What Should be in an Agreement

The good thing about agreements is that they can contain whatever terms the parties agree on. Each party may have a draft of what they want. Once these are shared and discussions have taken place, one or both parties can write up a draft of what they have agreed on. This draft can be used as a basis for further negotiation. It can also be used even when someone else, such as a lawyer, is going to write the final agreement since it will have all the information about decisions the parties have made in it. When parties are trying to put their decisions about resolving their issues into the form of an agreement it is helpful to have a place to start.

This site, Family Law Saskatchewan, has a tool to help people who do not have a legal background create a family law agreement. To access this tool you simply select the 'create an account' option on the homepage. The creator of the tool, PLEA, is a non-profit, non-government organization. All PLEA resources and services are free-of-charge. The Agreement Maker has a number of features including:

• Saskatchewan-specific plain-language legal information integrated into each step.
• Users select issues they want to deal with from a wide-range of options.
• Provides the flexibility for users to write their own clauses but also provides extensive options for users to choose from if they need guidance.
• Alerts users to issues they may want to deal with but also allows users to choose not to cover these issues in their agreement.
• Creates an easily editable Word document for users to further refine if they choose.
• Includes an easy-to-understand explanation about next steps including signing and witnessing requirements, when legal advice is required, and options for using the agreement to ask for consent orders.

The Family Law Information Centre, part of the Saskatchewan Ministry of Justice, also has a self-help kit that parties can use as a guide to creating an agreement.

The following information should be included in all agreements:

• full legal names of both parties
• addresses of both parties
• date the parties were married or began living together as spouses (if applicable)
• date of separation (if applicable)
• date of the agreement
• signature of both parties

If the agreement deals with child support the following information is required:

• full legal names and birth dates of the children covered by the agreement
• where the children live most of the time (i.e. with one party or shared between parties)
• gross annual income of the party paying support
• gross annual income of the party receiving support
• whether support is in the Table amount or not and, if not, why
• details regarding any special or extraordinary expenses:
  • what the expense is for (e.g dance lessons, childcare, etc.)
  • percentage of the cost to be paid by each party and the dollar amount
• when payment starts
• when payment ends (if applicable)
• frequency of payment

If the agreement deals with spousal support include the following additional information:

• which party is paying support and which party is receiving support
• amount of support
• when support commences
• when support ends (if applicable)
• frequency of payments (monthly, weekly, etc.)
• other terms regarding disclosing changes in income (e.g. annual exchange of Income Tax Returns) and managing payments (e.g. post-dated cheques, etc.)

If the agreement deals with parenting include the details of the parenting arrangement. See Parenting Plans for more information.

If the agreement deals with family property it will only be presumed to be enforceable if specific requirements are met. Each party must have independent legal advice and the agreement must:

• state that it is an interspousal contract under The Family Property Act
• be in writing
• be signed by each party in the presence of a witness who is at least 18 years of age
• include an acknowledgement made in writing by each party, in front of their own lawyer without the other party being present, that they…
  • are aware of the nature and effect of the contract
  • are aware of possible future claims they may have under The Family Property Act
  • intend to give up those claims to the extent required to give effect to the contract

Family property agreements that do not meet these requirements can still be considered by the court but the court will determine how much weight to give the agreement based on the circumstances.