A separation agreement signed under threat of losing the family home. An ex whose income was way higher than claimed. They combined in Ontario family court to create the perfect storm. The divorcing couple at the bottom of it both claimed to be the innocent party.
Setting Aside a Separation Agreement
Fourteen years after their nuptials, Allyson and Charles were done with their marriage. They separated in August 2015. But just two months before they finally agreed to part ways, they signed a separation agreement. It came back to haunt him in Ontario Superior Court of Justice.
Financial Support a Child’s Right
Barely a month had gone by when the husband filed for divorce. His wife responded by asking the court to increase the child support and alimony she had agreed to. To “put her best foot forward,” she would need her ex’s financial records for the past four years, she told Ontario family court. Without full and frank financial disclosure, the court had no way to judge if her claims were fair. The judge was on board. Child support is a right of the child, not parents, he commented.
When Application is Abuse of Court’s Time
Her ex-spouse had a differing view. His wife’s family court application was the third try to get financial information, he argued. By going back to court, she was going over the same ground again and again. His wife had independent legal advice that the separation agreement had shortcomings and signed it anyway, he claimed. In any case, her premature request was an abuse of the court’s process.
Overruling an Unconvincing Argument
Not so, the judge said. While the court had not ordered the husband to fully disclose his financial position (yet), his wife had a legal right to ask. Their separation agreement didn’t bar her from going to court or asking for more child support or alimony. Clearly, the judge said, financials revealed after a separation agreement was signed could affect how much child and spousal was paid.
Giving Family Court Your Financials
The final child support and spousal contributions could only be settled by “full, true and plain disclosure.” But was how much money a husband made three years after he moved out important? Not until the court decided if the 2015 separation agreement was valid, the judge ruled, or if their case required a trial or mediation.
Withhelding Financials Frustrates Support Claims
The husband’s extensive financial holdings had been revealed in his 2015 income taxes, filed after the couple separated. They totalled 16 times what he had revealed in the separation agreement just months earlier. He argued he was taking advantage of upcoming changes to Canadian tax laws by declaring dividends early. The huge increase in earnings was a one-time only event. She argued he was withholding his finances.
Spousal Alleges Abuse and Duress
The wife’s concerns went far back, she said. She and their three children had been emotionally abused and her husband was emotionally controlling throughout their marriage. The couple had been separated for two years before they signed the agreement, but she had stayed with him in their matrimonial home because she had “nowhere to go and no financial independence.” Spousal support isn’t forever, but can be awarded when couples have a significant gap in their incomes. How long a couple is married, their financial means and needs and their roles in the marriage can all influence how much support is appropriate and for how long.
Signing Under Duress
Stressed and under constant duress, she agreed to an unfair separation agreement based on income that was far less than her husband later included on his income taxes. She claimed she had been given 48 hours to sign. Her husband’s lawyer had threatened that if she didn’t, the home where she was supposed to move would be sold. In fact, she said, he had only declared “a fraction of (his) true income for support purposes.” That was the real reason she had asked the court to recalculate how much financial support the family received. The judge gave him two weeks to disclose documents used for his income taxes and his business financials for 2014 and 2015. It was a first step in deciding if the separation agreement was truly fair.
Changing Child Support or Spousal Payments
Had they chosen to, the couple could have agreed to change their child support or spousal payment arrangements without the court’s involvement. Even child custody can be settled outside of court. While a lawyer or mediator can be used to finalize a written separation agreement or changes, it’s not required. But emotions being what they are, it’s small wonder their long journey through court had only just begun.
Legal Advice for Separating Common Law Couples
Axess Law’s affordable, flat rate family lawyers can finalize your pre-divorce separation agreement quickly and professionally. Video conference online with a licensed family lawyer anywhere in Ontario 7 days a week, day or evening. Call 1-877-522-9377 or in Greater Toronto 647-479-0118 or use our online booking form to make a convenient video call appointment. Flat rate lawyers can meet with you in person at our Ottawa, Toronto, Scarborough, Vaughan, Etobicoke, Mississauga Winston Churchill or Mississauga Heartland law offices.
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