If the parties are able to negotiate a settlement, their lawyers will draft a document called a “Separation Agreement” or Minutes of Settlement. This is a comprehensive document that stipulates the rights and responsibilities that the parties have agreed to. Once the agreement has been drafted and approved by the parties and their lawyers, each party signs same. The Separation Agreement is effective once signed by both parties. The lawyers can then send the Separation Agreement to the court and have portions of it turned into a Court Order, which is discussed more particularly below. If the parties do not choose to turn their Separation Agreement into a court order, they may have to initiate a court action in order to remedy a breach of the Agreement.
Before signing a Separation Agreement, it is important to ensure that each party has made complete and accurate financial disclosure. Also, you must seek independent legal advice from your lawyer before signing same as you may be taking on significant responsibilities or waiving important rights. If these things are present, it will be very difficult to alter the Separation Agreement once it has been signed.
After the Separation Agreement is signed, the parties should ensure that they continue to provide their spouse with updated financial disclosure on a yearly basis. Although such disclosure is only required if it is specifically provided for in the Agreement or where child support is payable, recent case law highlights the importance of exchanging this documents in any event. If either party fails to do this when required, they risk having costs awarded against them and paying retroactive support.
Any decision made by a court and parts of any Separation Agreement properly executed by the parties can be turned into a Court Order. This means that it can be enforced using the powers of the courts in the event of a breach. If the Court Order deals with a monetary award other than child or spousal support, the Order can be enforced by garnishing the payor spouse’s income or bank accounts or by placing a lien against their property. If the Order deals with non-monetary relief and one of the parties breaches the Order, you can bring a Motion to find them in contempt of Court. Once a party is found in contempt, they face a variety of potential sanctions including the possibility of spending time in jail.
If a Court Order deals with child or spousal support, this portion is enforced through a government body called the Family Responsibility Office (“FRO”). The FRO also has the ability to garnish a party’s wages and/or bank accounts, but they also have more far-reaching powers like the ability to place someone in jail or suspend their Driver’s License. Although FRO is an invaluable tool in the enforcement of support, you should be aware that it can take several months before the FRO begins the enforcement process.