Updated February 2018
This How-To Brief outlines the steps to take when conducting a successful interview with a family law client who is giving instructions on the terms of a separation agreement.
1Prepare ahead for the interview
- Obtain and review a precedent separation agreement for relevant sections.
- Have the client complete the Client Information Form, if appropriate.
There are software programs that provide precedent separation agreements (e.g. DivorceMate). Always ensure that you are using a precedent that is up-to-date and can be customized to meet the needs of your client.
2The fact gathering stage
- Introduction / ask the client why he/she has come to see you/state your understanding of the nature of the problem.
- Listen to the client for his/her version of the issues ("active listening").
- Ask questions to fill in gaps and probe for further details.
- Impress upon the client the privileged and confidential nature of your discussions, and the requirement for full and frank disclosure.
3Confirm the information
- Repeat the information received from the client for clarity.
- Correct any misunderstandings.
4The advising stage
- Assist the client in focusing on interests (what the client needs) as opposed to positions (what the client wants).
- Provide the client with options.
- Advise the client of any available and relevant resources for children, mental health professionals, etc.
- Advise the client of any areas that require further research or information (e.g., legal, research, appraisal/valuation of assets or income).
5Confirm the options
- Confirm client's understanding of the options available.
6Seek and confirm the retainer and client instructions
- Ensure that the client understands the scope of the retainer - provide retainer agreement to the client.
- Clarify and confirm the client's instructions.
7Identify the follow-up work
- Identify information or documents that the client may have to provide.
- Establish timelines for both you and the client.
8Translate the information into a separation agreement
- Clear drafting is crucial.
- Review a precedent separation agreement and remove any clause(s) that is/are not relevant.
- Customize the separation agreement to fit the circumstances of your case.
- Consult an expert in areas that are beyond your expertise (e.g., taxation).
9Specific areas of the separation agreement
Depending on the nature of the case, some of the following provisions may be relevant for inclusion into the agreement.
- Language of agreement - are terms for custody and access necessary? If so, are terms specific?
- Duty to consult, access to information
- Name change - not without consent
- Rights and responsibilities: health, education, religion, major extra-curricular activities
- Mobility issues
- Variation of agreement and other problems that may arise
- Resolution methods: mediation, arbitration, court, parenting coordination
- quantum - review of Child Support Guidelines (see in the Resources section of this How-To Brief)
- termination of support: specific age/stage
- treatment of third party payments, impact of the Child Support Guidelines
- special expenses: (s. 7 of Child Support Guidelines) camp, university (tuition, books, etc.), private school, extraordinary expenses for extra-curricular activities
- annual Child Support Guidelines income information exchange, review and adjustment
- security - life insurance (whole or term - quantum to secure support) or other
- medical and dental insurance coverage
- quantum - review of Spousal Support Advisory Guidelines (see the Resources section of this How-To Brief), also other software-driven support calculations (e.g., SupportMate)
- time limited/termination of support
- terminating events
- cost of living adjustment
- compensatory support: periodic or lump sum
- lump sum payment to satisfy support obligations
- tax treatment: third-party payments taxable or not
- security - life insurance (whole or term, quantum to secure support) or other
- medical and dental insurance coverage
- Calculation of net family property
- Transfers of property (consider tax implications)
- RRSPs: special rules and wording for tax-free rollover of funds
- Pensions: valuations (issues of "if and when" at source division under s. 101 of the Family Law Act)
- Business issues: transfers of shares, resignations as officer and director
- Canada Pension Plan credits
- Valuation of property(ies)
- Capital property - rollover at Adjusted Cost Base or market value
- Capital gains and other tax consequences
- Notional costs of disposition
- Obtaining the divorce
- Religious considerations
- Independent legal advice
- Financial disclosure
- Enforceability of agreement
10The follow-up work
- Once agreement has been signed, ensure all follow-up steps have been taken (e.g., transfer of property, life insurance policy provided with proof of beneficiary).
- Twist, Helena, Effective Interviewing (Professional Skills for Lawyers) (Oxford University Press, 1991)
- Sherr, Avrom, Client Care for Lawyers 2d. ed. (London: Sweet & Maxwell, 1999)
Statutes and Rules