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.

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You can now subscribe to my blog via email. Simply fill your email address in to the little box under my photo, and click the “subscribe me!” button. It’s kind of a neat technology that every night takes my postings, converts them to email, and mails them out.

If you’re into reading a lot of blogs, you can also get a newsreader account and subscribe to my blog feed. There are a bunch of colourful buttons under the heading “Syndicate” (located at the bottom of the right-hand column of my blog) to make it easy to subscribe using the newsreader of your choice.

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If you’re reading this blog, you probably realize that pretty much anything you need is on the interent. However, it’s not always easy to find things. Here’s a list of websites relating to divorce and family law that I refer to regularly:

Family Court Fees - Darned if I can remember how much court fees are and besides, they’re always changing. Right now, the total court fee to obtain a divorce is $447. It costs $157 to file an answer to an application for divorce. There are slightly different fees for different types of proceedings so check here for details.

All Government Forms - With the government, there’s a form for everything. Gotta love that paperwork. Need a form? Check here.

Apply for a marriage certificate or divorce certificate - Who still has their marriage certificate after all these years? But you can’t get a divorce without one. Order yours here. Order early, as it can take a long time to receive it. And if you want to re-marry, you’ll need to prove you were divorced. You can get your divorce certificate here as well. For Ontario only - each province has a separate office.

Divorce Act - The law governing divorces in Canada.

Family Law Act - Provincial legislation. Applicable for property division or for other issues where there is no divorce (e.g. common law separations).

Family Law Rules - This is what governs the court procedures in Ontario.

Family Responsibility Office - These are the people who enforce child support and spousal support orders. Expect to be on hold a long time when you call. Contact details and any forms you need to deal with them are here.

Federal Child Support Guidelines - This is how child support works in Canada.

Child Support Tables - Calculate how much child support you should pay or receive.

Ministry of the Attorney General - Family court services, supervised access, legal aid, Children’s Lawyer and more.

Ontario Court Forms - More forms for you.

Pension Benefits Division Act - Mostly useful for Federal Government employees.

Request for Director’s Statement of Arrears - Find out how much spousal support or child support you owe or are owed.

List of Ontario Court Addresses - It’s always helpful to know where to file your divorce papers.

Find a Person.

Canada Post - Find a postal code.

Currency Converter - By the Bank of Canada. Useful for presenting official conversion rates in court if you or your ex lives outside of Canada.

The Law Society of Upper Canada - Governing body of the legal profession.

And … don’t forget my other sites as well: I’ve got more divorce information here, information for unmarried couples here, information in French here, and marriage contract and cohabitation agreement information here.

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Can you spot a loopy piece of code faster than a speeding bullet? Can you create security systems more powerful than a locomotive? Can you leap across multiple platforms in a single bound?

If you answered yes to these questions, you may be a Superman when it comes to technology, BUT if you’re like a lot of IT professionals I know…

You’re Clark Kent when it comes to identifying the tell-tale signs of a system crash in your marriage.

Even with Superman’s super x-ray vision, you could still be missing the ‘red flags’ that signal the end of wedded bliss. That’s why I’ve created the….

Top 10 Ways An IT Professional Knows It’s Time To Call A Divorce Lawyer

1. Your wife puts a blond wig on your monitor to remind you of what she looks like.

2. You communicate with your family via email, IM and your blog more often than in person.

3. Your idea of romantic lighting is the soft glow of an active-matrix LCD panel.

4. Instead of your wife’s name, you murmur “Matt Cutts” in your sleep.

5. Instead of referring to your first child “Junior,” you call him “2.0.”

6. Your idea of a come-on line is “Nice set of Floppies.”

7. You send birthday wishes, holiday cards, and chocolate Valentines to the people at the Dell service desk, but forget your wedding anniversary.

8. Your bumper sticker reads, “Married2MyComputer.”

9. You don’t know how long you’ve been married, but you know exactly when you bought your notebook computer.

10. When your wife says, “If you don’t turn off that computer and come to bed, then I am going to divorce you!” you yell at her for leaving out the “else” clause.

Okay … the truth is there’s nothing funny about divorce. If your marriage isn’t working out, you need seriously to address the problem, and without delay.

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I recently discovered an interesting new blog - the Alabama Family Law Blog. This is produced by the Mobile, Alabama firm of Sherman & Jeffries, LLC. The blog contains a wealth of important tips for people involved in family law litigation. Some of these tips are:

1. Inform your lawyer right away if you have a prenuptial agreement. Simple as that might sound, many people don’t do it, and a lot of time and legal fees can be wasted as a result.

2. Make sure you show up for court if you’re supposed to. Family law judges in Canada don’t like entering default judgments either. If you miss your court date and move quickly, you can normally set the default judgment aside. However, chances are good that costs will be awarded against you.

3. Get your money fast. If you’ve got a joint asset that goes down in value, chances are that both spouses will have to share the loss until the asset is divided. While I haven’t seen assets decline substantially in value since Nortel and other high tech stocks crashed a few years ago, it’s something to keep in mind as the stock market often suffers “corrections.”

Also interesting to see was that Alabama is introducing a bill that would allow children 14 years or older to choose their custodial parent. While it’s not something I agree with, that’s pretty close to what happens here anyhow. Judges are very deferential to teenagers’ wishes, although that is not the sole criterion in deciding custody. I don’t agree with this, as frankly, I’m not sure teenagers are mature enough to decide what’s in their best interests. Most teenagers, left with the decision, would normally choose going to a social event over doing homework. That’s alright once in a while, but in long run, probably not in the teen’s best interest.

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The intersection between family law and bankruptcy is fairly complicated. If you’re faced with that situation, it definitely makes sense to retain a lawyer who is experienced in the area of bankruptcy. Your family law lawyer is normally not the best choice unless they have extensive bankruptcy experience.

What is a bankruptcy? Basically, when a person is unable to pay their debts as they become due, they can declare bankruptcy.

When a person declares bankruptcy, all of their non-exempt assets – that is assets that are permitted to be seized – are essentially transferred to a person known as the trustee in bankruptcy. The trustee in bankruptcy liquidates these assets and uses them to pay off the bankrupt’s creditors.

The payments to the creditors are done on a pro rata basis - that is, each creditor receives the same percentage of the money that is owed by the bankrupt – for instance, all creditors may received 10 cents on the dollar.

As well, when a person declares bankruptcy, all legal and other proceedings to collect money from the bankrupt must stop (for instance, family law proceedings for a division of property).

In addition, there are tables, somewhat like the child support guidelines, that state how much a bankrupt must pay to the trustee each month based on the bankrupt’s income. These payment are used to pay the creditors as well.

After a period, normally 9 months if it’s a person’s first bankruptcy, the bankrupt can apply to the court for a discharge. This is normally granted on a person’s first bankruptcy if they have not done anything fraudulent, etc. However, a judge can put conditions on the discharge - for instance, a continued monthly payment to creditors. When a person is discharged, except for any conditions attached by a judge, the slate is wiped clean - any debts owed before then are no longer payable.

I wrote about the effect of bankruptcy and child support and spousal support here.

The effect of bankruptcy on property division is a bit more complicated.

If the bankruptcy occurs before you separate, it has no effect on your claim for a division of property. This is because your claim for a division of property (technically a claim for an equalization payment) only arises on the date of separation. Of course, if your spouse goes bankrupt just before you separate, your spouse’s net family property may be virtually nothing, which may well mean you’re the one who has to make an equalization payment.

Let’s turn to the case where your spouse declares bankruptcy after you separate - can you still get the equalization payment that was owing to you?

A claim for an equalization payment against your spouse puts makes you a creditor of your bankrupt spouse. There is no preferential treatment in bankruptcy for equalization claims. You have the same right to a recovery of your equalization payment as any other creditor does. So, if your spouse ends up paying creditors 10 cents on the dollar, you’ll receive 10 cents on the dollar of your equalization claim.

There are some wrinkles to this. First, if the equalization payment was the main debt your spouse had, and the bankruptcy looks like an attempt to avoid an equalization payment, the bankruptcy judge may not be too impressed. You could object to your spouse being discharged from bankruptcy. The judge may put conditions on the bankrupt’s discharge, such as continued monthly payments for a few months. Note that you would need to share these extra payments pro rata with all of your spouse’s other creditors.

A second wrinkle is that there are some assets that are subject to a family law claim, but are exempt assets in bankruptcy. Examples of this are a person’s pension or a LIRA. That is to say, if a person goes bankrupt, they don’t lose their pension. But as part of an equalization claim, the value of the person’s pension must be included in their net family property.

In a situation like this, you’d need to obtain an order from the bankruptcy court allowing you to proceed with your family law claim for an equalization payment, notwithstanding the bankruptcy. In other words, when a person goes bankrupt, legal proceedings against them for money are stopped, and you need permission to proceed with legal proceedings for an equalization claim. The bankruptcy court will normally grant permission to proceed with a family law claim in these circumstances.

You then need to go to family court and ask for an “if and when” division of the pension. Basically this means that if your spouse receives the pension, when they receive it, they must use part of it to pay your equalization claim. Obviously this is somewhat of a tenuous claim - you’ll need to wait many years and if your spouse dies before receiving the pension, you’ll get nothing. But it’s better than getting nothing to begin with.

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Sigrent wrote a comment on divorce legal fees in the forums. He complains about how high legal fees are, and then offers some proposals for ensuring that your legal fees are kept down.

The issue of legal fees for divorce is a complex one, which I can’t do justice to in a brief post here.

Some things to consider:

1. Family law gets more and more complex all the time. Nowadays a lawyer has to specialize in this area to even begin to attain a degree of competency. This drives divorce legal fees higher.

2. Social norms change. For instance, a generation ago, men generally didn’t get custody. Now, in many cases, they demand to be equal parents. The additional conflicts this causes drive divorce legal fees higher.

3. The law can be very grey and the financial stakes huge. For instance, the value of a pension may vary by several hundred thousand dollars, depending on what age a person retires. This drives legal fees higher.

4. Justice can be uneven. The results you’ll get before one judge may differ greatly than what you’d get before another judge. This makes it difficult to settle cases, which drives legal fees higher.

5. There’s no end to creativity of couples as to how nasty and complicated they want to make each other’s lives. The conflict drives legal fees higher.

6. Although a lawyer may make things look easy it actually is a lot of work even if you just want to do well in negotiations. To do well in court requires even more lengthy and detailed preparation. This drives legal fees higher.

I’m rambling a bit, but basically there are a lot of good reasons why a divorce costs so much. I’m not saying that’s ideal or the way it should be, but simply observing how things are.

Regarding Sigrent’s suggestion about flat fees: Flat fees work well when you can predict the amount of work involved. In a divorce, this is generally not possible. It’s always possible to raise more issues, if you or your spouse is thus inclined. It’s always possible for one or both spouses to be unreasonable (surprise - that’s one reason why you left them). As well, until the case has developed, it may not be possible to know what all the issues are in more than the most general sense.

I find Sigrent’s advice not to be afraid to haggle somewhat troubling. It shows that price is a major factor in your decision to retain a lawyer, which it shouldn’t be in something as important as your divorce. There are good ways to keep your legal fees down, but haggling is not one of them.

I think that one of the reasons why people get bad legal representation is that they try *too hard* to save legal fees. They try to get free consultations, shop around for the lowest priced lawyer, complain to their lawyer about every bill and try to get it reduced, and so forth. Granted, it’s good to save money. But saving a few dollars in legal fees may cost you a lot in your final divorce settlement.

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Welcome to my new divorce blog. I hope to make this a valuable addition to my website, providing you with divorce information, help and support. Please feel free to comment, as I’m always happy to hear from you.

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