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

Parenting: Can we Travel to Disneyland?

An Alberta couple recently spent several months fighting about if the mother could take the child of the relationship to Disneyland.

How hard is it to get the the "happiest place on earth"?

In the case of Vervoorst v. Parker, Ms. Vervoorst requested, in October 2011, that Mr. Parker sign a travel consent so she could travel with the parties’ five year old child to Disneyland, in April 2012.  The parties had a number of disputes about the travel consent and, this led to a court application and a written decision of Justice Lee.   Justice Lee ordered that the mother could take the child to Disneyland and dispensed with the requirement for the father to sign a written consent.

Question: After separation, do I need the consent of the other parent to travel with my child outside of Canada?

I get asked this question quite often.  Generally, the answer is yes, you do need the consent of the other parent to travel outside of Canada with a minor child.

I know of some people who “take a chance” and cross international boarders without written travel consents of the other parent.  This is not a good idea.  The last thing you want, for example, is to be trying to drive across the US boarder on a long weekend and be stopped. 

Do you remember the episode of 90210 where Dylan and Brenda go to Baja and she gets stopped at the boarder?  The other parent is probably going  to be equally annoyed as Jim and Cindy Walsh if they have to come and bail you out at the boarder…skip to minute 7 of the video.

Question: What kind of consent do I need? What form should the consent take?

If you are travelling outside of Canada with minor children, it is best to have written consent in the form suggested by the Department of Foreign Affairs and International Trade Canada.

Travel consents are quite easy to prepare – you can likely prepare one yourself and then go to have your lawyer review it and provide you with any legal advice and recommendations necessary.  

You can find the link to an interactive consent form on the Foreign Affairs and International Trade Canada website.

The website also provides some general guidelines about travelling with a child:

Since every situation is unique, we recommend that you talk to a lawyer for advice on what your child will require, particularly if your parenting arrangement has special terms governing international travel.

Carrying a consent letter cannot guarantee entry, as permission to enter another country is entirely the decision of that country. A consent letter may be required by foreign authorities, in addition to other country-specific entry requirements. You should contact the representatives of the country or countries to be visited by the child to ensure that you have the most up-to-date information regarding specific entry requirements.

We strongly recommend that you have the consent letter certified, stamped or sealed by an official who has the authority to administer an oath or solemn declaration, e.g., a commissioner for oaths, notary public or lawyer, so that the validity of the letter will not be questioned. Note that regulations concerning the administration of oaths fall under provincial/territorial law and are not determined by Foreign Affairs and International Trade Canada. Furthermore, it is up to each official/individual who witnesses such a letter to decide what proof he/she needs to see to be able to witness/sign the letter. An official should only witness/sign a letter of consent if he/she is convinced that the individual requesting the letter is who he/she claims to be and that adequate proof has been provided.

We also recommend that you contact the transportation company (airline, train, bus, etc.) in order to observe any additional policies they might have in place.

There is also more information available about children and travel on the Foreign Affairs and International Trade Canada website.

Question: What are some tips for approaching the other parent to get consent?

Generally, the easiest and cheapest way to proceed is to make reasonable agreements between parents about international travel arrangements.  An example of this would be:

  1. Inform the other parent, in writing (for example a friendly e-mail) about your travel plans, including: the specific dates you are proposing to travel, where you are going, and who you are going with and how they will be able to contact the child while you are travelling – ideally this would be well before the proposed travel (ideally 6 months to allow for flexibility);
  2. Obtain the other parents agreement to your travel plans and make adjustments if necessary (for example, we have grandma’s 100 Birthday celebration that week – could you go on vacation the next week?).  Ideally you would get the other parent to consent to the travel itinerary before you book your trip;
  3. Once you have obtained agreement for your travel plans, discuss with your lawyer what consents and special arrangements are necessary (for example, a trip to China will have different requirement than one to Disneyland and the requirements if you have sole custody might be different than if you have joint custody);
  4. Send the other parent the required consents and request, politely, that they sign them and return the originally executed documents to you within a reasonable time (for example two weeks); and
  5. Once the travel consent is signed, provide a copy to the other parent for their records.

Generally, being reasonable, ensuring that you have proper lead time, and respecting the other parents requests for travel dates will help you stay out of court on the matter of travel consents.

Question: What if the other parent unreasonably refuses to consent?

In certain situations, the Court may make an order dispensing with the requirement for written consent to travel (either for one trip or for all travel outside of Canada), for example in one case, the court made an order for both parents to travel outside of Canada with notice to the other parent, but not specific written consent:

In addition, the plaintiff has raised the issue of Kevin’s passport. The plaintiff requested that the defendant sign Kevin’s passport but on the last day of trial he had not done so. While the defendant asserted at trial that he has done so and will remain in contact with the plaintiff so that he is available to sign for its renewal in the future, the defendant’s communication and cooperation with the plaintiff to date has been sporadic. As a result, I will also make an order that the plaintiff will be at liberty to apply for Kevin’s passport without the defendant’s consent for the purposes of s. 7(2) of the Canadian Passport Order, SI/ 81-86Slater v. Slater,2002 BCSC 552 (CanLII), 2002 BCSC 552.  The plaintiff is required to notify the defendant that she is making such an application. Furthermore, she does not require the defendant’s written consent to travel abroad with Kevin, however, the plaintiff is required to give the defendant 48 hours’ notice of any intended travel with Kevin.

With respect to the defendant, he may also travel with Kevin without the written consent of the plaintiff, however he must provide 30 days’ notice along with travel and contact information 48 hours in advance of departure and is required to return Kevin’s passport to the plaintiff forthwith upon their return.

 

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.

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.