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…

 

“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.

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).  

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.