Do we need a Separation Agreement?

Instead of a Separation Agreement, drafted by a lawyer, signed and witnessed, most couples do not anything more formal than a Memorandum of Understanding (“MOU”).

Still, if a Separation Agreement is required, there are ways to reduce the costs of getting the document prepared. When a lawyer receives the MOU, they can easily convert this into a Separation Agreement to meet the requirements of your lender / mortgage company or Pension Plan Administrations.

Outside of the financial institutions, there are rare instances where a Separation Agreement is required. You don’t need to show the Court your Agreement to get divorced! I would suggest that for most couples, the Separation Agreements is unnecessary. If both parties are satisfied with the MOU, the Separation Agreement is redundant and an unnecessary expense.

You, too, were once a child…

Clients often have difficulty when a ‘new partner’ is introduced to the children. This is even more emotionally complicated when it’s the other parent’s new partner – not yours. It is entirely normal to feel threatened by the new relationship, or wondering how you measure up to this new person. Jealousy, insecurity, anger, resentment, sorrow – these are all entirely expected emotions.

It can be painful for clients to accept that their former spouse has another important person in their life, and it’s impossible to forever prevent the children from meeting the new partner.

The introduction of a new significant other into the life of your child should be a well contemplated occurrence.  There is a great deal of literature on the subject, yet there is no ‘one size fits all’.  Mediation offers a perfect opportunity for co-parents to negotiate when it’s appropriate to make introductions, how such introductions should be made and what boundaries might need to be respected. These terms can be spelled out in a Memorandum of Understanding or Separation Agreement, but clients need to accept that some situations are beyond anyone’s control.

Ultimately, it is up to each party to use their best judgment and parental instinct.  Put yourself in your child’s shoes: when first meeting a new boyfriend or girlfriend - would you be confused? Would you feel sorrow?  Resentment?  Anger?  Neglect?  Take your time when introducing a new partner to your children.  Respect yourself; respect your former partner; and your child. 

Think like an adult by remembering the ‘child in you’.

What happens after the Mediation is completed?

Just as mediation is tailored to meet the needs of each family, so is the ‘wrap-up’. Almost without exception, I provide a detailed Memorandum of Understanding to the couple. This summary goes through all the issues that we discussed and how the matter was settled is described.

I always encourage couples to seek independent legal advice as they journey through the mediation process. Certainly, speaking with a lawyer for legal advice before committing to any terms is important, but not obligatory. When the parties are ready, I ask them to sign the Memorandum of Understanding (“MOU”).

Is a Separation Agreement necessary? Maybe… it depends! If you are asked to provide a Separation Agreement by your lender, the MOU can be quickly converted.

If you are legally married, you may wish to file for a Joint Divorce. With all the issues settled, especially parenting arrangements and child support payments, the divorce process is a matter of filing paperwork and waiting for the Supreme Court of BC to enter the Divorce Order.

Do we need a Separation Agreement in order to obtain a divorce?

Couples going through the mediation process routinely ask with a Separation Agreement is required in order for them to get a divorce. The simple answer is ‘no’ – you don’t need a Separation Agreement to get a divorce.

The Supreme Court of British Columbia will grant parties a divorce as long as they have been living separate and apart for one year; and, have an agreement in place for the financial support and parenting of their dependant children (Children of the Marriage). 

In my mediation practice, parties work together in a ‘give and take’ process of listening to one another and working to resolve differences and separate their lives.  The end result is a Memorandum of Understanding (“MOU”) which sets out the parties’ overall intentions. The parties will sign the MOU to indicate their agreement to the terms. They can reference the MOU if issues arise to remind themselves of the decisions recached in mediation.

What is my Date of Separation?

It is easy for most family law clients to answer the question:  When did you begin living together in a marriage-like relationship?  It is far more difficult for clients to answer:  When did you separate?

Typical answers include:

“‘We’ve been living apart but in the same home for years…”;

“We have not been intimate in months…”

“We rarely go out together…”

“We have had separate bedrooms for years…

At this point, lawyers and family mediators engage their clients in a discussion on the Law and the importance of establishing a ‘Separation Date’. Generally speaking, a separation date is important for a few reasons:

Parties who are married can only be divorced from one another when they have lived separate and apart for a period of one year and have not attempted reconciliation for a period of more than 90 days within that year;

Part 5 of the Family Law Act stipulates the separation date is important as it has implication on the valuation of assets including pensions; and

The quantum and duration of spousal support ultimately depends on the years of marriage or length of the marriage-like relationship.

If spouses live under the same roof but are doing so only for the interim,  for the sake of practicality, it is wise to have a Written Agreement, confirming your intentions to separate and the date of separation.

If you (and your spouse) cannot agree on the Date of Separation, your lawyer or family mediator can help you establish a reasonable date.

Access and Parenting Time during the Holidays

Do not lament in the fact that things are not the way they used to be.  Create new traditions!  Invite more people, surround yourself with friends.  Extend your home to someone new, perhaps someone who adds intrigue to your celebration, comic relief, or a new storey!  Play fun music.  If your children are teenagers, let them invite a friend to join in at some point of the celebration.

Whether it be Christmas time, New Years, Birthdays, Thanksgiving, Halloween, or the like, celebration times for divorced families can be very stressful.

Parents are often riddled with guilt and may even be mourning the loss of what used to be.  The loss of a unit, the loss of grand gatherings, of two families, of tradition – and the same holds true for children.

It is your responsibility, as a parent, to ensure that all of these celebratory times are made special for your children.  Yes, this is absolutely possible!

It is incredibly valuable to plan ahead.  Make sure you and your ex spouse are clear on who will have the children and at what times.  It is important to be flexible and leave room for marginal error at this time.  Trust that the other parent is doing their best to keep to a schedule, even if you know that may not be the case.  Now is no time to engage in battles.  Think about its effect.

Remember that as children grow older, they may want to join their friends for celebrations.  Try not to get offended by this and instead, create compromises with your children.  The key is to embrace change and listen clearly to what your children want, within reason.

Have perspective -- remember that all those families who look perfectly content, probably aren’t.  This is one great fallacy!  Instead of focusing on those who you perceive have it better than you, focus on those less fortunate.  Make it a holiday to be charitable.  Cook extra and deliver to a homeless shelter.  There are so many worthy causes and having your children witness this, in you, is the ultimate in the celebratory spirit.

Your greatest gift to your children, at any time, is seeing you thrive!

If you and your parenting partner cannot come to terms on a fair parenting arrangement for the Holidays or anytime during the year, Mediation is an effective means of addressing such issues.

Please do not hesitate to contact me www.victorylaw.ca

Lone Parenting

When faced with the end of a relationship involving children, a bulk of the literature focuses on co-parenting, on how to work together, in a joint custodial situation, in order to parent.   The focus seems to be on mutual respect, open communication and consistency...it all sounds so easy.

Reality bites when you are alone and faced with the endless situations that require quick judgment, otherwise known as parenting.

The best bet is to focus on each specific situation -- in isolation.  Sometimes, looking at the big picture can be overwhelming and may cause feelings of incompetence.  My suggestion: tackle one play at a time.

It is important to remember that you can only be the best you can be.  It is easy to blame the other parent – the spouse who walked out, the partner who inflicted the situation on the family – but none of that is useful.  There is no dry run to parenting.  It moves in real time. Do not blame the other parent and try not to focus on what may be said about you. Rather, channel your energy into growth and self-betterment.

If you are the mom, be the mom.  If you are the dad, be the dad. Do not think that you have to adapt qualifications of the other parent.  You don’t. 

I recall, some time ago, feeling personal guilt because I could not be a dad to my son.   I honestly believed that I had to be 50% mom and 50% dad.  All that did was split the quality of my role in half.  I could not adapt the traits and abilities of my ex spouse.   I was in constant defeat.  I could not throw the ball the same, I could not fix things around the house, I could not toss my son up in the air and rough play the same way his dad could.  I failed at almost every attempt and began feeling silly trying.

Then, I realized, I did not have to be his dad.  I was his mom.  He knew that and so did I.  Eventually, I quit the notion that I had to be someone I was not.  If time with mom meant more movies, more time shopping for groceries, or doing endless errands, that was okay.  In the time we were together, he received from me only the love I knew how to give, naturally, and the attention I could give him in my own way. 

I recall a male client telling me that he felt overwhelmed when his daughters were around.  He could not do their hair in the mornings before school, and they complained about how he dressed them.  He did not see himself as a great cook and was constantly comparing himself to their mom. By letting go of the notion that there was any standard in which he needed to measure up to, he was able to be a better parent.

You children will forgive your ‘inadequacies’ and in time, will appreciate your uniqueness.  Essentially, understand who you are and your role as an individual parent and only fulfill that role, to the best of your ability.  That is success.