim for divisional property is six years from the date of separation and two years from the date of divorce. So it seems, as far as property claims that you’re out of luck. You would really have to inquire from CPP to see if you can make a claim now.

Dale: Yeah. Okay. Thanks very much Linda.

Linda: Thank you very much. Have a good day.

Dale: All right. So that’s something that a person who may not be that bread winner, though it’s not that quite simple. I understand that. If the separation agreement does come into being, and it doesn’t even talk about CPP, you as a spouse would contact CPP and work out that division with CPP on your own.

Lorne: Right. In this situation, it’s a long delay.

Dale: Wow. That’s a long time ago.

Lorne: For claiming property, 6 years from the date of separation or 2 years from the date of divorce. So I don’t even know if she can. It’s been such a long delay.

Dale: But my point is you would do that by yourself early on in the situation just so that you protect yourself.

Lorne: Yeah. Do it right away.

Dale: Right, okay. All right; here is James on his cell phone. James, do you have a question?

James: Yes. I do. I had an uncontested divorce, because I’m listening, I’m concerned about the CPP stuff. We never addressed anything. We just got a divorce. The children were adults, we lived apart for a good, seven or eight years, and got a divorce, and now it’s been probably ten years since I’ve seen her. How should I protect myself? I haven’t remarried or is there a pitfall that I’m not looking at?

Dale: Does she have some claim on your CPP? Is that what you’re asking?

James: Does she have a claim on anything?

Lorne: Yes. I don’t know what property you accumulated during the marriage, but she would have a claim to the property.

James: That was all resolved back then.

Lorne: Okay.

Dale: Remember he’s been divorced for ten years.

Lorne: Oh, he’s been divorced for ten years.

James: Yeah.

Lorne: What about spousal support?

James: No.

Lorne: So, is her income less than your income or was it less?

James: Yes. It was.

Lorne: One thing about a separation agreement, if you can get a spousal support release, that’s cool, right, because a spousal support release would provide that neither party would claim the other for support in the future. In this case, you’ve been divorced for quite some time, it could be hard for her to come back and claim spousal support from you. Property issues you said were already resolved.

Dale: But what about the CPP? That’s really what he’s talking about.

Lorne: CPP, again, during the course of the marriage, he’s entitled to division of pension credit. Again, there is a delay, that may or may not be a problem. I’m not certain. She would have to contact the CPP to see if she could get a pension credit division. But you can’t shelter your pension credits. She’s entitled to do that. Of course, you would get notice . . .

Dale: So theoretically it could happen, but you would get notice on it, and after ten years, it would be . . .

Lorne: Yeah. It seems like that’s a long delay, that’s a different issue dealing with CPP, which I am not 100% certain on. So it’s a very specific. . .

Dale: You may want to just satisfy your own concern here, James, you might want to deal with CPP yourself and see what the situation would be in your case.

James: I would probably have the same rights as she would, wouldn’t I?

Lorne: That’s right. You have the same rights as she has. She accumulated credits and so did you, and those credits would be equalized. So you both have that right, but it seems like a long delay.

Dale: James, thanks very much for that. Again, that’s something that you don’t need to, that’s not a divorce issue, that’s a CPP issue.

Lorne: Yeah. It’s automatic. You fill out the forms and the credits are divided.

Dale: Okay, here is Bob on the line from Bradford. Bob, do you have a question?

Bob: Oh, more or less a comment. It doesn’t matter what you write in your separation or divorce agreement as far as pension is concerned for CPP, because I had it written in mine, and they are going to do the division anyway.

Lorne: That’s right. You can’t contract the division of CPP.

Dale: That’s what we just said.

Bob: I just thought I’d mentioned that.

Dale: It sounds like you’ve been there and you’ve experienced that so you already know that.

Bob: It actually happened to me, and I was surprised when it happened. It was written right in my agreement, and she did ask, and I guess it was coming up six years or something and that’s why she did it, because it didn’t make any sense at the time.

Dale: She waited six years after the separation?

Bob: My wife is a mediation person. That’s what she does for a living, so I was doomed from.

Dale: She knew the ropes right?

Bob: Yeah. She knew all of the judges by first name too.

Dale: Bob, thanks very much for that. Again, it goes back to the point that, if you’re in that kind of situation go to CPP and apply for that division.

Lorne: And like the listener just said, you can’t contract out of it . . .

Dale: Right. It doesn’t matter what the separation agreement says about that, because the same way it doesn’t matter what the separation agreement says about kids, because the judge can overrule that. I’m just adding up the things we’re learning today, Lorne.

Lorne: I hope we’re learning something.

Dale: Oh, we are. Here is Annette on her cell phone. Annette, you have a question?

Annette: Yes I do have a question. It’s regarding, we did not have a separation agreement, and we did go to court on a case conference. Then after that process, had to pay him money and that sort of thing, and I had to do that. There was a part of the case conference that wasn’t settled so what happened was I had apparently been in contempt of court, and then he went through a process of suing me, and I didn’t know when the case was at the court, because I didn’t receive that notification.

Dale: Annette, I’m going to run out of time. This is too long a story. Can you get to the question?

Annette: Okay, here is the question. The judge had decided at that point, $1,000 was what I would have to pay to settle that, and I have never paid that, and he got back together with me, and that’s hanging in the courts. Would you suggest going to the court to resolve that?

Lorne: You reconciled?

Annette: Yes.

Lorne: Okay. Well, that’s interesting. And you still have that order hanging out there?

Annette: It’s outstanding, and I wonder what to do with that.

Lorne: Well, it would probably be best if you both had separate lawyers.

Annette: We did had, yes.

Lorne: Okay, but you could just do it now and set aside the order. Do it on consent.

Annette: Can I go to court myself or he can go to court with me to do that?

Lorne: You’d had to fill out the necessary forms. It’s probably best to, it’s not a lot of money, and retaining lawyers may not justify the cost, but go to the court and see if someone could help you there. Maybe there is duty counsel to help you fill out the right forms.

Annette: Duty Counsel.

Lorne: Right.

Dale: All right Annette. Thanks very much for the question. So that’s a detail that you just shouldn’t leave hanging. You should deal with it, right?

Lorne: Well, it’s loose ends, so you might as well clean it up.

Dale: Lawyers don’t like loose ends. Lorne, I’m speaking on your behalf. Lorne, thanks for being here once again. We appreciate all of your answers.

Do You Need Help with a Separation Agreement in Toronto?

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