AGREEMENTS

How to Formalize an Agreement Settling Your Family Law Dispute?
Spouses can make agreements regarding financial issues (spousal support and property).  Parents can make agreements regarding their children (parenting arrangements, and child support).

 

With any agreement, there are a number of issues:

• Does the form of the agreement (dated, signed, etc.) meet legal requirements?

• Was the consent voluntary?

• Did the parties have the capacity to make a decision?

• Do the terms of the agreement reflect the intention of the parties?

• Do the parties understand the content and effect of the agreement?

• Was the consent informed - did the parties have the information reasonably required to make the decision?

• Do any of the terms go against public policy or the best interest of the child?

 

Generally, the agreement needs to be in writing, dated, signed by the parties, and witnessed.  The agreement must be clear.  However, this may not be enough.

 

If the parties decide to follow the agreement now and in the future, then even a verbal agreement may be enough. 

 

However, even in these cases, there may be problems with a third party, for example Ontario Works, Revenue Canada, or the courts.  If it is something you need to rely on , it is worth the effort to do it right.

 

Parties may later change their minds about following the terms or there may later be a dispute about what the terms are.

 

What if There is a Court Proceeding?
Parties are encouraged to settle their disputes by agreement. Usually, the court will require this be done in a written agreement called "Minutes of Settlement".  The judge may make an order based on the terms of the Minutes of Settlement.

 

The terms of a court order can only be changed by a new court order.  Unless the order specifically authorizes it, the parties cannot agree to change the terms of a court order without going to court.

 

Can an Agreement be Changed?
An agreement can normally be changed by another agreement.  (The second agreement should refer to the agreement being changed.)

 

An agreement can be filed with the court for enforcement of support.  If this is done, it becomes a court order that can only be changed by a new court order.  To change a support agreement filed with the court for enforcement requires a new court order - an agreement just between the parties is not enough.

 

Also if your agreement is in the form of Minutes of Settlement, that become a court order, then a new court order is required to change its terms.

 

See the memo on Changing Final Orders and Agreements.

 

Can an Agreement be Set Aside?
An agreement can be set aside so that it is of no effect.   Judges try to balance fairness with the ability of parties to make final agreements.   Proceedings to set aside agreements are complicated and very often highly contested.

 

Do You Need a Lawyer?
The safest practice is to have a lawyer review the facts and documents, ensure the necessary documents and information is disclosed, prepare the agreement, and give you legal advice.  It may even be necessary to clarify or even re-negotiate some terms of a proposed agreement.

At a minimum, get advice about the risks of not doing a formal agreement with full legal advice.  See Independent Legal Advice.