– By Ira Tee, Associate Lawyer

Attempting to settle all legal issues from the breakdown of a relationship out of court can be a difficult thing to do, especially when parties do not often see eye-to-eye. Proposing a settlement in the form a separation agreement before formally starting proceedings in court is a common way to settle matters without extensive and expensive litigation.

At any time after a separation, either party may draft and propose they settle matters through a separation agreement. If both parties are driven to settle out of court, there may be several revisions of the separation agreement before it is executed.

If parties cannot agree to anything in a separation agreement, either party may still file a claim in Provincial or Supreme Court. Filing a claim while in the midst of negotiating a separation agreement is permitted. If the parties execute a separation agreement after a party files a claim, the agreement can then be filed in Court and it can be enforced as if it was an order of the court. Filing a claim does not bar the parties from executing a separation agreement. If the parties cannot execute a separation agreement, then the proceedings in court have already been initiated and the matter can proceed normally through the court system.

A spouse may think that filing a claim means no negotiations outside of court can happen afterward. This is untrue and in fact, filing a claim may encourage parties to come to a settlement without the need for a trial.

A spouse may also think that a judge will think negatively of them because the proposed a separation agreement and then filed a claim anyway. This is untrue as negotiations regarding separation agreement are almost always “without prejudice” to the parties.

It may be beneficial to wait until parties are sure that a separation agreement cannot be entered into before filing a claim to avoid unnecessary court expenses. However, filing a claim even before beginning negotiations may be necessary, including in situations where a separation has been high conflict, where there are family violence concerns, or there are concerns about financial disclosure by one party.

There is no one “correct” route to settling issues in a family matter. Sometimes settlement occurs after trying more than one method, including proposing a separation agreement and mediation, and if all settlement discussions fail, the parties can look to the courts for orders.

 

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