A fresh perspective on divorce, spousal support, child support, parenting after separation and everything family law

Divorce: why don’t my papers look like Kobe Bryant’s?

Q: What are my divorce documents going to look like?  Why do they look nothing like the documents I see online or on TV?

A: Recently, copies of celebrity divorce documents have showed up on the internet for anyone to view. For example, Kobe Bryant’s wife filed for divorce and the papers were published on popular websites for the public to view.

The reason that the documents look different from that of Kobe Bryant or Arnold Shwarzenegger is because divorce documents look different in each jurisdiction.

Why didn't I get served with something that looks more like this???

In British Columbia, a claim for divorce (formally called a Notice of Family Claim) generally looks like this .  It will be filled out by either you or your lawyer and customized to meet your personal circumstances.

Q: Do I have to worry that everyone can see my divorce documents on TMZ.com…or CNN?

Generally, no.  In British Columbia only certain people can access divorce documents.  It is set out in the Supreme Court Family Rules (Rule 22-8) that only certain people can search a registry file in British Columbia unless the court orders otherwise – the parties, a person authorized by a party or party’s lawyer or a lawyer.

However, the fact that the court does not release your documents to the general public does not preclude your ex-spouse (or soon to be ex-spouse) from sharing them.   It is best to keep your court documents private and only disclose documents if your lawyer advises you to.

In certain jurisdictions, such as in Alberta, anyone can access a family law file if they make the appropriate request to the courts.  Again, it is important to note that things will be different in each province and country so what may be the case for you in British Columbia might not be the same for your sister in Alberta or your uncle in California.

Also, it is important to note court proceedings  are generally open to the public in British Columbia and court decisions are available online.

Provincial Court of British Columbia: how do you divide the dog?

When parties separate, who gets to keep the family pet?  I know in my family, if things take a turn, a live issue will be who gets to keep Darryl Murray, the red standard poodle.

"Who wouldn't want to celebrate Christmas with me?"

In a decision of the British Columbia Provincial Court, the Honourable Judge S.D. Frame considerd a claim made by a man who wanted the court to make a declaration of ownership in a boarder collie named Laddie.  The man also sought specified access with the collie.

The Court held that the man did not have an ownership interest in Laddie:

By anthropomorphizing this dog, Ms. MacDonald led Mr. Kitchen to, and Mr. Kitchen allowed himself to be possessed of an expectation that, the dog was “the child” of both of them.  This, however, despite the sentimental aspects, does not create a beneficial or legal interest in a dog.

The Vancouver Sun ran an article on Sunday about this case and notes the Ontario Superior Court of Justice case of Warnica v. Gering (metioned in Judge Frame’s decision).  In that case, the court dismisses a custody claim for a dog, finding that the court should not make custody orders for pets, despite pets being important to people’s lives:

Whether in the Family Court or otherwise, I do not believe that any court should be in the business of making custody orders for pets, disguised or otherwise. To the extent that any of my colleagues may feel otherwise, I respectfully disagree. Obviously, I acknowledge that pets are of great importance to human beings. Strong bonds develop between them and the human beings that look after them. To some people, the relationship with their pets takes on a significance exceeding that of any other. They go to extraordinary lengths to preserve that relationship; even at a cost that some would say is disproportionate. Some may consider them to be children; however, they are not children.

In the Alberta case of Boschee v. Duncana wife claimed $200 per month to support her husband’s St. Bernard dog (in addition to claiming $1500.00 per month in spousal support). The wife argued that she required pet support to cover the veterinary costs and the costs of feeding and caring for the dog after her husband left the dog in her care. The court found that a St. Bernand dog costs more to maintain and feed than the usual smaller variety.   In that case, the court ruled that $200 per month was a reasonable sum to compensate the wife for the time and expense required to look after her husband’s dog and ordered him to pay this as a dog maintenance cost.

So who gets to keep the family pet? That should be up to you and your former partner to come to an agreement on – not for a court to decide.

Divorce Please: Department of Justice says no thank you

Recently a couple has been told they cannot get a divorce in Ontario…because they were never really married?

Two women, who regularly reside in Florida and England, were married in Ontario in 2005.    These women applied to the Ontario Court for a divorce.  A  legal argument filed by the Department of Justice  opposes the couple’s joint application for a divorce.  The Department of Justice argues that the couple cannot get divorced because the places they regularly live do not recognize their marriage as being valid – Florida and England are jurisdictions that do not recognize the validity of same sex marriage.

So what gives?  Is this a politically motivated interpretation of private international conflict law to advance an agenda?

While I feel the argument filed by the Department of Justice is a very strong application of conflict law, there are some valid reasons why a couple (same sex or different sex) might not be able to get a divorce in Canada if they are not resident in Canada (even if they were married in Canada).  For example:

  1. Provincial residency requirements in civil marriage acts can require that one spouse reside in a province for a certain amount of time before applying to that province for a divorce (as a note – I am not aware of a provision requiring you to live in a province for a certain amount of time before getting a marriage in that province); and
  2. Lex loci celebrationis (the Latin term forl aw of the place where the marriage is celebrated) vs. lex loci domicilli (law of the domicile). The rules for the essential validity of a marriage are governed by the laws of the pre-marital domicile and formal validity of the marriage are governed by the location of the celebration. These conflict of law rules apply equally to same sex and opposite sex couples;

Prime Minister Steven Harper has said that he is not re-opening the issue of same sex marriage that was resolved in 2004 by the Supreme Court of Canada’s decision (it was found that the federal government had the authority to amend the definition of marriage to allow all Canadians to marry.

Update January 13, 2012: a statement was issued by the Justice Minister, Rob Nicholson, clarifying that a legislative gap had caused the above noted confusion and that it will be closed:

…I want to make it clear that, in my government’s view, those marriages should be valid…

As reported in the Globe and Mail:

Mr. Nicholson blamed the former Liberal government for the problem, because, when it legalized same-sex marriage, it did not address the fact that the residency requirement was destined to leave thousands of couples unable to divorce. Former Liberal justice minister Irwin Cotler responded that it did not stick out as a serious potential problem.

 

Justice Harvey Brownstone: the perspective of Canada’s celebrity Judge

Over the holiday break I had a chance to get caught up on Justice Harvey Brownstone’s show, Family Matters with Justice Harvey Brownstone.

I have been following the work of Justice Harvey Brownstone for a few years.  He is a sitting Justice of the Ontario Provincial Court and has been creating excellent resources for Canadian families that incorporate his unique perspective into the information and advice he gives.

Currently the show, Family Matters with Justice Harvey Brownstone, is being broadcast weekly in British Columbia on Chek News and in Ontario on CHCH.

The show is a great resource aimed at providing legal information relating to family law and the Canadian justice system  in a unique and approachable way. As described on the Family Matters website the show is a:

TV program with a focus on a multiplicty of issues affecting contemporary North American life, with a particular emphasis on the interplay between relationships and the justice system: internet dating, addictions, prenups, mental health, adoption, surrogate parenting, same-sex relationships, multicultural relationships, parenting after separation and divorce, mediation, child neglect and abuse, child and spousal support – and this is just the tip of the iceberg! Hosted by an actual sitting Ontario family court judge, this exciting show is the first of its kind anywhere. Justice Brownstone provides educational episodes in an informative, compelling and entertaining talk show format, with guests who are experts in their field and who – until now – have never been accessible to the public.

I would suggest taking a look at Justice Harvey Brownstone’s Family Matters episodes that are currently being broadcast.  If you missed a 2010 episode, or want a quick reference to a specific topic, the episodes are available online (you have to purchase them).  Some of my favorite episodes are “View from the Bench” with retired Judge Michael Porter and “Marriage Confidential”.

There are some free resources you can access as well.  An interview with Justice Brownstone is available on YouTube (as seen above) and you can get Justice Harvey Brownstone’s book “Tug of War A Judge’s Verdict on Separation, Custoyd Battles, and the Bitter Realities of Family Court” at a local library  or buy it online.   This book has been reviewed in the media over the past year including: the Globe and Mail, the CBC, and many others.

Welcome 2012: changes to the child support tables

2012 is here and there are already changes you should know about in regard to calculating child support.

The Federal Child Support Guidelines have been amended as of December 31, 2011 for ongoing child support.  A summary of the changes and a useful question and answer can be found online.

The new tables can also be found on the Government of Canada’s website as well as a child support calculator.  In revisiting child support obligations and amounts it is also important to gather and exchange your 2011 income information as required by any agreemetns or court orders you have in place.