Yeah But
Wednesday, November 21, 2007 at 00:00
By Marcel Strigberger
Yeah But. There have been a couple of cases recently where wives whose time limited support ran out years ago had new life breathed into their settlements thereby reviving their support rights, at least on an interim basis. On an interim basis to start.
The routine in these and similar previous cases where the book looked shut is that the wife has found able counsel who has the confidence in the face of a that's it settlement to come to court and say, "Yeah but". And to date the courts have lent these lawyers an ear. A very favourable ear indeed.
The judges will usually say something like when the agreement was drawn up, such and such was not in the contemplation of the parties. Therefore this present situation is different and the courts have the right to revisit the whole situation in the interest of justice. The recipient's justice. I can just see the scene in the office of the lawyer who drew up the "support is over" agreement, when the payer arrives there after being told of the court's decision: "But you said if I pay her $1000 per month for 3 years and give her the house that would be a final deal. What do you mean it's not final....?"
So what is one to do to attempt to maintain closure on what one expects to be a done deal? I have devised the following clause to be inserted into all separation agreements or minutes of settlement when acting for the payer of spousal support, usually the husband. This would simply have to work.
I believe this clause should do it.
DISCLAIMER: Use this clause with caution. The author does not warrant results, especially in the face of unexpected trilogies.
Yeah But. There have been a couple of cases recently where wives whose time limited support ran out years ago had new life breathed into their settlements thereby reviving their support rights, at least on an interim basis. On an interim basis to start.
The routine in these and similar previous cases where the book looked shut is that the wife has found able counsel who has the confidence in the face of a that's it settlement to come to court and say, "Yeah but". And to date the courts have lent these lawyers an ear. A very favourable ear indeed.
The judges will usually say something like when the agreement was drawn up, such and such was not in the contemplation of the parties. Therefore this present situation is different and the courts have the right to revisit the whole situation in the interest of justice. The recipient's justice. I can just see the scene in the office of the lawyer who drew up the "support is over" agreement, when the payer arrives there after being told of the court's decision: "But you said if I pay her $1000 per month for 3 years and give her the house that would be a final deal. What do you mean it's not final....?"
So what is one to do to attempt to maintain closure on what one expects to be a done deal? I have devised the following clause to be inserted into all separation agreements or minutes of settlement when acting for the payer of spousal support, usually the husband. This would simply have to work.
SPOUSAL SUPPORT d) no variation clause. The aforementioned spousal support does terminate after two years. Now of course the wife may want to come back to the court holding a bowl and saying, "I should like some more money please". The answer then will be No. It will be no way Jose....niet, non, nein, final answer no...And the wife shall be estopped from asking for more no matter what the circumstances might be...Oh yes, she might try to say, "Hey, I did not expect this or that to happen...like losing all my money on the stock market, like getting ill and being unable to work or like my husband winning 10 million dollars on the Lotto 649 while I earn $6.49 an hour working at the counter at the local Seven Eleven. This will not matter...Even if you take all the unexpected knocks of life you can think of, like we can't even think about them right now because they are so unexpected, then these events are hereby deemed to be expected and in the contemplation of the parties. And double that last sentence. In spades. And the wife of course may want to rely on some trilogy of Supreme Court of Canada cases. There is always some trilogy. Forget it. All trilogies are hereby irrelevant, inapplicable and out the window. And this clause may be pleaded against the wife should she try to raise any trilogy in the future. And of course the Divorce Act will likely change. As will the Family Law Act. There may even be a statue entitled, "A Law to Eradicate and Stomp over all Spousal Support Settlements and Make the Men pay again Act." In this event this clause will prevail and may be pleaded by the husband. And the wife of course acknowledges that this weird act should it ever come about, will be within her contemplation as a distinct possibility, as sure as fish swim and birds fly. And should that act provide that it supersedes any agreement to pay or not pay support, then the wife shall be deemed to be earning more income than the husband and thereby not requiring spousal support. Whatever the wife does earn will be deemed to be multiplied tenfold. Should the wife persist in trying to open up the spousal support issue then it shall be open to the husband to claim spousal support for himself. The intent of this clause is to end spousal support to the wife finally and once and for all. The existence of spousal support is to include but not be limited to the following sentiments: It is to be history, toast, water under the bridge, finito, cut, over, caput, undone, like the dodo bird, at the end of the line, dead like that parrot in Monty Python, expired, goodnight Irene, it ain't over til it's over...well it's over, deep sixed, lies with the fish, and generally non existent. |
DISCLAIMER: Use this clause with caution. The author does not warrant results, especially in the face of unexpected trilogies.
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© 2007 Marcel Strigberger. This article CANNOT be copied or reproduced in any way without the expressed written consent of the Author.
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