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.

In Ontario, what was previously known as an examination for discovery is now called questioning. I’ve previously discussed what questioning is.

There was an extensive discussion in our forum about how stressful questioning is.

Here are 8 tips about how to succeed at your questioning:

1. Give Precise Answers. If you’re asked how much you earned last year, give a dollar figure. Don’t explain why it was higher or lower than usual, or that it included a bonus. If someone is holding a pen and you’re asked “Do you know what this is?” the correct answer is “yes” not “a pen.”

2. Tell the Truth. Don’t try to outsmart your spouse’s lawyer. Not that your spouse’s lawyer is smarter than you, but they’ve been through this a lot more than you have.

3. Prepare in Advance. Ideally you’d review every document that has been produced in your case. At a minimum, you should be familiar with your financial statement and all the pleadings. Take the time to have your lawyer do a mock questioning of you.

4. Anything You Say Can and Will Be Used Against You. Remember that your questioning can only be used by your spouse’s lawyer to help your spouse’s case. Your lawyer can’t use your questioning to help you. So, don’t worry about trying to argue your case. Just answer the questions you’re asked.

5. “I Don’t Remember” is a Dangerous Answer. Think long and hard before you answer a question with “I don’t remember” (or even “I don’t know”). The problem is that you can be sure your spouse will have a vivid memory of everything you forget. Even if what your spouse says is completely made up, you’ll have a hard time convincing a judge otherwise, because you’ve already sworn that you don’t remember.

6. You’re Not Stupid. Often a lawyer will use unfamiliar terms, sometimes purposefully to confuse you, but oftentimes simply out of habit. If you don’t understand what you’ve been asked, get it clarified. No one will think less of you if you do this, and you may be saving yourself from answering the wrong question.

7. Your Lawyer Can Only Help So Much. Your lawyer’s role is mainly to ensure that you’re not asked inappropriate questions. So, there may be large periods of time when all your lawyer seems to do is sit there and listen.

8. Don’t Answer Until the Question is Asked. In normal speech, we often start talking once we know what the other person is going to say. At questioning this is a problem, as a reporter will need to write down what two people are saying at once. It’s a good idea to speak loudly and clearly as well so that the reporter correctly records what you say.

Will you still be stressed even if you do all the above? Yes, and you probably won’t sleep well the night before, and after your questioning you’ll probably think of all sorts of better answers you could have given. That’s normal and happens to everyone. But if you keep these tips in mind, your questioning will go a lot more smoothly.

One of the most difficult things to deal with in family law is when one parent denies access to the other. This normally occurs in one of two ways: (1) simply not dropping off the children for access or not being around when the other parent arrives to pick up the children for access; and (2) “overholding” the children – i.e. returning the children late, sometimes by an entire night. I find that it’s particularly problematic around holidays and also where parents live in different cities.

From a legal point of view, the options for dealing with this are unfortunately limited:

1. Usually your lawyer can’t do anything immediately as access changeovers often occur on or near weekends. Even if your lawyer manages to reach the other parent’s lawyer, chances are the other parent is not just denying access, but also avoiding their lawyer’s telephone calls.

2. The police generally won’t help you. Normally their excuse will be that your agreement or court order isn’t specific enough. For instance, if you have access every second weekend, it won’t be clear whether this is your access weekend or not. But even if your agreement or court order is specific, it is rare that the police will want to get involved. They’ll probably tell you to speak with your lawyer.

It’s extremely frustrating to have time and plans with your children ruined without any notice. So, what can you do? Here are my suggestions:

1. Keep your cool. If this is the first time this has happened, there may well be legitimate reasons why the other parent is delayed.

2. If you have a chance, go to court on an urgent basis to get an order directing the police to enforce the visitation order. This is a good option for a longer access period – say, if the children were to spend their spring break with you.

3. Keep trying to pick up your children. If you’re supposed to be spending a specific time period with your children, there’s nothing wrong with going to the other parent’s home many times to try to pick up your children. Even if the other parent is the one who is supposed to drop the children off at your home, it may make sense for you to try to pick up your children.

4. Document everything. A stern letter should immediately be sent to the other parent or their lawyer. My experience is that these letters normally are not answered, so you should chase this up. The point of this is to create a paper trail so that in the future you can show (if you need to) the other parent’s pattern of access denial.

5. Demand make up time. Depending on the situation, this may or may not be feasible. Make up time is probably what’s best for the children anyhow.

6. If a parent is persistently late returning the children, go to court to get the changeover time modified to an earlier time. Also, consider picking up the children yourself rather than relying on the other parent.

7. If your case hasn’t been resolved yet (i.e. you only have a temporary or interim order for access), use the denials of access to build a case as to why you should get sole custody. One factor courts consider in awarding custody is the willingness of each parent to facilitate access to the child by the other parent.

8. The last resort for dealing with persistent denial of access is by bringing a motion for contempt of court. As I discuss, there are a lot of difficulties in proceeding this way, but if the other parent is persistent in denying access you really have no choice. The keyword is persistent: it generally not worth going to court about an occasional missed access period.

Have you had problems with access being denied? Please share your story with me by adding your comments below.