What happens after you retain a family law lawyer?
Well that depends on a large number of factors. Some factors include, the complexity of your case, urgency of matters you presented to the lawyer you consulted with, the style of practice of the lawyer you consulted with. Some other factors are the number of disputed issues, your relationship with your spouse or separated spouse and whether there is a possibility of resolving matters amicably, the reasonableness of your expectations about how you wish to resolve the various potentially disputed issues in your case, and of course any strategic decision made by your lawyer on how to move the file forward.
In cases where family law issues are not urgent, and there is a possibility of an amicable resolution, a retained family law lawyer will work towards the preparation of a separation agreement setting out the parties’ rights and obligations to one another post separation. Generally, an initial letter will be prepared by counsel to an opposing party asking them to retain counsel and to commence communication related to an amicable resolution. The goal is to come up with a mutually agreed to separation agreement. Once both parties have counsel, the lawyers will assist parties in the exchange of full financial disclosure. Full financial disclosure is essential to an accurately drafted and enforceable separation agreement under Ontario law. Depending on the complexity of the case, the disclosure exchange may be basic or complex, involving valuations of businesses and other assets.
Once financial disclosure is exchanged by the parties, discussions and negotiations can begin and disputed issues can be identified. Generally at this time, the parties exchange their positions on the various issues and communications in writing are exchanged between counsel in attempts to negotiate resolve disputed issues. Once all terms of the agreement are agreed to through counsel, one party’s counsel will prepare a draft agreement for the other’s review and comment. At this stage there will be some back and forth between counsel to tweak the wording of the separation agreement to counsel’s satisfaction based on the instructions of each party and agreements reached.
Assuming this is an amicable discussion and resolution of all outstanding issues, once the final draft of a separation agreement is agreed to by counsel, each lawyer will review the separation agreement again with their client from top to bottom with their client and give final advice on each negotiated and agreed to issue and will continue to provide independent legal advice before the agreement is signed by each party. Once counsel is satisfied that the client understands nature of the agreement, is willing to enter into it voluntarily and without any undue influence or duress, the agreement can be signed in front of that lawyer and the lawyer will prepare and provide a Certificate of Independent Legal Advice certifying that the agreement was fully explained and that the client entered into it voluntarily.
Generally speaking any separation agreement entered into without financial disclosure or without accurate financial disclosure, and / or without independent legal advice carries the risk of being set aside in the future by a court and may not be enforceable.
If issues are disputed and a separation agreement cannot be entered into on all issues, the disputed issues can either be litigated in Court or the parties can attend mediation and arbitration on the issues.
It is very important for both parties to have counsel in drafting and entering into any separation agreement in Ontario. The law is complex and there are very important requirements to meet in order for your agreement to be enforceable. Call our office today to speak with one of our experienced Toronto Family Lawyers to learn about your rights and obligations.
