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

Divorce: whose fault? who cares?

A recent court decision in the United Kingdom commented on the fault-based divorce regime currently  in place (there are calls to bring an end to the fault based divorce system in the United Kingdom).  As reported in the Daily Mail:

Senior judges yesterday renewed calls for no-fault divorces, as they attacked current laws as vastly outdated.

At present, couples can be legally parted within six months if one party is shown to be at fault.

The most common grounds are unreasonable behaviour, which can include committing adultery or devoting too much time to one’s career.

Leading family court judge Sir Nicholas Wall said: ‘I am a strong believer in marriage. But I see no good arguments against no-fault divorce.’

In the United Kingdom you can get a divorce if your marriage has broken down irretrievably.  As summarized in a blog by Family Law in Partnership LLP:

 In order to prove that the marrigae has broken down irretrievably you have to prove that one of the following facts is true:

  • adultery by your spouse
  • unreasonable behaviour by your spouse
  • desertion by your spouse for a period of at least two years
  • two years’ separation, if you both agree to the divorce
  • five years’ separation, if there is no agreement to the divorce

The fault based system in the United Kingdom does not usually extend to impact the division of property, calculation of support or determination of custody (NOTE – I welcome comments from UK lawyers for clarification of this law or greater detail!).

But what about in Canada?

In Canada we have a “no fault” divorce system.

Under Section 8 of the Divorce Act, there are three grounds upon which you can apply for a divorce:

  • Your spouse committed adultery;
  • Your spouse was cruel to you; or
  • You and your spouse have been living “separate and apart” for a year.

Although there are two fault based options in Canada (adultery and cruelty) all you have to do to get a divorce in Canada is live separate and apart from your spouse for one year (you can even live “separate and apart” in the same house!).  Neither of the spouses has to do anything “wrong” in Canada to have a divorce finalized.

Most divorces, from my experience, proceed on the grounds of living separate and apart for a year.  It is often inconvenient to have an affidavit of adultery sworn by the person who committed the adultery.  Without an affidavit sworn by the adulterous spouse, admitting to the adultery, “the standard of proof in divorce actions is the same as in other civil actions, that is, the court must be satisfied on that the adultery has been committed, based on a preponderance of probability…” as stated in Adolph v. Adolph (1964), 51 W.W.R. 42.

For example, finding your spouses’ underwear somewhere they should not be is generally not going to be sufficient evidence to satisfy the court that a divorce should be granted  (in British Columbia, Addison could probably not get a divorce granted on giving evidence of what she found in her husband’s pocket) – she would need more evidence than JUST the underwear:

The “no fault” system in Canada means,  not only that neither spouse has to be “at fault” to process the divorce, it also means that if a spouse behaved poorly (for example they had a Tiger Woods “esque” series of relationships) it is not to prejudice them in the rest of the divorce proceedings (for example in determining custody, access, support or property division).

Spousal misconduct is specifically addressed in the Divorce Act. For example, the provisions of the Divorce Act state in Section 15.2(5):

In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of a spouse in relation to the marriage.

The Supreme Court of Canada Decision Leskun v. Leskun considered the conduct (infidelity) of a husband and how it impacted a wife’s ability to become self sufficient.  While the court found that “misconduct, as such, is off the table as a relevant consideration”, it also acknoweldged that there is a fine line between misconduct and the resulting impact of the misconduct:

There is, of course, a distinction between the emotional consequences of misconduct and the misconduct itself.  The consequences are not rendered irrelevant because of their genesis in the other spouse’s misconduct.  If, for example, spousal abuse triggered a depression so serious as to make a claimant spouse unemployable, the consequences of the misconduct would be highly relevant (as here) to the factors which must be considered in determining the right to support, its duration and its amount.  The policy of the 1985 Act however, is to focus on the consequences of the spousal misconduct not the attribution of fault.

The matter of conduct is a slipery slope.  For example, while you generally cannot be blamed for having an affair, your poor conduct or failure to tell the truth could be viewed by the court as indicative of your overall credibility.

 

Divorce: love mail to prevent seven year itch?

In 2011, more than 2.1 million couples got divorced across China, which is up by approximately 710,000 from 2007 according to a report in CHINADAILY.com.cm.

It is reported that China’s state run post is taking measures to curb the rising divorce rate by giving recently married couples the chance to send each other a sealed love letter – to be opened in seven years…around the time of the seven year itch.  According to the BBC:

The post office is hoping its scheme will stop some couples from reaching the divorce courts.

They are also producing special stamps, postcards and even a Love Passport which can be stamped on every anniversary.

The success of the scheme will not be known for another seven years, believes its creator, Sun Buxin, a manager of a Beijing post office branch.

Is love mail a good idea?  I think it would be fun to write a letter to your spouse at the time of your marriage, only to have your spouse open it seven years later.  However, the article goes on to raise a good point:

As for those who divorce during this period, they could be in for an unwelcome surprise.

“If couples don’t tell us to cancel the service,” said Mr Sun, “we’ll still deliver the letter”.

One example that comes to mind, is a spouse arguing his or her former spouse should go back to work after separation and not stay at home with the children, and thus spousal support should not be payable.  If you were the spouse seeking to reduce your spousal support obligations, you would not want a letter attached to an affidavit in a spousal support claim reading “I promise to take care of you, provide for you, and spoil you forever.  You will never have to work outside of the home for the rest of your life – you will stay at home and raise our six wonderful children.”

On another note, is 2.1 million divorces a lot?

China’s 2.1 million divorces reported in 2011 seems like quite a few.

In Canada, Statistics Canada reports that there were 70,226 divorces in 2008 (as a note, Statistics Canada stoppped collecting numbers on Canada’s annual marriage and divorce rates in 2011).

While it may appear that China has a very large number of divorces, but when you consider that China’s population as of December 31, 2011 was 1,347,350,000, the divorce rate is not actually that high. By way of comparison,  Canada’s population as of March 22, 2012 is 34,745,000.

Per capita, based on my general calculations, as supported by a self-labeled “outdated” article from Wikipedia, Canada’s divorce rate is twice that of China’s.

It is important to note that there are differences in calculating divorce rates around the world.

China’s method of calculating the divorce rate was revised in 2005:

For years, the country’s official divorce rate has been calculated on the basis of the number of people divorced, the China Daily newspaper reports.

Now Chinese statisticians have decided to follow the international practice of counting the number of actual divorces, and has seen its divorce rate cut in half.

The 2005 rate fell from 2.76 divorces per 1,000 people to 1.38.

NOTE – my calculations are in not to be relied upon or viewed as accurate … but you get the idea.

Family Law: book reviewed

LOTS has been written about divorcing, breaking up, recovering and moving on.

"But where does Liz Lemon go when she's out on the town? The Barnes and Noble bathroom!" ~ Liz Lemon

I often browse the divorce books in Chapters, with a Starbucks, after my Sunday run, and before I head into the office.  Not all that many (read: not any) people are browsing in the divorce/relationship section in Chapters on Sunday mornings so I usually have it to myself (I feel somewhat like Liz Lemon).

It all started a few years ago when I was living in Edmonton.  The Starbucks in Chapters on Whyte Ave. was my favorite place to stop on my way to work at McGlashan and Mackinnon.

One cold Sunday I stopped in Chapters on my walk to work to warm up (from what I remember it was -30 out…it was probably only -7 but it seemed VERY cold).  I was stalling and delaying getting back into the cold and I stopped to pick up the book Divorce Sucks by Mary Jo Eustace (who I remember from What’s for Dinner with Ken Kostick).  It was pretty funny – I read most of the book that Sunday.

More recently (I now go to the Douglas Street store in Victoria) I noticed a book worth mentioning: The Breakup Bible: The Smart Woman’s Guide to Healing from a Breakup or Divorce by Rachel A. Sussman.  A summary can be found in the February 2012 issue of Chatelaine.

I enjoyed the Breakup Bible – it had some good strategies for coping with the breakdown of a relationship and practical information.

One strategy the book mentions is journaling (at page 11):

Journaling is a useful tool following a breakup or a divorce and I strongly recommend it.  It allows you to track yourself and your relationship in a very meaningful way.  It will help create clarity and personal development.  It will improve your self-awareness and self-knowledge.  It will also reduce stress and obsessive thinking; the simple act of writing something down clears your head and reduces the tendency to fixate.

In regard to strategies for dealing with breakup and for moving on, it is important to think of the legal repercussions that some activities could have.

For example, a caution I have about journaling as a strategy for stress management is that if your journal entries are relevant and material to the matters in dispute in your family law proceeding (or any litigation for that matter), they could be used in court (and your former spouse could seek an order compelling you to produce your diary for use in court – even if you do not want to produce it).

In one case, the court considered entries in the diaries of both a husband and a wife.  When evaluating the content of the diaries for the purposes of the litigation, the court stated:

In my opinion diaries can be helpful tools if a person wishes to record the events of the day or week, and their feelings about those events, both positive and negative.  I accept that it can be therapeutic for a person to be recording their feelings about something for the purpose of sorting out those feelings and then putting them aside to move on, especially if these feelings are a source of frustration or anger or depression.

However, in my view, there is a fine line between using a diary to record feelings, both good and bad, for therapeutic reasons, and using a diary to record negative feelings as a method of dwelling on those feelings.  There is nothing therapeutic about using a diary to constantly lash out at your former spouse.

This is how I read the mother’s diary.  It contains an abundance of negative comments about her ex-husband.  It is completely unreliable as a record of current events and as a record of true statements that the children have made to her about their father.  It is not even chronological.  It appears to me that the mother probably sets aside a certain amount of time per day so that she can record in her diary all of the negative things that she can possibly say about her ex-husband, even if these negative comments are about incidents that happened months earlier.

Even where the diary may record actual comments of the children, I doubt if they are exact comments as opposed to the mother’s interpretation put on their comments.  Sometimes it is difficult to even tell if the children have made the comments or if they are the mother’s own comments of her attitude toward her ex-husband.

The diary indicates to me that the mother is obsessed with damning her ex-husband as much as possible, either because of the attitude she perceives he is showing towards her, or because this somehow makes her feel better about herself.

If you are going to journal, think about what you are writing and exercise some discretion before putting all of your thoughts to paper.

NOTE – the Breakup Bible focuses on women getting over relationships.  If you are looking for a book aimed at both women and men getting over breakups I would recommend Getting Past your Breakup by Susan J. Elliot.

Family Law: spouses behaving badly…and why you should behave (well)

Did this really happen?

 Mr. X purported to purchase a diamond ring of considerable size and value for his bride-to-be. He led her to believe it was an extremely expensive purchase when in fact it was a synthetic diamond that cost him $250.00. That ruse was continued through the marriage when some four years later he personally took the ring in to get cleaned and actually had it replaced with another synthetic stone as it appeared the first stone was showing signs of wear. He perpetuated a lie at the foundation of their relationship well into the marriage. This was discovered by Ms. X only after the separation and after she took the ring in for testing to a jeweller. While she may have had her doubts throughout the relationship she chose to believe the best of her fiancé and later her husband.

Yes, this did happen, in Alberta in 1999, as reported in an Alberta case from 2010.

"He told me he got it from Tiffany & Co..."

Not only does this decision provide a warning to those shopping for engagement rings (size matters… but lying about it matters more), it also provides a good reminder about the importance of honesty and integrity throughout your marriage (and divorce).  It is important to be honest and act in good faith because you have a moral obligation to your fellow human beings to do so, but also, if you are motivated by no other reason, note that your poor conduct can come back to haunt you at your divorce trial.

Mr. X’s conduct did not serve him well when he and Ms. X got (inevitably) divorced.

As the Honourable Justice D.K. Miller stated later on in the decision:

Credibility is absolutely crucial in a trial like this…Credibility or believability of a witness is not so much a science but an art.  Credibility has at least two aspects to it.  First, the truthfulness of the witness and secondly, the reliability of the witness. We must first answer the question: is the witness trying to tell the truth and not trying to be deceitful? After that question is answered, such that the witness is worthy of belief, is the factual content, in other words, are the actual words said by the witness trustworthy, accurate and reliable.

In assessing the evidence of the parties and keeping in mind the two step process I just described, I am then left with combining experience, logic, the demeanor of the witnesses, common sense and a whole host of other human characteristics. Things like the general integrity and intelligence of the witness, their power to observe, capacity to remember and their accuracy, as well as all other evidence tendered in the case.

It is true Ms. X may be a little vague or lacking in some details. She may not have recalled everything perfectly. This may be because she trusted completely and unequivocally the man with whom she expected to spend the rest of her life. Many of the details around 1999 and 2000 were not as important to her because she made certain assumptions. These were assumptions based on trust.

On the other hand Mr. X was strategic and somewhat cunning, if not deceitful and parsimonious, when he started this relationship. This continued throughout their engagement, on their wedding day, and throughout their marriage. It would stretch the bounds of common sense and all judicial reasoning in my view to accept Mr. X’s evidence over Ms. X’s. Without hesitation I accept the credibility of Ms. X over that of Mr. X. In any area where there is a conflict between the parties I will accept her evidence. I found her to be fair and balanced in her evidence and in describing Mr. X she was astonishingly even handed, a treatment that one would not expect from a woman who was personally insulted by a man who passed off a $250.00 synthetic stone for an extremely expensive diamond.

 There is nothing wrong with a man giving his fiancé a $250.00 synthetic diamond. However, when he leads his fiancé and the whole world to believe it is worth several thousand dollars, when he himself is a very successful businessman with a net worth of three million dollars, he does not start well.

Another example of  a spouse behaving badly (and later having it come back to haunt them at trial is the Daved v. Daved decision of the Honourable Justice Greckol of the Alberta Court of Queen’s Bench:

There is further evidence to support my assessment of the respective credibility of Mr. and Ms. Daved. After separation, Ms. Daved lived in subsidized housing provided by the Capital Region Housing Corporation. On June 26, 2008, Mr. Daved’s then counsel wrote to the Housing Corporation requesting a copy of Ms. Daved’s application in order to verify that she had provided accurate income information, indicating that “…be advised we have concerns as to Ms. Daved providing yourselves correct information.” The letter then set out the amount of spousal support received by Ms. Daved for 2006, 2007 and 2008. Ms. Daved was called in by the  Housing Corporation to give an account of herself and provide further information.

The actions of Mr. Daved’s representative caused her to endure the stress and uncertainty of whether she would have a roof over her head. In other words, Mr. Daved tried to have Ms. Daved and her son thrown out of their rented subsidized housing after the separation, well knowing that she left the marriage with nothing and was receiving minimal support from him, based on an inaccurately low deemed income.

In summary, I reject Mr. Daved’s evidence that Ms. Daved did little or nothing to support their family operation and I accept Ms. Daved’s evidence that she worked side by side with Mr. Daved in the joint enterprise that was their family life, including work in the business, in the home, on the farm with the animals, in the gardens, doing everything she could to contribute to and support the family.

In this two week trial, I got to sit as second counsel to Renee R. Cochard, Q.C. and represent Ms. Daved, which was a wonderful experience.

It is important to note that it is not only men in Alberta behaving badly and having it catch up with them later. In the widely reported case of Bruni v. Bruni both parties were called out by Justice J.W. Quinn for their poor conduct.

The point of this blog is not to make light of individual situations – it is to encourage people to act in good faith during their marriage (and divorce), if for no other reason then to improve their credibility before the court.

 * Note…Mr. X and Mrs. X are not the names used in the actual court decision.

Women: what to wear to court

Why have I written three blog posts this month about what to wear to court?  Does the court (or anyone for that matter) even notice what you are wearing to court?  The answer is yes!  It has even been noted in written judgments of the court:

On two dates when LD was being cross-examined, she attended Court in rather large, bright pink fuzzy bedroom slippers which was out of sync with her usual manner of attire, and certainly out of the norm for any reasonable person’s court attire.

Women should wear something to court that they feel comfortable in.  Something that fits well and can be described as “business casual” attire (something you would wear to an interview for an office job).

A good look for women (from top to bottom) is:

Wear a cardigan or blazer over any sleeveless top

  • A neutral coloured blouse, or dress shirt that is ironed, clean and properly fitted.  The shirt should not show too much cleavage (also consider that court may be stressful so wear a shirt that doesn’t show sweat);
  • A matching sweater, cardigan, or blazer;
  • An ironed skirt (no shorter than one or two inches above the top of your kneecap) or ironed dress pants;
  • My favorite thing to wear is a “suit dress” – they are very comfortable and you don’t have to iron a blouse (see above);
  • Tights (or nylons) if you are wearing a skirt or socks that match your shoes and pants; and
  • Conservative shoes (closed toe) that are easy for you to walk in.
Also consider, accessories:
  • A satchel, computer bag or briefcase to carry any documents (do not shove them all into your purse);

    Do not wear anything that indicates you disrespect the court

  • Jewelry (keep it simple, tasteful and modest);
  • Nylons (bring an extra pair in your purse).
Also consider, grooming:
  • Keep your makeup natural;
  • Do not apply makeup in the courtroom;
  • Keep your nails clean and neat;
  • Cover Tattoos;
  • Remove piercings (with the exception of an earring in each ear);
  • Keep your hair out of your face and neat looking.
When you are getting ready, focus on the idea: conservative, professional and trustworthy.   Outfits that invoke thoughts of summer, Lady Gaga, and fashion forward should certainly be worn with caution, and not without a second opinion.
It is important to note that different judges have different ideas about what is appropriate for court.  When I was in law school, a girl went to court in a suit with dress capri pants, and was told by a judge that they were not appropriate.
On the other hand, when  someone I know was working , she found out from a reliable source that not all judges felt it necessary to wear nylons in the summer (and we were all pleasantly surprised!).  In any event, I always err on the side of caution and wear nylons (subject to any last minute runs etc…see above).