Archive for the 'Opinion' Category

The End of No-Fault Divorce? The Leskun Case

June 22nd, 2006

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.

Roe v. Wade for Men

March 26th, 2006

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.

National Organization of Women Contradicts Itself

February 20th, 2006

No fault divorce means that you can obtain a divorce without proving that either spouse has done something wrong. In Canada, the divorce laws were overhauled in 1968, and since then it has been possible to obtain a divorce without proving fault.

So, for instance, in Canada, you can obtain a divorce simply on the ground of one year of separation. Your spouse does not need to cooperate to give you the divorce. Your spouse does not need to sign any papers. You do not need to prove that your spouse has committed adultery or abused you or anything like that.

New York is the only jurisdiction in the United States without a no-fault divorce provision. Currently, they are considering introducing legislation allowing no-fault divorces. I read with some interest that the President of the New York chapter of NOW is opposed to this. She alleges that no-fault divorce is bad for women. The reasons she gives for this are:

1. Fault-based divorce is needed to give economically weaker spouses (normally women) leverage in divorce negotiations.

2. There’s proof of #1 – studies show that women are receiving alimony and the marital home less often under fault-based regimes than under no-fault regimes.

3. Erm, that’s it.

Interestingly enough, the situation is the reverse in Pennsylvania. There, political interests seem to be making inroads towards repealing no-fault divorce provisions. As a result, the President of the Pennsylvania chapter of NOW is opposed to this (even though the situation is the reverse of New York). She alleges that fault-based divorce is bad for women, although she doesn’t state her reasons. She simply implies that fault-based divorce will result in worse economic conditions for women.

So, there you have it, according to NOW, women will be poorer under a no-fault regime than under a fault regime, and women will also be better off under a no-fault regime than a fault regime. Talk about having your cake and eating it as well.

There are several problems with NOW’s arguments, and with arguments in general about requiring fault to obtain a divorce. I’ll be discussing these in my next post. As well, this debate is part of a larger debate regarding appropriate social and legislative steps to take to reduce the divorce rate. I’ll discuss this in a future post as well.

 



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