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

Family Law: in the news

Two news stories caught my attention this morning:

 Thomas Beatie (the man who gave birth to three children) is having difficulty getting a divorce in Arizona.  As reported by CBS:

An Arizona man who garnered national media attention for giving birth to three children after having a sex-change operation has hit a snag in his divorce proceedings that could prevent him from having his marriage legally dissolved.

A judge is questioning whether the state’s same-sex marriage ban bars him from ending Thomas and Nancy Beatie’s union — or even recognizing its validity. Thomas Beatie was born a woman and underwent a sex change but retained female reproductive organs and gave birth to three children.

Thomas and Nancy Beatie are eager to end their nine-year marriage, but their divorce plans stalled when Maricopa County Family Court Judge Douglas Gerlach said in late June that he was unable to find any legal authority defining a man as someone who can give birth.

Former Italian Prime Minister Silvio Berlusconi has come to a divorce agreement.  As reported by the BBC:

Italy’s former Prime Minister Silvio Berlusconi has agreed to pay 36m euros (£30m) a year to his ex-wife Veronica Lario, reports say.

Berlusconi will keep the £60m villa where the couple lived with their three children, as part of a divorce deal reportedly filed on Christmas Day.

Question: How do you file divorce papers no Christmas Day?  Court registrys in British Columbia are closed for the holiday…

 

Wedding: a Christmas gift

Last week a former homeless couple in Calgary got married with the help of donations.  As reported by Global Calgary:

Dolly Sutherland and her partner Mark fell on hard times and ended up homeless for several years. They spent many nights at the Calgary Drop-In and Rehab Centre, but through it all there was one constant.

“I have someone that he’s there to hold my hand, when I fall down he’ll pick me up again,” Dolly says of Mark.

The feeling is mutual.

“To me she’s everything,” Mark says. “She’s family, friendship and love to me, one big package.”

It’s no wonder the couple wants to make it official, but weddings are pricey these days. So when the Drop-In Centre asked Dolly what she wanted for Christmas, one thing immediately came to mind—and incredibly, her wish was granted.

“I couldn’t believe when I had that phone call, my wish came true,” Dolly says.

A stranger offered to pay for the couple’s marriage license, and soon others stepped up to pay for flowers, a cake, dress and all the other little details.

For more information about the Calgary Drop-In and Rehab Center you can check out the website.

“D” is for Divorce

I was watching my favorite video on the internet right now when I came across this video about an episode of Sesame Street called “D” is for Divorce:

As described by the Daily Mail:

Sesame Street has aired an episode which deals with the sensitive issue of divorce for the first time.

A scene on the issue had been originally written for the show in 1992 – but was a disaster when tested before an audience of pre-schoolers who misunderstood and became upset.

The idea was shelved until this year – when writers came up with a slot featuring a fairy called Abby Cadabby whose parents have been divorced for a while. The 13-minute segment will be aired online today. 

Check out the online article and the above video describing the making of the episode.  You can also find a summary of the 1992 episode, that was never aired, on Wikipedia.

National Family Law Conference

Last week I attended the National Family Law Program in Halifax, Nova Scotia.

The conference had amazing presenters and it was really fun to see some of my family law friends from around the country.

Enjoying my first lobster dinner with Andrea Farnham (from the firm Farnham West Stolee LLP)

Over the next few weeks I will be blogging about some of the materials and ideas presented at the conference as well as some of my own including:

  • Gifts and loans;
  • Evidence in family law trials;
  • Gender bias in family law; and
  • Retroactive support.

I am already looking forward to the 2014 program.

Divorce: poetry not appreciated…what about other forms of correspondence?

Twas the night before Christmas, in the Matrimonial Part…

A lawyer has recently gotten in some hot water for writing correspondence to opposing counsel, in the form of a Christmas poem.

In an e-mail to another lawyer, in a seemingly never ending divorce case, Mr. A. Todd Merolla of Atlanta, Georgia, wrote a 15 stanza poem parodying “Twas the Night Before Christmas”.

By way of example, two of the stanzas read:

 The Honorable One now passed, who will take the torch?

To rule on pending motions, some two years on the porch.

Justice delayed is Justice denied,

Will Article 78 inspire someone’s pride?

 

Win, lose, or draw, it’s not for a judge to care,

Simply rule and move on, why is that such a dare?

This 2003 case be a 59 month marriage, 9 year divorce,

$1.5 MM “temporary” maintenance to date, can Plaintiff get more? Why, of course!

Despite the creativity of the piece, it did not go over well with the recipient.  As reported by Staci Zaretsky, of Above the Law:

Talk about good tidings for Christmas. But Merolla’s adversary, Kenneth Weinstein (who may or may not have had a heart that was two sizes too small), just wasn’t in the mood for a holiday-themed ribbing. Weinstein found the poem to be “outrageously offensive, utterly unprofessional [and] threatening.”

What is appropriate correspondence for legal counsel in British Columbia?

The Professional Conduct Handbook  sets out a lawyer’s responsibility to other lawyers including (but not limited to) the following provisions:

  • A lawyer’s conduct toward other lawyers should be characterized by courtesy and good faith.  Any ill feeling that may exist between clients or lawyers, particularly during litigation, should never be allowed to influence lawyers in their conduct and demeanour toward each other or the parties. Personal remarks or references between lawyers should be scrupulously avoided, as should quarrels between lawyers which cause delay and promote unseemly wrangling;
  • A lawyer must respond promptly to correspondence from other lawyers;
  • A lawyer should avoid all sharp practice and should take no paltry advantage when an opponent has made a slip or overlooked some technical matter. A lawyer should accede to reasonable requests which do not prejudice the rights of the client or the interests of justice;

In short, lawyers in British Columbia should not be sending, what I call “snot-o-grams”, to other lawyers, no matter how creatively drafted the correspondence is.

Instructing your lawyer to write a discourteous letter to your spouse/former spouse’s lawyer is asking them to act against their obligations set out in the Professional Conduct Handbook – and should be avoided.

Divorce: alienation of affection

I recently got a call from a wife who wanted to bring an alienation of affection lawsuit against her husband’s mistress.

Having done research on this topic a few years ago, I had to flip through my old files to refresh myself on the Canadian cases dealing with this cause of action (alienation of affection lawsuits do not come up very often).

What is alienation of affection?

Alienation of affection is, in non-legal terms, when someone ‘steals’ your partner away from you.

A situation that could give rise to such a claim, for example,  is when Brad Pitt and Angelina Jolie fell in love on the set of Mr. and Ms. Smith, while he was still married to Jennifer Aniston.

In legal terms, the tort of “alienation of affection” law “evolved from common law under which women were classed as property of their husbands.  As property, they were something that could be “stolen.”

Can you bring an alienation of affection lawsuit in Canada?

The Ontario Court of appeal considered the law of alienation of affection in 1960 in the case of Kungl v. Schiefer.  The case was subsequently appealed to the Supreme Court of Canada in 1962.  In that case, Canada’s highest court confirmed that there were no damages to be awarded for alienation of affection.

The Supreme Court of Canada reconsidered their decision in case of Frame v. Smith In that case, the Court upheld that there was no separate cause of action for alienation of affection and that such domestic matters lie outside of the scope of the law altogether.

What about in other places?

In some jurisdictions, you can successfully bring an alienation of affection lawsuit.  In North Carolina, for example, courts have awarded 5.8 million dollars in damages to a wife who sued her best friend (who also turned out to be her husband’s mistress).