Separation Agreements
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.
Court Orders
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.