Four Reasons Why BC’s New Family Law Act is Good for Fathers

Jun

Four Reasons Why BC’s New Family Law Act is Good for Fathers

Posted June 25, 2012 by Georgialee Lang in Divorce, Family Law. Tagged: access, contact, custody, denial of access, Family Law Act, Family Relations Act, Parenting Coordinators, parenting time. 5 Comments

British Columbia’s new family laws will be in effect on March 13, 2013. For husbands and fathers who have felt victimized and exploited by the Family Relations Act 1979, there is every reason to be optimistic that the new law will assist them to achieve the fairness and equality they have been fighting for.
The first bit of good news is that effective March 13, 2012 the new law will apply to everyone, even if they commenced a family law proceeding under the current Family Relations Act that has not yet been concluded, with one exception. Property claims made under the old Act will be governed by that legislation, unless both parties agree that the new law should be applied.
The changes in law that will assist fathers include:
1. Pejorative terminology is removed:
The language of “custody” and “access” used in the current legislation left many parents feeling marginalized and overlooked as fully contributing parents who provided value to their children’s lives. These terms also connoted an “I win, you lose” philosophy. The language of the new Family Law Act is “parenting time” and “contact”, words that do not imply ownership of children by one parent to the exclusion of the other.
2. Endless court applications regarding children can be avoided:
For fathers who are constantly struggling to see their children regularly, or have a vacation with their child, or obtain their child’s passport for travel, or the dozens of other irritants that require fathers to go back to court, the new law has introduced and codified the role of a Parenting Coordinator. This person, who may be a counselor or a lawyer, will be empowered under the law to make binding decisions with regards to parenting issues, with the criteria being “the best interests of the child only”.
3. Informal parenting arrangements will be respected:
In scenarios where a father and mother have recently separated and have worked out a voluntary parenting plan, one parent cannot unilaterally change the plan. What often occurs is the parties will agree to a particular schedule, but when mom learns about dad’s new girlfriend, or is angry over some event involving dad, it is not uncommon for mother to unilaterally impede the regularly scheduled parenting time of the father. This new law forbids this kind of unilateral action.
4. Denial of parenting time will be treated seriously:
One of the most common complaints from fathers in high conflict marriage breakdown is the capricious, unreasonable denial of parenting time as punishment for the parties’ separation, even when the separation was requested by the mother.
The new law recognizes the importance of a father’s time with his children and will take serious steps to enforce parenting time. The key is that a father must complain to the court within 12 months of the access denial. In those circumstances the court may order compensatory parenting time to make up for the time denied. The court can also order a denying parent to go to counseling, pay a $5000.00 fine or reimburse the father for all of his expenses including travel expenses, lost wages and child care expenses incurred as a result of the refusal to comply with the informal parenting arrangement or the terms of any agreement or court order.
In my view the government has enacted new law that is meant to assist parents who do not want to be excised from their children’s lives. The important matter now is that the public be educated as to the upcoming changes so they can improve their relationships with their children.
A final note: there are many mothers who do not conduct themselves in ways described above, but when they do the emotional and financial damage to the family is devastating and destructive, both for the parents and the children.
Lawdiva aka Georgialee Lang

5 Of the Dirtiest Divorce tricks

5 of the dirtiest divorce tricks  

Posted October 29, 2011 by LawDiva in Divorce, Family Law. Tagged: child support, dirty divorce tricks, father's access, spousal support. 7 Comments

Some divorcing spouses treat each other deplorably. In these sad cases, it is actually hard to believe they were once in love. Candour and kindness are replaced by artifice and cruelty. Divorce lawyers are well aware of the grab bag of dirty tricks spouses inflict on each other. My top five dirtiest divorce tricks are:
1. Conflicting Out All of the Top Divorce Lawyers
An age-old practice for a spouse who expects a long, drawn out divorce battle is to ensure their estranged partner can’t retain a top divorce lawyer. It goes like this – husband or wife makes appointments with the top lawyers in the area. At each meeting they reveal enough about their situation that the top lawyer, who they have no real intention of retaining, cannot act for their spouse. If each top lawyer charges them $500.00 for a one hour consultation, they only spend a few thousand dollars to ensure they have defanged their spouse by preventing him or her from hiring a “gun” equivalent to their top-tier counsel. Yes, this happens in the world of high net worth divorce.
2. Firing Your Lawyer Just Before Trial
Another effective divorce trick is to fire your lawyer weeks before your divorce trial is set to commence. How does this work? It’s easy. Let’s say you are the wife of a wealthy husband. Since you obtained a court order ejecting your husband from the family home, you now reside in luxury with peace and quiet; you are receiving thousands of dollars a month in tax-free child and spousal support; and your life consists of tennis lessons, lunch with the girls at the Club and evening soirees. Meanwhile your husband is doing what he always does: travelling around the world doing business deals to support your mutual lifestyles. He doesn’t even see the kids much, so there’s no hassles at all.
Why would you spoil all this by taking a chance that a judge may eliminate some part of your lavish lifestyle or impose an access schedule for the children to see their father that may interfere with your plans?
3. Transferring Your Assets Off-Shore
While you may live a life of champagne and caviar, it is unlikely you can maintain that level of opulence if your spouse has arranged to stash all his liquid assets off-shore in trusts set up in any number of tax havens such as the Bahamas, the Isle of Man, Turks and Caicos or Switzerland.
In many jurisdictions a Court may make an order that off-shore assets be divided between the spouses, but just wait until you see how difficult it is for you to convince the foreign jurisdiction they must obey the order of a North American Court. All I can say is good luck!
4. Arranging Multiple Mortgages on Your Real Estate
It is not uncommon to see marriages where the “little lady” has no idea of what she and her husband are really worth. Imagine a spouse’s disappointment when their lawyer informs them that the family home and their summer cottage are mortgaged to the hilt and have little or no equity. Their once middle-class standard of living evaporates as Mrs. now looks for a basement suite to house her and her two children.
Another real estate divorce trick is to build a lavish home on leased land that is situated on property that is in the agricultural land reserve, so that while it may have cost $3 million to build, it has no real market value since nobody in their right mind would purchase this property. Yes, this is a true story.
5. Building a House of Cards
For a time life is grand, but inevitably problems arise in your marriage. In an effort to please your spouse you try you to spend your way back to the marriage you once had. Little does your spouse know that the trips to Europe, Hawaii and the Super Bowl were leveraged, courtesy of American Express or Visa. The marriage does not survive and you discover your net worth is much less than you expected as you have tens of thousands of dollars in credit card debt all used for the family. Let’s just hope the Sistine Chapel was worth it.
Perhaps you think that with the explosion of mediation and collaborative divorce, these tricks have lost their lustre? Think again. For spouses who need revenge more than they need closure, they are alive and well.
Lawdiva aka Georgialee Lang

Divorcing Couple Ordered to Exchange Social Media Passwords

Nov

Divorcing Couple Ordered to Exchange Social Media Passwords

Posted November 12, 2011 by LawDiva in Divorce, Family Law. Tagged: Courtney Gallion, Facebook, Judge Kenneth Schluger, Linkedin, MySpace, social media, Stephen Gallion, Twitter. 2 Comments

By now everyone should know that Facebook, Twitter, LinkedIn, etc. can provide fertile ground for discovering information about your neighbour, your kids and most importantly, your ex-wife. Recently Judge Kenneth Schluger ordered a divorcing Connecticut couple, Stephen and Courtney Gallion, to exchange their Facebook and dating website passwords.
It seems that Mr. Gallion found some incriminating information about his wife while surfing the web on the computer he shared with her. Courtney Gallion had posted comments about their children and her feelings about their role in her life that her husband thought might be useful for him in his goal to obtain custody of their children.
During a deposition of Ms. Gallion, her husband’s lawyer asked her to provide passwords for her Facebook account and two dating sites she had joined: EHarmony and Match. Her lawyer initially refused to reveal the passwords but later relented.
Upon releasing the passwords, Ms. Gallion texted a close friend and asked her to change the passwords and delete some messages she had posted. That’s when the matter came before Judge Schluger as Mr. Gallion sought to prevent his wife from deleting messages and asked the judge to order the exchange of passwords.
The Court made the orders sought and directed that neither of the parties could visit the websites of the other and post messages purporting to be the other.
But it is not just divorce cases where social media can play an evidentiary role. In a case in Pennsylvania a professional racecar driver sued the owner of a motor speedway for injuries suffered during a race.
The Court ordered the plaintiff to provide his Facebook and MySpace passwords which revealed photos of a fishing trip and a jaunt to the Daytona 500 which undermined the plaintiff’s assertions of physical injury. (McMillan v. Hummingway Speedway #113-2010 CD, Pennsylvania, Sept. 9, 2010)
In another case the Court became a “friend” of the litigant so the Judge could personally review the Facebook postings, looking for relevant evidence in another personal injury case. (Offenback v. Bowman 10- CV 1789 Pennsylvania October 2011).
So, what happened to privacy? It appears that litigation trumps any expectation of privacy in our new world of social media.
Lawdiva aka Georgialee Lang

Another good post

Here is another good post from one of my favorite bloggers, Check it out...



Sep

Even Divorce Lawyers Can’t Afford a Divorce Lawyer

Posted September 8, 2011 by LawDiva in Divorce, Family Law, Judges, Lawyers. Tagged: Family Court, in-person litigants, lay litigants, Queen's Bench, self-represented litigants, Supreme Court. 4 Comments


It should come as no surprise to anyone that most Canadians cannot afford a lawyer. In fact, lawyers often joke that if they had to pay a lawyer, they too couldn’t afford it. Nowhere is this dilemma more obvious than in family courts.

It is now commonplace to see self-represented litigants dueling with lawyers in most of our family courts in Canada. In British Columbia a parent or spouse can apply for custody and child and spousal support in the Provincial Court, which is purposely “user-friendly”. The Provincial Family Courts across Canada have successfully implemented reforms including plain-language court documents that are readily decipherable by lay litigants. The judges in Provincial Court are accustomed to hearing cases without lawyers and graciously assist those who act for themselves.

However, to obtain a divorce or property division, the only venue is each province’s Supreme Court, sometimes called “Queen’s Bench”, a most inhospitable environment for in-person litigants.

In a 2011 survey of Ontario divorce lawyers, conducted by Professor Nick Bala of Queen’s University Law School, he found that 48% of 167 responding lawyers indicated they were seeing many cases with at least one lay litigant and more cases where at some point in the litigation, neither party had counsel.

As family law becomes increasingly more complicated, despite the Canadian government’s sensible introduction of both Child Support Guidelines in 1997 and Spousal Support Advisory Guidelines in 2006, there are minefields enough for lawyers, never mind those who are forced to act as their own lawyer.

Will a lay litigant understand that in calculating their income for the payment of child support they must consider and understand complex nuances such as the possibility of the exclusion of non-recurring income; the need to include all of their capital gains income in their calculation and not just the portion they see on page two of their tax return; and their ability to deduct business expenses, union or professional dues and carrying costs? I doubt it. Not all lawyers have figured it out yet!

But affordability is not the only reason litigants refuse to retain counsel. There is another group of litigants who believe they can handle their divorce case just as well as a lawyer can. This smaller segment often become serial litigators who, because it costs them nothing, bring multiple frivolous applications, although some would say that lawyers do the same thing! Often when offered pro bono counsel, they decline.

Problems abound for all involved in the family justice system in the wake of the impact of lay litigants. Judges who must ensure that justice is both done, and seen to be done, are at the centre of the dilemma. If they provide too much help for an in-person litigant, that litigant’s spouse will see it as an unfair advantage and often, the court Rules that govern court procedures are less stringently enforced when it comes to litigants with no lawyer.

As well, litigants that pay for their own lawyer often become disenchanted with their counsel when they see their lawyer “helping” their estranged spouse who has no counsel. Lawyers are bound to treat participants in the justice system with courtesy and respect, traits that are frequently misconceived as their lawyer being “too friendly” with their opponent. Fee-paying litigants resent their lawyer telling their spouse what the law is or how the court process works.

For lawyers the problems are multiplied. They must walk a fine line in dealing with an unrepresented spouse and must ensure that all communication with an in-person litigant is documented in writing, with no exceptions. Of course, their clients are even more unhappy since it is their clients who pay the bills for the extra time and effort required to work with a lay litigant.

Lay litigants have also been known to send abusive communication to their spouse’s lawyer and from time to time, report their spouse’s lawyer to the Law Society, a complaint which can cost a lawyer hours of wasted time to respond to the often ill-founded allegations.

Is there a cure? They say that recognizing a problem is the first step to solving it. Certainly,the issue can no longer be avoided. It has taken centre stage as a result of lawyers, judges, court administrators, law professors,lawmakers, and the Canadian public decrying the slow demise of Canada’s family justice system.

Lawdiva aka Georgialee Lang

Spousal Support in Canada

Aug

Family Law’s Crapshoot: Is Canada Ready for Spousal Support Reform?

Posted August 20, 2011 by LawDiva in Divorce, Family Law. 2 Comments


Family law lawyers across Canada will tell you that the payment of spousal support or alimony (as it was once called) is still the most difficult issue to resolve between spouses.

Up until 2006 spousal support awards were notoriously inconsistent. The outcome of a spousal support case depended on what day it was heard, what judge heard the case, and who counsel were on the case. It was family law’s crapshoot.

In 2006 Canada’s Spousal Support Advisory Guidelines (www.justice.gc.ca) were released, after the federal government empowered leading family law professors Carol Rogerson and Rollie Thompson to analyze and assess the nuances of spousal support and provide recommendations and guidelines that would help lawyers and judges determine who was entitled to support, how much should be paid and for how long it should be paid.

Today these Guidelines have the force of law, even though our legislators have never passed the Guidelines into law.

A calculation of spousal support under the Guidelines is based on the payor’s gross income (usually the husband) and the wife’s gross income, including common law spouses in most Provinces.

The general rule is that spouses who are entitled to support will receive it for a minimum of one half the length of the marriage and cohabitation and a maximum of all the years of the marriage or cohabitation.

So, if you were married or cohabited for ten years, you would receive support for a minimum of five years and a maximum of ten years. Herein lies one of the resolution dilemmas. Of course, husbands only want to pay for five years, while wives demand ten years of support.

The reality is, however, that judges in Canada are reluctant to make support orders that terminate on a fixed date, and routinely order that spousal support be “reviewed”, even though the Supreme Court of Canada in Leskun v. Leskun 2006 SCC 25 (www.scc.lexum.org) criticized the use of review orders.

A review of spousal support is an expensive process that entitles the recipient spouse to take a second crack at an indefinite spousal support order, as entitlement to support, amount of support and duration of support, are all up for grabs again.

For marriages twenty years or more, support is paid indefinitely, subject to a “material change in circumstances”, a legal test that rarely releases payor spouses from their support obligations.

Are Canadians supportive of the current alimony laws? While men’s rights groups criticize laws they say are unfair or prejudicial to them, the groundswell for the reform of alimony laws that is emerging in the United States has not yet crossed the border into Canada.

Most noteworthy are the reforms passed by the State of Massachusetts last month in their new Alimony Reform Act of 2011, (www.massalimonyreform.org) heralded as the end of lifetime alimony in that state. Should Canada’s spousal support laws also be amended to promote independence after divorce and fairness for both spouses?

In Massachusetts’ groundbreaking new law, the following reforms have been passed by the House and the Senate:

1. Spouses shall only receive support for 60% of the number of months of marriage. In Canada a spouse will be supported for between 50% and 100% of the months of marriage or cohabitation with many support orders being of an indefinite duration.

2. For marriages between ten and fifteen years, the maximum term for support is 70% of the months of marriage and for marriages between fifteen years and twenty years, the maximum length for alimony is 80%of the months of marriage. In Canada a marriage in excess of twenty years results in an “indefinite” award of support, a more polite term for “permanent” support.

3. A second wife’s income and assets are excluded. Frequently Canadian courts allow evidence of a new partner’s financial circumstances, particularly where the payor spouse’s income has been reduced.

4. Cohabitation with a new partner for a continuous period of three months suspends, reduces or terminates alimony. In Canada cohabitation will only result in a change in support payment if the recipient spouse lives with a wealthy partner who fully supports him/her. Try proving that.

5. For the purposes of an alimony order, the court shall exclude from its income calculation gross income the court has already considered for setting a child support order. In Canada child support is calculated first, and the amount of child support ordered can result in a decreased amount of spousal support, subject to an increase when the child support has decreased or terminated.

6. Alimony should not exceed the recipient’s need or 30% to 35% of the difference between the parties gross incomes. Canadian courts consider “need” but favour an equalization of income between spouses that reflects the marital standard of living.

7. A second job or overtime income shall be excluded from the income calculation where the spouse works more than a single full-time equivalent position or the second job or overtime commenced after the initial spousal support order. Canadian payors must pay support on all income, including, in some instances, pension income that has already been divided between the spouses.

8. A payor spouse’s payment of health insurance or life insurance for a recipient spouse shall reduce the payor’s support payments. These payments are rarely taken into account by Canadian courts.

9. Alimony extensions are limited and require clear and convincing evidence. Extensions of spousal support are the norm in Canada.

10. Alimony ends with the remarriage of the recipient. Not in Canada. A payor spouse has the onus of proving to the court that a recipient spouse no longer needs support.

Will there be a grassroots movement in Canada to rethink spousal support in light of the reforms south of the border? I think it’s inevitable. Laws that are paternalistic and punitive have no place in modern Canadian society, however, stay-at-home moms must maintain their elevated position, even in the face of spousal support reforms.

Lawdiva aka Georgialee Lang