Getting legal advice is not a sign of weakness. It's a sign of wisdom.

By AJ Jakubowska

?2017 – AJ Jakubowska Professional Corporation

In my 21 years of practice, I have had many clients who retained me to “fix” a problem with a Separation Agreement. The problem? - it was home-cooked, without legal advice, without financial disclosure, without an understanding, in fact, of either party’s legal rights and obligations on separation. At some point after the agreement is signed, there is a problem. For example, one of the parties is not making agreed-to payments or the parties are interpreting differently a key term of the agreement. There are also situations in which one of the parties, after signing the agreement, realizes they “gave away the store” – he or she then tries to recapture their original rights by arguing the bargain is not binding.

Why do people do this? Why do they enter into such important agreements without the benefit of legal advice? The reasons are many and they really depend on the specific facts of each case. There are some discernible generalities:

1.      Many separating spouses believe that involving lawyers is a waste of money. Some feel they cannot afford legal representation. Others genuinely cannot.

2.      Many individuals equate the word “lawyer” with the word “war”. A number of my clients told me that they specifically did not hire a lawyer at the time they negotiated their home-cooked agreement because they believed doing so would complicate matters needlessly, “spook” the other spouse, and make negotiations more difficult, if not impossible. There is still a commonly-held perception that only those who have something to hide or “argue their way out of” need legal representation.

3.      There are situations in which one of the spouses applies pressure and insists that there will be “no deal” if lawyers are involved. Such situations are handled in a unique way down the road and agreements negotiated and entered into in such circumstances may be vulnerable to being set aside.

4.      Many people still do not consider the work of lawyers as adding any value. I cannot tell you how many times I have reviewed home-cooked Agreements and identified terms which are clearly not based on the law and which, from time to time, deprive a deserving person or even a child of financial support. When I identify the problem for the party who came to me to fix a problem with the agreement, they exclaim: “I did not know that!”  Ignorance may not be an available defense, depending on the circumstances. The lesson – inform yourself! Legal advice IS added value.

To a casual, uninformed observer, family law may appear as simply based on common sense. I once heard family law described as “cups and saucers”. We all have common sense, right? So that would mean an average, reasonably bright person should be able to navigate their way through a Separation Agreement, right? There are lots of precedents on the internet, I am told from time to time, and then asked: “Are they any good?” We divide everything in half, right? And child support ends at 18, right? Wrong.

A properly drafted Separation Agreement is a document, a contract between the parties, which deals with all issues arising out of their separation. That agreement is to serve as a roadmap for the parties’ dealings with one another, down the road, particularly if children’s issues and support are involved. There are many issues which home-cooked contracts do not address simply because neither party was aware of their being an issue at the time of the negotiations. Take mobility as an example. A Separation Agreement provides for shared parenting but does not address mobility. What if one of the parents decides to move? Can they move? Where can they move? Do they have to let the other parent know? With how much notice? What about dispute resolution? Have the parties considered how future disagreements will be addressed or is the agreement silent on this point, leaving them with Court as the default option?

Many Separation Agreements create financial rights and obligations, including tax consequences. You would not undertake a root canal on yourself so why would you deal with issues as important as financial support for your child or your obligation to pay child support without the benefit of legal advice?

Legal advice does not automatically mean that you have to retain a lawyer and have him or her assist you throughout the case. Lawyers in Ontario now provide unbundled services as well. These are services for limited, focussed, specified work. For example, we have been retained to provide unbundled services in connection with the drafting of specific court materials. Limited, focussed advice on the terms of a Separation Agreement is also possible.

Without the right information, it is virtually impossible to make an informed decision. The less information you have, the greater the risk your decision on an issue will flawed. The more information you have, the greater the likelihood that your decision will be reasoned, balanced and fair to both parties.

Having a lawyer does not automatically mean war. The extent of your lawyer’s involvement is controlled by you. Inform yourself. Hire a lawyer to provide you with the information you need to make informed decisions about issues arising out of the separation. Insist that your spouse have legal advice as well – this minimizes the possibility that he/she will later try to attack the agreement by arguing that they did not understand the bargain.

Good luck!