Homemade Separation Agreement Penny Wise Pound Foolish

Date: 18 Jun, 2019| Author: Fred Streiman

In the recent decision by Justice Lococo of the Ontario Superior Court of Justice in St. Catherine’s, he rendered a decision after a 14 day hotly contested Trial. Numerous issues were percolating on the Judge’s stove, including retroactive child/spousal support, the income of the ex-husband, access and costs.

This couple were together for less than six years and bore two children. The husband’s income was found to be in the range of $300,000.00 to $600,000.00 per year, yet the couple felt that it was appropriate to settle matters between themselves without the assistance of lawyers and using an online Separation Agreement.

This case Witt v. Witt in which the wife largely acted for herself at the Trial could not have been more contentious, more fractious and quite frankly more destructive.

The failure of having a properly drafted Separation Agreement left open many a question that the husband certainly thought had been finally resolved when the homemade agreement was signed. This is not a matter in which one party attempted to trick the other, but the lack of specificityand terms that one would normally find in a professionally drafted agreement were completely absent in the homemade one.

This leads to the frequently asked question, are homemade Separation Agreements valid? The answer lies in whether or not they are ever challenged. In the absence of a challenge, these agreements generally survive. But quite frankly, this is nothing more than a reflection of the level of cooperation between separating spouses in which an existence of a written agreement is almost academic. Parties made a bargain and are abiding by it. However, if the real goal is to have finality, a homemade agreement is far down on the list of how one should obtain that desired result.

One can only imagine the costs that the Witts found themselves incurring. The Witt Trial included expert reportson income, and custody/access, along with attacks on property division and numerous complicated issues.

It also featured a frequent dynamic observed by the author. An enlightened and children first approach by separating spouses rarely survives when a former spouse publically begins a relationship with another. Frequently all rational thought evaporates and emotions previously checked are unharnessed.

In the Witt case, rational priorities as to the best interest of the children gave way to secondary feelings that are not beneficial and indeed became quickly destructive.

One would have thought in a family in which the relatively modest legal fees surrounding a properly drafted agreement should not have been a problem would have indeed been incurred. Perhaps the Witts thought that the less formality the more amicable the atmosphere would have been surrounding the separation. A dangerous assumption, especially when one intends on starting a new relationship.

The case also featured highly contentious access exchanges being videotaped, which in turn were described as being counterproductive by Justice Lococo, yet admitted and taken into account in the Judge’s decision. The case also featured another frequent dynamic in which disciplinary steps being taken in one household is fuel for the other parent to allege child abuse involving outside authorities such as the Children’s Aid Society. Children lose their real position within a family structure and are empowered at far too young an age.

As the author has expanded in other blogs, custody and access disputes that reach as far as the courts are often the reflection of mental health on the part of one or both of the parties involved. I have no idea whether or not this applies in the Witt case, but that is my own personal observation.

It was necessary for the Judge to produce almost nine pages of directions on how child care was to be treated. One must appreciate that nine pages of rules and regulations imposed by a court are guaranteed to produce future problems down the road. No set of rules can meet all of the contingences of life. What is needed is rational thought and behavior on the part of parents, even if they are separated, that place the best interest of the children first and foremost. Any Judge will readily concede that a settlement, especially with respect to children, is far preferable to one imposed by the court.

This decision is a ready example of the wonders of family law. Emotion meets money meets children. Why would any lawyer or Judge chose to be part of such a process unless they feel on some level that they are helping the parties that they represent or are adjudicating over?