Navigating A Request to Vary A Poorly Drafted Separation Agreement

Written on behalf of Arbesman Hamilton LLP

Separation agreements can be great tools in establishing the obligations and rights to couples going through separations. However, it’s incredibly important to obtain proper legal advice when drafting such an order. But don’t take our word for it, the Ontario Court of Superior Justice recently issued a decision around a request to vary a separation agreement that was drafted without the help of lawyers.

The mother and father involved in the case began living together in 1983. They got married two years later and separated in 2009 before divorcing on January 23, 2012. They had three children while married who were 19, 16 and 15 years old at the time of the divorce. The children were homeschooled by their mother throughout their childhood and into adulthood.

The drafting of the separation agreement

After separating, the mother and father entered into a separation agreement, which included an agreement on child support and spousal support. The agreement was negotiated and drafted by accountants rather than lawyers. The couple did not obtain independent legal advice despite a paragraph (43) of the agreement stating they had. The court first addressed how much weight should be given to the terms set out in the separation agreement. The court determined that even though the agreement was never formalized by a court order, “A fairly negotiated agreement that represents the intentions and expectations of the parties and that complies substantially with the objectives of the Divorce Act as a whole, as conceded here, should receive considerable weight,” adding “  (T)he parties’ comprehensive, final agreement must be accorded significant weight at the variation stage.”

On the issue of child support

At the time the separation agreement was signed. the children were being home-schooled by their mother. Both parents seemed to agree it was unlikely that their children would pursue post-secondary studies. It was the parents’ goal to help ensure their children became self-sustaining adults. The separation agreement included a paragraph obligating the mother to provide the father with updates pertaining to the health, education, and welfare of their children. The mother failed to provide any of these updates to the father, even after being directed to do so by a court order.

The separation agreement stated that if the children were still residing with the mother and either going to school full time or working full time with a goal towards self-sufficiency that he would pay child support for his sons up until their 20th birthdays and for his daughter, who was born with a cleft palate, up until her 22nd birthday.

It’s the father’s position that the children no longer required child support. In the years leading up to the trial. the children had all worked in various capacities for the mother’s business – a food truck that evolved into a year-round restaurant and was twice voted the city’s best lunch spot. They received little to no payment for their help with the business. At the time of the trial, the oldest son was living in Toronto and managing a youth centre café. Their second son was in charge of the financial affairs of the mother’s business. Their daughter was a karate instructor and an artist. Her cleft palate was surgically repaired in the years before the trial.

The court determined that the children were all self-sufficient adults and were no longer in need of child support. The court terminated the father’s obligations for all three children (with the daughter’s support having expired in April 2018).

Turning to spousal support

The father also sought a variance in the amount of spousal support he was obligated to pay. The separation agreement did not specify how long spousal support payments were to continue for, but did say they would continue until one of the following conditions were met: “A further written agreement or Court Order varying or terminating spousal support as permitted under this Contract, or pursuant to the Divorce Act or Family Law Act;” The separation agreement also contained a number of paragraphs the court found confusing, allowing for spousal support payment amounts to change based on increases or decreases in income or in the other circumstances. The court pointed out that the accountants who drafted the agreement were not lawyers and were not experienced in drafting separation agreements.

It was his position that while the mother had previous stayed at home to home-school their children, she was now running a successful business – a lunch truck turned year-round restaurant. The court attempted to determine the mother’s income but was unable to do so after she failed to provide clear financial records. The mother testified that she makes no money from the business and that it has operated at a loss since opening. However, after failing to provide adequate records of income, the court imputed an income of $60,000, therefore resulting in a lowering of spousal support payments owed to her.

At Arbesman Hamilton LLP we can help you if you have questions around issues of spousal support, child support, divorce, or separation. Our team will help you make informed decisions during a stressful time. Our pragmatic approach to family law aims to keep our clients’ best interests in mind while avoiding the high costs and emotional turmoil traditional associated with such matters. Please call us at 416-481-5604 or contact us online to schedule a consultation today.