The Supreme Court released the Leskun decision today:
http://www.scc-csc.gc.ca/judgments/2006scc025.htm

At issue was the interplay between fault and spousal support. Ms Leskun argued that support should not be reduced as, 8 years after the fact, she was still too emotionally devastated by her husband’s affair to work.

The Supreme Court held that while fault is not directly considered in awarding spousal support the consequences of the fault can be considered. In the circumstances, the Supreme Court upheld the award of spousal support.

You can find more details about the case discussed in the forums:
http://www.ottawadivorce.com/forum/political-issues/1195-end-no-fault-divorce.html

There was also a previous discussion in the forums about this case before it was heard by the Supreme Court:
http://www.ottawadivorce.com/forum/political-issues/578-bc-divorce-spousal-conduct.html

Taking off my legal hat for a moment, I’m disappointed at the Supreme Court’s endorsement of a person’s unwillingness to take responsiblity for her own feelings and thoughts.

Ms Leskun’s emotional devasation 8 years after her husband’s affair is self-inflicted. A person’s emotional state can be changed over time through rational thought about their feelings and emotions. A person control’s his or her own life. While a divorce can be justifiably devastating, a person has a responsbility to move on with his or her own life in (much) less than 8 years.

I know plenty of people whose spouses have had affairs and even done much worse things to them than that. After a reasonable period of time, they move on. Hopefully, they even learn something from the experience that leaves them wiser and happier in the future. None of them are still so incapactiated 8 years later that they’re unable to work. 8 years is a long, long time.

I’m not saying that it’s as easy as telling yourself not to be emotionally devastated. But if you take the time to think about things like why you’re letting someone who doesn’t even love you any more to emotionally cripple you for over 8 years, and think about it honestly and objectively, you’ll make a lot of progress.

It’s all too easy for Ms Leskund to blame her former husband for her feelings and thoughts, rather than to take some responsiblity for them. And some of the most powerful people in the country, the Supreme Court, has validated this lack of responsibility for your own feelings and thoughts. It’s a sad day indeed for independent people.

In her comments on my post about the so-called Roe v. Wade case for men, Jenny raises a number of interesting questions about what rights and responsibilities an unwed father in Canada has in regards to his unborn children when he is no longer in a relationship with the mother.

Child Support
Once a child is born, the father has an obligation to pay child support. The amount of child support is the same regardless of whether the parties were married or not or whether the child was expected or not or whether there was any fraud or deception.

Jenny asks whether a man may be required to pay child support before the child is born to cover prenatal expenses. The answer is yes: section 34(1)(h) of Ontario’s Family Law Act permits a court to order “payment of expenses in respect of a child’s prenatal care and birth”.

Spousal Support
In Ontario, unmarried couples don’t have the right to spousal support unless they fall under the definition of “spouse”. This means they must have lived together for three years or have been living in a relationship of some permanence and be the parents of a child. In other provinces the time limit is different than the three years.

However, in one case in Ontario, where a couple had only been dating 9 months - they lived separately and only slept together on weekends - an appellate judge ordered spousal support be paid to cover half of the prenatal costs the mother incurred. The judge found that this was a marriage-like relationship and so the father fell within the definition of “spouse” under the Family Law Act.

Right to Know About the Child
Jenny states quite correctly that if the mother doesn’t let the father know about the pregnancy, then the father doesn’t really have any parenting rights. There is no law to compel a mother to inform the father about a pregnancy.

Adoption
Jenny asks: “If the woman chooses to give the child up for adoption does the man not have a say - does he not have to sign away his parental rights at the same time?”

If the man doesn’t know about the child, obviously there’s not much he can do to prevent the adoption.

However, if the mother wants to give the child up for adoption and the father wants custody, the father would have a good chance of getting custody.

Abortion
A man can’t force the mother of this child to have an abortion.

Miscellaneous
There have been some suits for fraud and other creative torts in cases with facts along the line of the “Roe v. Wade for men” case. Damages claimed usually include the total amount of child support the father would be estimated to pay over the course of the child growing up. As far as I know, none of these cases have been successful in Canada.

Conclusion
Don’t have sex. No, just kidding!! But you should be aware that if a pregnancy occurs, your legal obligations are pretty close to what they’d be if you were married.

Most people involved in a family law case in Canada know that the amount of spousal support or child support that must be paid is based on income. However, income for family law purposes is not the same as income for income tax purposes.

The question that often arises is what is income for family law purposes. Often people receive income in a year that they don’t normally receive - this is known as non-recurring income. Should this be considered as income for purposes of calculating child support or spousal support?

The answer is, as always, it depends on the facts of your case. The Child Support Guidelines give judges a discretion to decide whether to include or exclude one-off payments in income. However, over time, certain patterns emerge in judges’ decisions. While they are not “rules” they can provide guidance as to your particular case.

There is a bias in the courts towards including non-recurring income in income for child support and spousal support purposes. The philosophy behind this is that if you can pay more support, you should be required to do so, as this is what’s best for the children. There’s also another guiding principle in the courts, which is that a child’s standard of living should be about the same at each parent’s household.

Some of the most common types of non-recurring income that courts deal with are:

1. RRSP Redemption. Even though RRSP redemptions are included in your income for tax purposes, a one-off RRSP redemption normally would not be considered part of your income for child support or spousal support purposes. However, if you had a pattern of cashing in a certain amount of RRSPs each year, the results might be different.

2. Stock Options. The law about including stock options in income is less clear. If you exercise stock options on a regular basis, the chances are that they will be included in your income. However, if you exercise stock options only once, and this is not part of your normal pattern of income, there are leading cases that say this should be included in income and also that say this should not be included in income. If you have a significant amount of one-off income from stock options, get a good family law lawyer and be prepared to roll the dice.

3. Severance Packages. These are normally included in income for support purposes, even if you find a job right away and so have an unusually high income in the year the severance package was paid.

4. Personal Injury Awards. Generally, if the damages you receive in a personal injury award are for pain and suffering, this does not need to be included in your income for purposes of calculating support. If the damages you receive are for loss of income, these generally do get included in income for support purposes. If you’re negotiating an out of court settlement of your personal injury suit, you can guess how you want the settlement to read.

5. Capital Gains. The treatment of this type of income is all over the map, but generally one-off capital gains are considered income for purposes of calculating support. On the other hand, generally one-off capital losses are not used to reduce income for purposes of calculating support. The most usual case where capital gains will not be included in income is where the gains are immediately re-invested. For instance, if you sell a business, and re-invest the proceeds into a new business, then generally the capital gains from the sale of your business won’t be considered as part of your income for purposes of calculating child support and spousal support.

When a women gets pregnant, there is a defined period during which she can make a choice about what to do with the baby - raise the child, put the child up for adoption, or have an abortion. However, as the law stands right now, men don’t have any say into that choice, yet the women’s choice will have a dramatic impact on his life for decades to come.

In Michigan, a lawsuit has been commenced to challenge this. Matt Dubay of Saginaw, Michigan was ordered to pay $500 per month in child support for a girl born last year to his ex-girlfriend. Mr Dubay states he told her many times that he did not want a child and also that his ex assured him repeatedly that because of a physical condition she could not get pregnant.

The argument, which I agree with, is that men should have the same rights as women do to terminate parental responsibility for an unwanted child as women currently do either through abortion or adoption.

As most people seem to concentrate on the hot button issue of abortion it’s important to emphasize the adoption side of it - a woman can at any time voluntarily end all financial and other responsibility for a child by giving the child up for adoption. Most people do not find it morally repugnant that a woman wants to put a child up for adoption - nor would they demand that once the adoption has occurred, the woman pay child support because she is the biological parent.

Opponents of giving men choice have several arguments that on closer examination don’t really hold much water. Let’s take a look at them.

1. This is just an excuse for men not to pay child support. I’m sure for some men that’s true, but there are a lot of reasons why someone may not want a child other than paying child support. In any event, this really just begs the issue. Before a child is born, the law gives women a choice (abortion) as to whether they want to be financially responsible for a child. After a child is born, the law gives women a choice (adoption) as to whether they want to be financially responsible for a child. Why should men be denied these choices?

2. The best interests of the child. This argument is basically that we should be concerned with what’s best for the child, not the parents, and the more money there is to raise the child, the better. Well, some of the most dysfunctional families I’ve seen in my practice are the wealthy ones, so I don’t even agree that more money = a better childhood.

But let’s leave that concern for another day and assume that more money is better for a child. In making any other decision in her life, the mother needs to consider her financial resources. Why should this be different - if you want a child and can’t afford it, why should you be allowed to coerce someone else to pay for it. Hey, I want the largest house in the best part of town, and I know that would be best for my child - perhaps someone should be forced to pay for that. After all, it’s all in my boy’s best interests.

I’d also point out that as a society we don’t obligate sperm donors to pay child support. The only practical difference in the child’s life between Mr Dubay and a sperm donor is that Mr Dubay is not anonymous.

I also find it a bit hypocritical that the best interests of the child are brought in at this stage - after all this is the stage at which the woman has the right to decide whether the child should be conceived or not. If it really is all about the best interests of the child, then abortion would need to be prohibited in all but a few extreme cases.

3. False comparison between men and women. This argument is basically that deciding whether to have an abortion or whether to put a child up for adoption are very different decisions than deciding whether to pay child support. But it’s not really. In deciding whether to have an abortion or whether to put a child up for adoption the woman is essentially deciding whether she wants to take on responsibility — including financial responsibility — for a child. All that’s being asked for is that a man has the same opportunity, during the same time period, to decide whether he wants to take on responsibility – including financial responsibility – for a child.

4. Men should keep their pants zipped. OK, this is really the silliest argument I’ve seen. Last time I checked (and high school biology was a long, long time ago) it takes two to create a child. Yes, obviously sex can lead to children, but again that begs the issue. The issue is that once pregnancy has occurred, there is a huge discrepancy in the rights and choices that a man has and the rights and choices that a woman has.

People say Dubay should “step up and be a man” even though he doesn’t want parental responsibility. Would they say the same thing to his ex if she put her child up for adoption? Would they say that a woman who puts her child up for adoption should “step up and be a woman” and pay child support? Or, what if the roles had been reversed and Dubay lied to his girlfriend that he had a vasectomy and as a result she got pregnant - would she be demonized by people who are pro-choice that she was wrong to get an abortion? Double standards die hard.

In my last post, I discussed 8 roadblocks to settling your divorce. They are not easy to overcome, yet they are the reason that many divorce cases become so difficult to resolve.

My preferred method for dealing with a lot of these roadblocks is to get a neutral experienced third party involved who can deal with the roadblock. In an amicable case, this can be a mediator, preferably one with great credentials. Otherwise, this person normally is a judge. Although I like to try to keep cases out of court if possible, if there is a serious roadblock to settling your case, you’ll need to go to court, so for today I’ll just assume your case is a litigated one and the neutral third party is a judge.

One feature of the family court system in Ontario, which I support strongly, is early judicial intervention in a non-adversarial setting – the case conference. Handled appropriately, the case conference can remove a lot of the obstacles I discussed and allow the parties or their lawyers to work towards a resolution of their case.

Here’s how a judge can help, particularly at a case or settlement conference:

1. The other divorce lawyer. In my last post I discussed how an inexperienced lawyer may not be reasonable simply because they don’t know what a local judge will decide. However, a judge at a case or settlement conference can give an opinion as to what the judge would decide at trial. I also discussed how an overly aggressive lawyer can be a roadblock. Family law judges really encourage reasonableness and aggressiveness often backfires in court. As well, an early victory at a motion can help in the case of an overly aggressive lawyer.

2. Unreasonable clients. Although many clients don’t listen to their lawyers, generally clients listen to judges. An early case conference can allow a judge to give an opinion as to the strengths and weaknesses of each spouse’s case. If someone hears something from both their lawyer and a judge, normally they will (begrudgingly) go along with it.

3. Child custody disputes. Getting the Children’s Lawyer or a child custody assessor involved can really help, both in terms of resolving the case, and in helping each party to see their strengths and weaknesses as a parent.

4. Delay. Getting the matter in front of a judge as early as possible and getting orders as to a time line will help with this.

5. Revenge. A judge can show a vindictive spouse the financial consequences and the consequences on the children of pursuing a path of revenge.

6. Legally aided spouse. An ongoing problem with legally aided spouses is that you negotiate an agreement and then at the last moment, the agreement is not signed. Having the negotiations occur in a formal setting in front of a judge can result in a court order instead. Also, moving these sorts of cases through the legal system as quickly as possible seems to work well in minimizing wasted legal fees.

7. Spouse not working. Your time in front of a judge is going to be limited - you’re lucky to get an entire hour. So, the judge will just want to deal with the big issues and if the spouse who is not working has come up with a lot of trivial issues that do not need to be resolved, the judge will normally be blunt and point that out.

8. Interference from family. At a case conference or settlement conference, you can ask the judge to exclude everyone from the court room other than the parties and their lawyers. This will allow you to get the interfering family member or friend out of the decision making process.

Obviously, my suggestion is not a magic bullet - if such a thing existed, all divorce cases would be completed in weeks rather than in months. However, judicial intervention in a non-adversarial setting through conferences can make a difference in a lot of cases.

Many times in my practice, once I am familiar with all the facts of a case (including both my client’s version and the version of my client’s spouse) I can predict a range of outcomes that’s normally very accurate. Despite this, it can be difficult to settle a divorce case, raising legal fees tremendously and causing both parties a lot of stress. Here are 8 of the reasons why this happens.

1. The other divorce lawyer. I do agree with the common perception that lawyers can make things more difficult than need be. The reasons for this are somewhat complex. Some lawyers are overly aggressive. This isn’t solely the lawyer’s fault - clients going through a divorce often want their lawyer to be aggressive. Aggression isn’t the only problem - an inexperienced lawyer may not be reasonable simply because they don’t know what a local judge may decide.

2. Unreasonable clients. One thing about being a divorce lawyer is that even though you’ve dealt with a situation many times before, a client knows more about it because a friend of a friend said something. Whether you like what the law has to say or not, for most middle-class couples in fairly average situations, the law is pretty clear. But it can be difficult to resolve a case if one spouse doesn’t agree with what the law is. (As a side note, I agree that in a lot of cases, the result isn’t fair, but that’s a political, not a legal, issue).

3. Child Custody Disputes. In most cases, you can say it’s just money, and move on. With the children, you can’t do this. Custody disputes are one of the most difficult types of case to settle.

4. Delay. It’s usually in one spouse’s interest (normally the payor) to delay settlement, even if it is just a matter of postponing the inevitable, while it’s best for the other spouse (normally the recipient) to resolve things as quickly as possible. Add in delays because each spouse’s lawyer is busy at a different time and it’s no surprise that divorce cases aren’t resolved quickly.

5. Revenge. Often the divorce process is used as a way of getting revenge on a spouse. Yes, you really can make you’re spouse’s life miserable through the divorce process if you wish to. And despite the high financial cost of doing this, many people choose to go this route. This is particularly the case where one spouse has had an affair.

6. Legally Aided Spouse. Normally, high legal fees are an incentive to settle a divorce case quickly. Every dollar in legal fees is a dollar that is taken away from the children and from both spouses. However, where one spouse is legally aided and the other one isn’t, one spouse bears all the financial consequences of a divorce battle while the other’s finances aren’t affected.

7. Spouse Not Working. Where one spouse isn’t working - say they’re a homemaker or disabled - I’ve found that cases are much more difficult to resolve. The non-working spouse seems to spend an inordinate amount of time thinking about the divorce case, and coming up with ways to make it complicated.

8. Interference from family. I’ve had a number of cases where I think that the two spouses could actually work things out amicably - maybe even without the help of divorce lawyers. But there is a meddlesome family member who just won’t let this happen, and who seems to have a large influence in one spouse’s life. I find that this is particularly the case for younger couples, who probably still have a closer attachment to their parents than do older couples. It is also particularly prevalent in couples of Far Eastern origin where family has quite a different role and meaning in their lives than for people who are born and raised in Canada.

In a future post, I’ll discuss some of my thoughts on how to resolve these roadblocks.

Please let me know what some of the roadblocks are that you’ve encountered in trying to settle your divorce.