Ontario Family Law Blog : Barrie Lawyer & Attorney Brian Galbraith : Simcoe County, Canada Divorce, Separation, and Collaborative Law

Suchada, also known as Mama Eve, did an excellent blog  about what to do when you don't have your children for the holidays, especially for the first time.

She is honest, insightful and offers hope about how to cope without your children. 

Divorce sucks. You have a choice how you respond to its challenges. You can make it worse or you can take Mama Eve's good advice and make the most out of a difficult situation. 

In time, it gets better. Truly... it does. Hang in there. 

Here is her blog: 

 Acouple of days ago my children left on their first trip without me.

 

My husband and I separated earlier this year (I will write more about this later, and yes, it’s one of the reasons I didn’t keep up with my blog for a while). While much of this has been difficult, nothing has been harder for either of us than being away from the kids for the holidays. I got them for Thanksgiving, and he took them to see his family in Ohio for Christmas.

It sucks.

However, I try to make the best of even the worst situations, so here goes: my top 5 ways to survive being away from your kids for the holidays.

1. Stay busy

There was no question that when my boys got tickets to Ohio, I was getting a ticket to somewhere. I didn’t want to stay at home by myself and be lonely. So I’m flying to Florida to see my parents, and I’ve packed my schedule full of activities I love to do. If I’m bored I know I will wallow in my loneliness and guilt, so my goal is to not let it happen. And on the positive side, it’s been more than three years since I’ve had time to myself anyway, so I’m going to take full advantage of it with things that aren’t easy to coordinate with two little ones – like scuba diving and sailing and some nighttime fun.

2. Be flexible

While I would love to get on the phone and Skype with my little ones during the times it’s convenient for me (when I wake up, before I have dinner, a quick minute between errands), I have to remember they’re busy with their dad and his family. They have their days filled up with relatives who haven’t seen them in years, and grandparents that want to play with them, and sightseeing trips to all kinds of exciting destinations. If I want to talk to them and see them, I need to remember to be ready for when they have a moment, and not count on them to squeeze in regular appointments during a special trip like this.

3. Make memories

Since I know it isn’t easy to coordinate regular phone calls and Skype sessions, I decided to port myself to where they are, on demand. I made video recordings of me reading a stack of their favorite books, and then posted them to YouTube, and also a video just to tell them how much I love them and miss them. It’s not the same as interacting with them, but at least if they get lonely they can see my face and hear my voice reading something familiar anytime, anywhere (thanks to laptops and smartphones). Another benefit is it allows them to keep up part of their bedtime routine in an otherwise unfamiliar environment.

4. Remember it’s not all about you

This was the hardest thing for me as this situation unfolded, but once I accepted it, it’s been the most freeing. My kiddos are having a big adventure with a capable parent, surrounded by a big family that adores them and is thrilled to see them for the holidays. I miss them terribly, and I want to cuddle with them and smother them with kisses, but they don’t need to know how painful this is for me. What’s going on between their dad and me is an adult problem, and my boys don’t need to feel the weight of it. While I would do anything to be with them, I can’t change it, and moping and reminding everyone of how sad I am doesn’t make it a better holiday for anyone (including me).

5. Find joy in what’s around you

While my ideal situation would be to spend the holidays with my boys, I can’t pretend there aren’t a lot of positives to my Christmas plans. I will be with my parents, and my sister and her family, in a beautiful location with many friends. I will be able to go on adventures that aren’t easy to coordinate with two little ones, and I have friends and family who love me, and are thinking of me and praying for me. I know not everyone is so fortunate when they’re away from their children, but I believe something good can be found in even the dreariest circumstances. Even if it’s rock bottom, it means better days are coming.

I hope you all have restful holidays with people that love you, and I will see you again in the new year. Merry Christmas and lots of love!

 

 

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Here is a link to a fantastic set of articles about children and divorce. It includes the following:

• What children of divorce need
• Age level reactions to loss
• 10 Commandments of Divorce
• Steps for Recreating a Strong Single Parent Family
• Four Types of Parental Relationships Post-Divorce
• Plus more..... 

It was put together by Rainbows which is a non-profit organization committed to helping children and teems grieve and grow after loss. Go to www.Rainbows.ca. 

Rainbows offers peer support for children of all ages who are grieving a loss. Since 1983, it has served over 2.5 million kids working through schools, faith communities, agencies and other organizations. There are 7 age-specific programs that really help kids express their feelings, learn and grow through their parents' divorce. It is an amazing program. 

I recently met the founder of Rainbows, Suzy Yehl Marta, at the Annual General Meeting of Rainbows Canada. She is an amazing person and Rainbows is a great organization. I am so proud to be on the Board of Directors for Canada. 

If you have children and you are going through a divorce, let Rainbows help them get through it. Learn more at www.Rainbows.ca. 

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If you are separating or divorcing, you have a story to tell. It's a story that starts with happiness and hopefulness and ends in sadness and separation. 

When I separated, I wanted to tell my story but, frankly, it seemed nobody wanted to hear it. My friends and family felt awkward and uncomfortable yet I needed to tell it - over and over and over again. Nobody wants to hear a broken record so I guess I can't blame them. My point is I felt all alone with my story. 

As a divorce lawyer, I hear stories from my clients every day. 

Do you have a story about your separation and divorce? Maybe you have friends and family who will listen. Another great way to tell your story is to journal it. Write it out as many times as you want.

Of course, you don't want to get stuck in your story. Eventually you need to let it go. I remember one person who told me the story of their divorce. They were very passionate, full of anger and visibly in pain. What was remarkable is that their divorce had occurred over ten years ago. Clearly, they were stuck in the past. They had not let go. 

Maybe you can try creating a time line of your life, highlighting the major events or turning points. Try to understand your mistakes, and your spouse's mistakes, and then forgive both your spouse and yourself.  When you are ready, shred or burn those stories so you can put them behind you. 

I suggest you find a Family Coach to help you. These kind people have training in therapy with a focus on the impact of divorce. They will listen to your story and help you move through it. 

I watched this movie over the weekend. It is all about the telling of the story of divorce. It's kind of sad but it also reminded me that we all have stories. It is worth watching. I hope you will somehow feel you are not alone. 

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So, you lived together in a common law relationship but now it has come to an end. Your friends say "When you separate, it's just the same as if you had been married. Everything is 50/50!"

This is an urban myth. In Ontario, it is more complicated. 

Of course, the starting point is that you keep the assets and debts in your name and your partner keeps the assets and debt in their name. The question is whether either of you have to share the value of your assets with the other. 

A recent decision of the Supreme Court of Canada (SCC) known as Kerr v. Baranow, radically changed how we look at the rights of common law partners upon separation regarding property division.

The SCC has now said that if there is a “joint family venture” there should be a fair division of the assets acquired during the relationship.

In lower court decisions since the SCC decision, if there is long term relationship, especially with children, and there has been an joint effort to work together for the betterment of both parties and an intermingling of the finances, there tends to be an equal division of the assets acquired during the relationship.

Although we don't have many cases decided since the decision at time of writing this blog, I think we will see a trend toward an equal division of property upon separation when the parties have been living together in long, stable relationship, especially if there are children, the parties have intentionally became financially intertwined and they worked collaboratively toward mutual goals. 

If you have lived together for a short period of time and you kept your finances and financial goals separate, you might not have a right to a share in any of your partner's assets at all. It may be that each party just keeps that which is in their own name and that jointly owned property is shared equally. 

Of course, your case may be in between the two extremes. You might have a right to some of your partner's assets.  It all depends on on the facts of your relationship whether you have a claim and the extent of your claim. 

Of course, another issue is spousal support. If you have lived together for more than 3 years or you have a child together and your incomes are different you may have a right to spousal support. Check out this article for more information. 

You are wise to seek the advice of a family law lawyer, just to get an idea whether you might have a claim to your partner's property when it is a common law relationship. It's murky water. 

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Are you over 50 years old and thinking about getting a divorce? You are not alone. More and more older couples are getting divorced. Deborah Moskovitch, author of The Smart Divorce writes an interesting blog in the Huffington Post about this phenomenon. She says we shouldn't be surprised because the reasons for marriage have changed and the stigma of divorce has diminished.

Deborah writes in her blog the following: 

 Women wanted someone to take care of them, men wanted to be in a position of power. Today, as more women become financially independent, looking to be taken care of is no longer what many are seeking. Rather, both women and men want an equal partnership in the relationship, and a best friend. Of course, there are many other factors resulting in the breakdown of the marriage, I don't want to over simplify it. But, if you consider how expectations surrounding marriage have changed over the last few decades, and the thought of no longer becoming a social outcast upon divorce, these are some influencing factors behind the increasing divorce rate amongst couples in long term marriages.

Of course, another factor is simply that as the baby boomer generation grows older, of course, the number of divorces of older people grows greater too. Baby boomers represent about 29% of the population of the United States. 

Deborah points out that the stigma of divorce has diminished which suggests it is an easier decision for older couples to make now than it was in the past. While it is true that the stigma has diminished, I have never met anyone, especially those in the baby boomer generation, who have taken divorce lightly. It continues to be an isolating, painful process. 

In the past, there was great admiration given to those couples who stayed married "till death". I feel that if two people can find a way to stay happy together for many years, it is wonderful but if they are miserable and "stick it out", I don't see what there is to celebrate. Frankly, I never understood why staying in a relationship that was terrible was worthy of admiration. What's the point? 

People change. The challenge is to find ways to change together and to give each other the room you need to grow and renew. This can take a lot of work and patience. Sometimes it just is impossible. 

My parents were married 54 years when death separated my father from my mother. I think they were happy together throughout their marriage. I hope to reach the same plateau. I look forward to 50 more years of matrimonial bliss. I'll be 99 years old! Wow! 

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Summer is fast approaching. Now is the time to begin to work on your summer access schedule. 

Some separated families have the summer schedule set for every summer. Mom will have certain weeks every year and Dad will have other weeks. There is very little negotiation or planing involved. This is a nice arrangement, if you can manage it. The disadvantage is that life is not static. Sometimes the opportunity to negotiate the children's schedule gives you a chance to accommodate the varying schedules and attend special events that arise each summer. 

For most families, there is a lot of negotiation and compromise involved in scheduling the summer schedule.

Here is how to do it. 

Find a clean calendar you can work with to develop a plan. 

First, write down any dates on the calendar  that are carved in stone. For example, if your holidays are determined by your employer and you can't change them, write those dates on the calendar. If your children have any activities that cannot be changed, write those down too. 

Next, write down the preferred dates or activities you would like to have but can live without. Use a different color so it is clear that these are not "carved in stone" dates. 

Then do the same for your ex spouse. If you know of any "carved in stone" dates for your ex, write them on the calendar. If you are aware of any preferred dates for your ex, write those down too. 

Now you just have to start carving up the time. Remember, you are trying to reach an agreement so you have to try to come up with something you think your ex spouse can live with too. You both can't get every favored date. So make some compromises. Share the favored dates. 

Get your ideas for the summer schedule over to your ex spouse as soon as you can. 

I always suggest that you send to your ex spouse a couple of options so they have something to consider. If you send just one choice, it may feel like you are trying to impose your wishes on your ex spouse. Put a short explanation for the dates you have chosen and the compromises you willing to make. You don't need a long narrative. Short, factual and clear is best. 

Google calendar is a free internet service and is an excellent way of sharing a calendar with your ex spouse. You could create one that is only accessible to you and your ex. You could put your suggested schedule for the children over the summer on it and then seek input from your ex. In fact, the Google Calendar is a great way of keeping track of busy kids all year long. You can get alerts when changes are made to it. 

When you get  a proposal for the summer schedule, respond in a timely way. Waiting to hear just causes unnecessary stress for everyone. I know trying to figure out the summer schedule is frustrating but just do it anyway. 

Once you have it nailed down, stick to it. Don't be changing it except in the event of some urgent arising. The idea of setting these dates in advance is to allow both parents to plan in advance. Last minute changes makes planning impossible. 

If you can't resolve it, don't just run off to court immediately. Court is too expensive, slow and you lose control over the outcome. Court will take the fun out of summer. I suggest you work with a mediator or a Family Coach to find a compromise that works for the whole family. 

One last thing... enjoy the summer time. This is when you have a great opportunity to spend some quality time with your kids. But don't forget the suntan lotion! 

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I interview people who went to Family Court and those who chose Collaborative Practice instead. Clearly, Collaborative Practice is the better way. I hope you enjoy the video.

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Myth 1: Divorce is Too Easy

I have helped hundreds of families through separation and divorce and can say that none of my clients felt that divorce was "too easy". It is a painful process. Everyone struggles through it - whether the marriage lasted 45 years or two weeks (I have helped clients through both extremes). Even those who initiate the divorce ruminate over their decision for about 5 years before they actually move forward and they too go through the same emotional stages of divorce. Divorce is akin to a death in the family. It is tough. 

Resolution of the issues is not easy either. If you end up in Family Court, it can take 1 to 3 years to achieve a resolution and many, many thousands of dollars. If you use the Collaborative Team process, resolution is faster and cheaper but there are always bumps in the road. Separation and Divorce is not easy. Make sure you have a good lawyer helping you. 

Myth 2: Women Always Win in Family Court

Ask any woman who has been in Family Court and they will tell you they don't feel like the "winner". Most women financially suffer more than their husbands after the marriage and end up with more responsibilities caring for the children. More work and less money. It does not feel like a victory. 

Myth 3: Men Can Never Get Joint Custody in Family Court

There is a growing trend among judges to start with the assumption that it is in the best interests of the children to order joint custody. Except in high conflict cases or where the parties cannot communicate effectively ever, joint custody is becoming the norm. Joint custody means you will make decisions related to the children together. It is not about the children's schedule with each parent. That's a different issue altogether.

Myth 4: Children of Divorce Always Suffer

Children suffer when they are in the middle of the conflict between their parents, regardless of whether the parents stay together or get a divorce. In fact, often the divorce leads to less fighting by the parents which creates a better circumstance for the children. Children of divorced parents often develop greater resilience to change. 

Myth 5: Marriage has Always Been Part of The Christian Tradition

It wasn't until the year 1215 that marriage became part of the church "traditions". In fact, at that time, divorce was prohibited by the divorce except in circumstances of church-sanctioned annulments. A great book that includes a history of marriage is "Committed" by Elizabeth Gilbert.

Myth 6: Collaborative Process is Only For Simple Cooperative Case

The Collaborative Process (CP) is the best way to resolve family law issues. Even the most difficult cases can be resolved using CP. The advantage to CP is that you have a team of professionals committed to achieving a resolution. The Family Coach can help navigate you through the emotional stages of divorce and help resolve issues related to the children. The Financial Specialist can help resolve the financial issues without a battle. The lawyers offer advice and have special skills to overcome impasse. Mechanisms can be put into place to balance the playing field between clients. On the other hand, Family Court often fuels the fires of discontent between the parties. Collaborative Process works for even the most difficult cases. 

Myth 7: Common Law Relationships and Marriage Are The Same

When you live together in a relationship akin to marriage (but you don't formally get married), you are common law. That does not mean you share equally in the division of property acquired during your relationship upon separation, just like if you were married. Common law couples have to prove that that they contributed to acquisition, preservation or maintenance of property to obtain an interest in it. It certainly is not automatic and in fact is an "up hill battle" in most cases. 

Myth 8: I Will be Vindicated in Family Court Will

Judges don't determine whose fault it was that the marriage ended. This is irrelevant to the judge. They are just looking at the facts of the case and making decisions based on the state of the law at the time. Even if your spouse committed adultery, it won't affect the equalization of property or the issue of spousal support or child support. It won't even affect the issues related to the children. 

Myth 9: If I Leave the House, I Can Be Charged with Abandonment

There is no charge of "abandonment" for leaving the home when you separate. If you leave your baby at the mall, that is abandonment and you will be charged criminally. I recommend that either you or your spouse should leave the home as soon as possible after it is determined that you are separating. Leaving the home avoids a potential escalation of the tension. It is best you have determined a schedule for the children before you leave so that you can tell the children, together, when they will see each of you. Remember to take with you your personal items and any agreed upon items. If there is some disagreement about the household content, walk through the home with a video camera so you can remember what is in the house and you can negotiate the items later. If there is no agreement regarding the children's schedule with each parent, you may want to stay in the home until resolution is achieved. In any case, there is no such charge as "abandoning the matrimonial home" in Ontario. 

Myth 10: Lawyers Make Things Worse

There is a new type of family law lawyers who really want to help you get a resolution of your family law issues in an cost-effective, timely, respectful, confidential manner so you can get on with your life. These lawyers are called Collaborative Practice lawyers and they help minimize the pain of your divorce.  They don't make things worse. They make them better. 

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Every parent going through a divorce wants to minimize the emotional pain and struggle for their children. The challenge is recognizing that your child  is suffering and then knowing what to do. Suzy Yehl Marta, an expert on children going through divorce, offers some advice.

Suzy, a divorced mother of three boys, gave up the security of her three jobs to do something she knew in her heart had to be done for our youth who were grieving a life-changing loss.  She established Rainbows, now the world’s largest nonprofit organization dedicated solely to helping families cope with loss. Over the last 27 years, Rainbows has served nearly 2.5 million youth throughout Canada, the United States and 17 countries. Suzy has conducted 100+ media interviews and her book, Healing the Hurt, Restoring the Hope, was published to help guide youth through times of divorce, death or crisis. For more information about Rainbows go to their Canadian website www.Rainbows.ca or the US site www.Rainbows.org. 

Suzy has answered some questions about how to support your children through your divorce. 

1. If a child’s performance at school begins to suffer, how can a parent best deal with this? How can it be prevented in the first place?

The school is a great resource for parents and too many are embarrassed to reach out and ask for help. Discussing the divorce with the child’s classroom teacher and school counselor will help create a safety net when a parent is not around. As a result, parents will be informed on how their child is doing academically and socially. Undoubtedly, your child will be hurting from the family changes and it will show up in school, but over time and with support, the child will incorporate the changes into their life. It is extremely helpful if kids have structured opportunities to talk with other kids who are experiencing the same changes in their families. A program like Rainbows offers support groups for kids in their communities at no cost to the family. 

2.  What are the main behavioral issues children going through a divorce may exhibit? How can these be identified quickly and be dealt with?

Denial, anger, confusion and fear are the main causes of behavioral issues. Each child has a different story and relationship with divorce and we can’t assume that each child will respond in a similar pattern. Behavioral issues can range from drop in grades, being alone more often, or withdrawing from friends, sports and activities that they were involved in earlier. Some kids do not want to sleep alone, they are clingy or their appetite might change. Teens and young adults with built-up grief might turn to drugs and alcohol to temporarily forget the reality of the divorce.  If these changes become extreme or long lasting, the parent is wise to seek out a counselor who understands grief and the impact of divorce on kids A parent must take the time to work through their own grief, but also make sure that their children have a program to turn to like Rainbows, where support and love is still given. Compassion and willingness to make time for a child are the two most critical elements of helping a grieving child. The divorce of one’s parents is woven into each child’s personal history. While the divorce may be the best decision for the health of the family, it takes a long time for the children to recover. Parents need to have patience and understand that divorce impacts their children twice as much as their mom and dad. When the divorce takes place, not only does one parent move out, but both parents change and often remarry which creates even more change for the kids.

3. Other insights/advice on the subject?

Each parent has the power to add to their children’s lives and can help them develop into the best adults possible. As a parent, no matter what the situation is, it is critical to be dependable; children will begin to feel comfortable enough to talk to a parent about the most important decisions. Life will never be perfect and there many things that parents can’t predict or control, but that does not mean that a parent cannot instill a wonderful life for their child. Spending quiet time with each child every day will continue to make the relationship stronger. The parent should listen without judgment, letting the child feel the care

4.  How can a parent help his/her child’s best friend during a divorce?

The best way to help a child’s best friend is through compassion for the family. All too often, divorcing parents and their kids are shunned. Reaching out to the parents and offering assistance helps them realize they are not alone. Also, inviting the little friend over to spend time with your child and family from time to time can give the parents alone time to process their own grief, while taking stress away from the child. If the relationship with the child is close, asking how they are doing or setting time aside to listen is appropriate. What the child usually needs is the continued friendship of your son or daughter, a fun place to hang out, and perhaps an adult they can trust and turn to if the need arises.

Thanks so much to Suzy for her insight and thoughts. I fully support the work of Rainbows and in fact I am presently serving on the Board of Directors of Rainbows Canada. All children whose children are divorcing can benefit from Rainbows.

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Are you dreading the idea of having to tell your children that their parents are divorcing? Do you want to minimize the pain and confusion for your children?

I remember the day when my ex and I told our children we were getting a divorce. It was a sad day indeed. We got some good advice from some experts before we did it so we did it right. Suzy Yehl Marta is an expert and has some great ideas.

Suzy Yehl Marta, a divorced mother of three boys, gave up the security of her three jobs to do something she knew in her heart had to be done for our youth who were grieving a life-changing loss.  She established Rainbows, now the world’s largest nonprofit organization dedicated solely to helping families cope with loss. Over the last 27 years, Rainbows has served nearly 2.5 million youth throughout Canada, the United States and 17 countries. Suzy has conducted 100+ media interviews and her book, Healing the Hurt, Restoring the Hope, was published to help guide youth through times of divorce, death or crisis. To learn more, please visit 

the Canadian website at www.rainbows.ca or the website for the head office at www.rainbows.org  or join Rainbows on Facebook and Twitter at www.facebook.com/rainbowsforkids and www.twitter.com/rainbowsforkids. 

I fully support Rainbows and recently was asked 

to serve on its Board of Directors for Rainbows Canada. The head office for Rainbows Canada is 

in Barrie so it was a perfect fit. I was happy to accept the invitation.

Suzy answers some questions about how best to tell your children about your divorce. 

1.      What is the best way to inform a child about divorce? How do you explain the situation to them; and should this differ according to age? How much information should you actually give, and what should you perhaps leave out?

Informing the Child:

As soon as the decision to separate or divorce is made, both parents need to sit down with their children to discuss how the family will be changing. Having both parents present 

makes a statement that while mom and dad will be living separately, t

hey are still your parents and family issues are being handled together. This may not be true initially, but this can offer comfort to the children. If one parent refuses to participate, then the other must be emotionally strong in front of the children, not accusatory of their estranged spouse, and able to answer the questions an

d respond to concerns. I recommend parents to begin the discussion in a familiar setting that is free from distractions.

While this is 

a painful conversation to have with children, keeping the situation from them instills fear of the unknown and makes them believe that the two people they trust the most in the world are not truthful with them.

When talking with children, parents should consider their ages. Younger children require fewer details. I recommend parents stress again and again that the divorce is not their fault, it is a grown up problem. Over time weave into conversations as it will take hearing this more than once for the children to really “hear” it in their minds and hearts.

As parents talk through the changes, they should ask if the kids have questions or concerns. If there are questions that cannot be answered at the time, tell them so. Most children and teens want to know the logistics of where everyone will be living, how their lives will change, and how holidays and other celebrations will be handled.   In most cases, those decisions will not be known at this time. As the divorce process continues, it is wise to ask the kids for their thoughts or wishes. This allows them to feel included.

Does age matter?

With any significant event, age might not always be able to define the emotional maturity of the child. It also depends on the family’s ability to communicate and the event itself. No matter the age, the two people they love most in world do not love each other anymore and are ending their couple relationship. It is critical to assure children that mom and dad will always be their parents.  

Here are a couple examples on how different age groups usually are affected by divorce:

Birth to age 5: It is difficult for this age group to understand what divorce is and how it will affect their future and family. If there are other families they know who are divorced and handling it well, it is OK to use them as an example. Since this age group cannot grasp the concreteness of the divorce, they will seemingly recover quickly. As they mature though, the questions and concerns will surface and need to be addressed.

6 to 12 years old:  Children in this age group can easily be caught in the middle and struggle with loyalty conflicts. They also fear abandonment because they realize they cannot take care of themselves.  

13 to 18 years old: At this point in a teenager’s life, they are trying to separate from their family, but at the same time need the security and stability that family structure provides. Their reaction becomes complex and remains right below the surface. Parents need to be aware that they must never use their children as their sounding board, companion or confidant.                                                                                 

2. What questions should parents be ready to answer when talking to their child about divorce?

There are three important questions that children usually have that often are unasked.

·         “Did I cause this?”

o   Even though the child is often times reassured that they did not cause the divorce, they still get that sense of guilt, especially when the arguments of divorced parents often revolve around the children. Children like to believe that their parents are perfect and any mistakes or failures that parents make are canceled out and children quickly blame themselves for the divorce.

·         “Who will keep me safe?”

o   A huge fear that children have is that everything that they depend on will crumple. From an early age, children have the idea that security comes from two people taking care of them. This fundamental anxiety affects all children, especially adolescents.

·         “Is this going to happen to me too?”

o   Children worry that history will repeat itself when they grow up and marry. It is really important that parents let their kids know that everyone at one point in their life will stumble, but it’s so important to just try again. Turning the conversation into a positive discussion about marriage is critical, especially for teenagers.

Thanks so much to Suzy for her insight and advice. I agree with everything Suzy has said and would add to it that it is important to let your children know it is okay to love both mommy and daddy and that they will have time with both parents.

Experts tell me that you should not blame the other parent for the divorce or explain the details of why the divorce is happening. If asked, just say “This is not something I am willing to share with you. Just know it was not your fault.” I understand telling your children the details could cause some serious emotional damage to your children.

Lastly, repeat, repeat, repeat. Your children might be overwhelmed at first so let it sink in initially and then repeat your message until they really get it. I remember my boys saying “Enough Dad. We get it. It’s not our fault, its okay to love both you and mom and we are going spend lots of time with each of you. Okay?”

So… at that point I realized they had received the message loud and clear… and I went back to nagging them about doing their homework, cleaning up after themselves and “watch your language young man!” …. the normal stuff.

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There are many misconceptions floating around in the general population regarding what is commonly referred to as “common law relationships” and about the legal rights and responsibilities that common law partners have with respect to one another upon relationship breakdown. If you are in one of these relationships it is important to know that they are not the same as a marriage and that your rights and responsibilities upon relationship breakdown are different than they would be if you were legally married. This is why in some cases it is a very good idea to enter into a cohabitation agreement with your partner in order to define your rights and responsibilities upon relationship breakdown in a way that is fair to you both, particularly if you own valuable property in your own name that you owned acquired on your own without the assistance of your partner.

The greatest misconception regarding common law partnerships is how it is defined. Many people seem to think that you are “common law” after only one year of cohabitation. While this is true under some legislation, such as the Federal Income Tax Act, for the purposes of the support provisions of the Ontario Family Law Act, spouse is defined as a person who is married or thinks they are married as well as:

either of two persons who are not married to each other and have cohabited,

(a) continuously for a period of not less than three years, or

(b) in a relationship of some permanence, if they are the natural or adoptive parents of a child

What this means is that a common law partner does not have any obligation to support his or her partner (i.e. pay spousal support) until they have lived together for three years or more or have a child together. There is also a limitation period imposed on spouses applying for spousal support under the Family Law Act of three years from the date of separation, whereas there is no corresponding limitation period on applying for spousal support pursuant to the Divorce Act, which you can only do if you are legally married.

Another common misunderstanding is that common law partners share property upon relationship breakdown the same way that married people do upon marriage breakdown. There are two very important distinctions in this regard that you should be aware of if you are living common law. Firstly, the home that common law partners reside in together is not considered to be a “matrimonial home”, and as a result a party does not have an automatic right to share in the equity of that home or possession of the home under Part II of the Family Law Act if he she is not a legal owner (i.e. registered on title). Furthermore, there is no automatic right to share in any of the property of the other person upon relationship breakdown unless you have a legal ownership interest in the property.

When two people are legally married and their marriage breaks down, their property is “equalized” by virtue of s.5(1) of the Family Law Act which states that, “when a divorce is granted or a marriage is declared a nullity, or when the spouses are separated and there is no reasonable prospect that they will resume cohabitation, the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them” . Equalization of Net Family Property is a process whereby a person’s net worth (i.e. assets – debts) at date of separation is compared to their net worth (assets – debts) at date of marriage. The change in each person’s net worth as of date of separation is their “Net Family Property”. The person who’s net worth has increased the most over the span of the marriage is ordered to pay half of the difference of the parties’ net worth’s as an equalization payment. However, the definition of spouse in Part I and II of the Family Law Act that deals with property and matrimonial homes, includes only persons who are legally married, or who thought that they were legally married. It does not include common law partners. This is why there is no automatic right for common law partners to share in the value of the other’s property upon relationship breakdown.

The fact that common law partners are treated differently than married partners when it comes to property division was challenged by a women in Nova Scotia, (where they have very similar family legislation that does not include common law partners in the property provisions) as being contrary to s.15(1) of the Charter of Rights and Freedoms that guarantees equality under the law. The Supreme Court of Canada surprised everyone by finding that the differential treatment was not discriminatory. The reasoning given for this is that:

Although the courts and legislatures have recognized the historical disadvantages suffered by unmarried cohabiting couples, where legislation has the effect of dramatically altering the legal obligations of partners, choice must be paramount.  The decision to marry or not is intensely personal.  Many opposite sex individuals in conjugal relationships of some permanence have chosen to avoid marriage and the legal consequences that flow from it.  To ignore the differences among cohabiting couples presumes a commonality of intention and understanding that simply does not exist.  This effectively nullifies the individual’s freedom to choose alternative family forms and to have that choice respected by the state.

\Nova Scotia (Attorney General) v. Walsh, [2002] 4 S.C.R. 325, 2002 SCC 83

In other words, the Supreme Court said that people who are living common law have chosen not to marry and many have purposely chosen not to take part in the property division that applies to married couples. Based on the number of people I have spoken to that think that common law people are treated the same upon relationship breakdown as married people, I suspect that they did not really chose not to share in their partner’s property upon relationship breakdown.

There are ways of making a claim against a common law partner’s property using “equitable relief” claims such as constructive and resulting trust claims. The essential principle behind these claims is that if you have lived together for many years and have contributed both emotionally and financially to the other party’s property, it would unjustly enrich the party who is the sole owner of the property to allow him/her to walk away from the relationship without compensating the non-owner spouse for their efforts. These claims are very difficult to make out and do not guarantee you 50% of the value of the property in question.

There is one respect in which common law and married persons do not differ, and that is where it comes to their rights and responsibilities with respect to their children. In fact, even if you have never cohabited or married, you are legally responsible to support your children and have equal rights to custody and access of your children. This is thanks to the Children’s Law Reform Act that sought to even out the playing field as between children who were “legitimate” and children who are “illegitimate” so as to ensure that they are equally supported and cared for by both parents.

Nevertheless, if you are in a common law relationship or are contemplating living with somebody you should consider consulting a lawyer to discuss the possibility of negotiating a cohabitation agreement with your spouse that would protect you both in the event of relationship breakdown. Nobody wants to think about separating, but the sad reality is that common law relationships are generally less stable and of shorter duration than marriages and there is a good probability that the relationship will end at some point. You owe it to yourself and to your children to plan appropriately for the future so as to ensure that you will be financially secure with or without your common law spouse.

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WHAT IS PARENTAL ALIENATION AND WHY IS IT SO BAD?

There is an old African proverb that states “when two elephants fight it is the grass under their feet that suffers”. Similarly, when parents fight over custody and access of their children after a separation it is the children that suffer. In many cases the parents are not even aware of the effect that their custody battle is having on their children and they do not intend to hurt their children. Nevertheless, research shows that children who have lived through a high conflict divorce have a greater tendency to develop mental health issues, addiction issues, are less likely to obtain a post secondary education and have a whole host of other social problems that develop later on in their lives as a result of their negative experience.

In some of the more extreme high conflict custody cases, a dynamic develops whereby one of the parents sets out to sever the children’s ties to the other parent. The American psychiatrist who first coined the phrase “parental alienation” described it as, “a disorder that arises primarily in the context of child custody disputes. Its primary manifestation is the child’s campaign of denigration against a parent, a campaign that has no justification. It results from the combination of a programming parent’s indoctrinations and the child’s own contributions to the vilification of the target parent.”

Some of the symptoms of Parental Alienation Syndrome (PAS) which will be added as a diagnosis under the DSM in 2010, are as follows:

The alienated child:

·         Sees one parent as all good and other parent as all bad;

·         Appears to really hate “bad parent” and hates their family and even their pets

·         Feels no guilt about hating parent or treating him/her badly

·         When they talk about alienated parent appear to be putting on a show – affect does not match their words

·         Worries about non alienated parent and is protective of them

·         Blames alienated parent for the divorce

The alienating parent:

·         Allows child to make decisions regarding access

·         Does not encourage access or contact with alienated parent and gives child silent treatment after access visits

·         Tries to delete memory of other parent by taking away pictures of other parent and not speaking about them.

·         Will not let alienated parent come to door or speak with them alone- treats alienated parent as if he/she is dangerous

·         Does not tell alienated parent about special events or school activities involving child

·         Withholds gifts, mail and voice messages from other parent and will not tell child about it.

·         Rewrites family history sometimes to involve stories of sexual and physical abuse by other parent

·         Involves child in litigation by reading court documents to him/her and or using child as messenger

·         Puts child in position where he/she is forced to choose between their parents

As with most things in life, there is a wide spectrum of severity and the blame usually does not fall on one person’s shoulders only. The “alienated parent” often contributes to the problem by making the child feel guilty, rejecting the child, acting aggressively towards the child or to the other parent or by simply giving up hope and abandoning the child. Also, some children are estranged from a parent prior to the separation and it only gets worse after wards. The alienating parents often act the way they do because they feel that they have been abandoned by the other parent and are very hurt by the separation. They themselves may have been abandoned or abused as children.

Richard Gardner and some of his followers are of the view that the only cure to this problem is to take the child out of the custody of the alienating parent, subject the child to intense counseling to de-brainwash the child and then place the child in the alienated parent’s custody. 

Not surprisingly, there are many family court judges who do not accept that this is the only solution to the problem. Instead, they try to affect a change in the dynamic by making access orders enforceable by the police, making a parent who is withholding access pay a fine or even ordering that the alienating parent go to jail if they breach the access order again.

In the US there are some residential programs available for families with this problem. In Canada, there are therapists who specialize in assisting families with this problem, but there are no residential programs that I am aware of.

In my view the essential thing is to prevent the alienation from happening in the first place. This can be done by identifying the early symptoms and ensuring that there is an access plan in place very shortly after the separation that is strongly enforced by the court. It is also essential that all parties involved get counseling to identify the issues that are at the root of the problem and bring them to the surface and that professionals involved in helping parents who are separating and divorcing are trained to recognize the early symptoms.

There have been recent amendments made to the Children’s Law Reform Act to reinforce the idea that maximum contact with both parents is generally in the best interests of children and that parents have an obligation not only to allow access, but to facilitate that access.

If you are fearful that this dynamic may be occurring in your family, please don’t wait for things to get better. Parental alienation is like cancer- if left untreated it will grow and kill your relationship with your child. Children in families where there is this dynamic are “victims” of abuse and end up exhibiting the same symptoms as children who are physically and sexually abused by their family members. You have a responsibility to protect your children from this abuse, as do all the professionals who are involved in your case.

The new provisions of legislation in Ontario are as follows:

34 (2) If the court is satisfied that the responding party wrongfully denied the moving party access to the child, the court may, by order,

(a) require the responding party to give the moving party compensatory access to the child for the period agreed to by the parties, or for the period the court considers appropriate if the parties do not agree;

(b) require supervision as described in section 34;

(c) require the responding party to reimburse the moving party for any reasonable expenses actually incurred as a result of the wrongful denial of access;

(d) appoint a mediator in accordance with section 31 as if the motion were an application for access. R.S.O. 1990, c. C.12, s. 83.

Period of compensatory access

(3)  A period of compensatory access shall not be longer than the period of access that was wrongfully denied. R.S.O. 1990, c. C.12, s. 83.

What constitutes wrongful denial of access

(4)  A denial of access is wrongful unless it is justified by a legitimate reason such as one of the following:

1. The responding party believed on reasonable grounds that the child might suffer physical or emotional harm if the right of access were exercised.

2. The responding party believed on reasonable grounds that he or she might suffer physical harm if the right of access were exercised.

3. The responding party believed on reasonable grounds that the moving party was impaired by alcohol or a drug at the time of access.

4. The moving party failed to present himself or herself to exercise the right of access within one hour of the time specified in the order or the time otherwise agreed on by the parties.

5. The responding party believed on reasonable grounds that the child was suffering from an illness of such a nature that it was not appropriate in the circumstances that the right of access be exercised.

6. The moving party did not satisfy written conditions concerning access that were agreed to by the parties or that form part of the order for access.

7. On numerous occasions during the preceding year, the moving party had, without reasonable notice and excuse, failed to exercise the right of access.

8. The moving party had informed the responding party that he or she would not seek to exercise the right of access on the occasion in question. R.S.O. 1990, c. C.12, s. 83.

Motion re failure to exercise of right of access, etc.

(5)  A person in whose favour an order has been made for custody of a child and who claims that a person in whose favour an order has been made for access to the child has, without reasonable notice and excuse, failed to exercise the right of access or to return the child as the order requires, may make a motion for relief under subsection (6) to the court that made the access order. R.S.O. 1990, c. C.12, s. 83.

Order for relief

(6)  If the court is satisfied that the responding party, without reasonable notice and excuse, failed to exercise the right of access or to return the child as the order requires, the court may, by order,

(a) require supervision as described in section 34;

(b) require the responding party to reimburse the moving party for any reasonable expenses actually incurred as a result of the failure to exercise the right of access or to return the child as the order requires;

(c) appoint a mediator in accordance with section 31 as if the motion were an application for access. R.S.O. 1990, c. C.12, s. 83.

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Why should you refer your divorcing clients, patients and friends to a Collaborative lawyer?

Here is why….

Doctors, Dentists, Health Care Practitioners: You know that a divorce battle is one of the most stressful events in a patient's life, especially for their children. You give your patients the gift of a less stressful way to divorce, promoting good health,  if you refer them to a Collaborative lawyer. You will be a hero.

Marriage counselors, therapists: You know the destructive impact of divorce battle on families, especially children. You are giving your clients the gift of a healthier way of untangling their relationships with better prospects for a healthier relationship post-separation when you refer your clients to a Collaborative lawyer. You will be a hero.

Non-Family Law Lawyers: You know that a good referral to a client will solidify their trust in you. You can't give a better referral than to a Collaborative lawyer who uses a process that costs less, results in better settlements, is less destructive and is faster than the court system. You will be a hero.

Accountants, bookkeepers, financial planners, bankers: You know that a divorce battle can result in the destruction of the wealth you helped your clients accumulate and tear apart relationships between business partners. You give your clients the gift of a faster, more cost-effective way of resolving divorce issues thus preserving your client's wealth when you refer them to a Collaborative lawyer. You will be a hero.

Real estate agents, mortgage brokers: You know how difficult it is to facilitate a sale or purchase of a home when your clients are in a court battle. You give your clients the gift of a smoother resolution of divorce issues, including those related to the sale of their home, by referring your clients to a Collaborative lawyer. You will be a hero.

Priests, Rabbis, Ministers: You know that divorce is a reality for many in your congregations and can bring out the worst in them, leading them away from their faith. You give the members of your congregation the gift of a way of resolving divorce related issues that is more peaceful, respectful and dignified when you refer them to a Collaborative lawyer. You will be a hero.

Hairdressers, bartenders, personal trainers: You know all the stories of destruction and unimaginable costs to individuals, families and children by divorce battles. You give your clients the gift of a less destructive way of separating when you refer them to a Collaborative lawyer. You will be a hero.

Friends, family, acquaintances: You know the pain and costs of a divorce battle. You are giving a gift of a better way to resolve separation issues when you refer someone to a Collaborative lawyer. You will be a hero.

Heros... remember to make sure the lawyer you refer your clients, family and friends to actually has training in Collaborative Practice. Not all family law lawyers have the special training. They might say they are “collaborative” meaning they try to settle their cases before trial. Special skills, an intense commitment to settlement and an in depth knowledge of the process are necessary to be a true Collaborative Lawyer and that comes with training. Our association lists those with training in Simcoe County. The international association, the IACP, also lists criteria for practicing members.

Refer someone to a Collaborative lawyer.

Be a hero.

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