Family Law – Law is Cool http://lawiscool.com The law school blog and podcast from Canada Wed, 30 Sep 2015 13:10:01 +0000 en-US hourly 1 https://wordpress.org/?v=4.7.6 1338880 Cohabitation and Alimony in the US http://lawiscool.com/2014/05/29/cohabitation-and-alimony-in-the-us/ http://lawiscool.com/2014/05/29/cohabitation-and-alimony-in-the-us/#comments Fri, 30 May 2014 00:19:23 +0000 http://lawiscool.com/?p=3575 by Valery Turyshev, Paralegal Student, Centennial College

 

How Cohabitation Impacts Alimony Payments By Scott Stadler, P.A. 

 

This article was written by a divorce and family Law Attorney Scott Stadle, who works  in Broward and Palm Beach counties, US. The author raises a very interesting issue in this article. How an amount of alimony is receiving by a former spouse from his or her ex spouse may be changed or eliminated by court if this spouse is cohabitating with a new partner. According to the lawyer this issue was determined in the court decision  when a former husband tried to repeal a court order that obliged him to pay S5000 a month to his ex spouse. His petition was based on a fact of his ex wife’s marriage. However, the court denied his petition because  the mock marriage was staged at Las Vegas Wedding Weekend. The marriage certificate was not given to his ex wife because it was not a legal marriage.

 

This law, originally proposed in 2005, has it’s roots from this case. The purpose of law is to determine whether a “supportive relationship” exists that includes the fact of contributing financially the person who receiving alimony and by that the living expenses are reduced.  The author enumerates several legal factors which  are taken into consideration by court when this legal case is filed by a former spouse.   For example,   have the former spouse and companion treated themselves out as a married couple by using the same last name, a common mailing address, calling each other in terms such as “my husband” or “my wife,” or in a manner that supports a permanent supportive relationship and other factors.

 

The lawyer concludes in his article that cohabitation can change alimony payments. This obligation to pay alimony is effective until it is changed by a court decision.

 

 

How Cohabitation Impacts Alimony Payments

  By Scott Stadler, P.A., online , http://www.hg.org/article.asp?id=32765

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Ethical walls and conflicts of interest http://lawiscool.com/2011/09/28/ethical-walls-and-conflicts-of-interest/ http://lawiscool.com/2011/09/28/ethical-walls-and-conflicts-of-interest/#comments Wed, 28 Sep 2011 16:42:12 +0000 http://lawiscool.com/?p=3220 When I meet with clients for the first time, I tell them about confidentiality. The moment the client opens his mouth, I explain, I lose the right to act for his adversaries. And most likely, that moment occurs even earlier: when the client walks through the door of my office or even schedules an appointment with me. Sometimes, I tell about an episode of The Sopranos where the mob boss saw every good divorce lawyer in town to conflict them out from representing his wife. This confidentiality burden is a good reason why lawyers charge for initial consultations (criminal or personal injury lawyers don’t because they usually never act for the Crown or insurance companies).

A recent case of a former unmarried couple’s battle in family court over their child is a good example of the importance of confidentiality (M.S.K. v. T.L.T., 2011 ONSC 5478 (CanLII)). It’s been a long fight with many motions and court orders since the couple’s separation in 2000. But last Tuesday, on September 20, 2011, Justice Wilson of the Superior Court issued her decision on an issue of confidentiality: she ordered that Lorne Wolfson and his firm be removed as the male party’s lawyer because Wolfson’s clerk worked for the female party’s lawyer before.

The reasons for Justice Wilson’s decision explain the test for conflicting a lawyer out of a case:

1) a previous relationship with the lawyer who is allegedly in a conflict of interest
2) the relationship must be sufficiently related to this case
3) the lawyer fails to prove not receiving any relevant confidential information in the prior case

The lawyer or his firm will be in a conflict of interest even if the relationship above was with the lawyer’s employee.

The purpose of this test is to ensure the public’s confidence in the justice system and in lawyers. The competing factor that the court must consider is the harm that losing a lawyer causes a litigant.

If branches (1) and (2) of the test above are true, the court will presume transfer of confidential information. The lawyer can still prevent the court from conflicting him out if he can prove there was no such transfer. But the lawyer’s burden of proof is heavy. A case called Marinangeli v. Marinangeli shows the weight of this burden: lawyer 1 who used to work for party A joined a firm that acted for party B. The firm erected an “ethical wall” around lawyer 1, and he swore in an affidavit that he didn’t discuss A’s file with anyone at the firm and didn’t even remember the file’s specific details. But lawyer 2 at the firm who acted for B failed to swear his own affidavit. The court found that the burden of the third step in the conflict test was on lawyer 2, and he failed to discharge it.

Justice Wilson found that Wolfson’s clerk had a previous relationship with the female party because the clerk used to work for the female party’s previous lawyer when he represented the woman in the same separation battle. The judge found that the clerk’s past relationship with the female litigant was sufficiently related to the current case. At that point, the judge presumed that the clerk was privy to the woman’s confidential information. Like in Marinangeli, the clerk filed her affidavit, but in contrast to Marinangeli, no ethical wall was erected around her. And Wolfson didn’t file his own affidavit. Not surprisingly, Justice Wilson found that Wolfson failed to discharge the burden of the third step of the test. Since Wolfson’s client didn’t give any evidence of harm he would suffer if the court removed Wolfson, the appearance of the justice system’s integrity sealed the fate of this motion, and Justice Wilson ordered that the law firm representing the male party be removed as his lawyers of record.

Pulat Yunusov is a Toronto litigation lawyer.

 


(Post sponsored by AdviceScene)

 

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Family Matters: When do Children Need Lawyers? http://lawiscool.com/2010/07/03/family-matters-when-do-children-need-lawyers/ Sat, 03 Jul 2010 22:17:23 +0000 http://lawiscool.com/?p=2739

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Family Matters: Fundamentals of Child Support http://lawiscool.com/2010/06/29/family-matters-fundamentals-of-child-support/ Tue, 29 Jun 2010 22:15:56 +0000 http://lawiscool.com/?p=2738

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Family Matters: Intro Episode http://lawiscool.com/2010/06/06/family-matters-intro-episode/ Mon, 07 Jun 2010 01:50:53 +0000 http://lawiscool.com/?p=2687

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The Making of “Family Matters with Justice Harvey Brownstone” http://lawiscool.com/2010/04/07/the-making-of-family-matters-with-justice-harvey-brownstone/ Wed, 07 Apr 2010 13:35:07 +0000 http://lawiscool.com/?p=2592 Last weekend I had the opportunity to participate in the filming of “Family Matters with Justice Harvey Brownstone,” a new online television show featuring Justice Harvey Brownstone of the Ontario Court of Justice.

Justice Brownstone was the first sitting judge to publish a law book intended for the general public, Tug of War: A Judge’s Verdict on Separation, Custody Battles and the Bitter Realities of Family Court.  Brownstone continues this outreach in the new television series, educating the public on issues like custody and child support.

Between the book and this new show, Brownstone has demonstrated that he is a maverick judge who is a pioneer that is unilaterally changing the public image of the judiciary.

In addition to instructional videos on issues of family law, the show will also feature notable personalities in the area of family conflicts.

Given Justice Brownstone’s charismatic personality, the show is expected to gather a significant audience among the public.  Lawyers are also considering it as a tool to educate their clients before entering protracted litigation.

The show was directed by Simon Norton Game and Dani Zaviceanu of IslandFX, and produced by AdviceScene, both of Victoria, B.C.  Filming occurred in downtown Toronto, with the assistance of Al Rosen of ARPrompt.com, and sound support by Brian Hanish.

The videos will be released on AdviceScene and FamilyMattersTV some time this summer.

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The Other Google Spot, and Florida Divorce Attorneys http://lawiscool.com/2010/02/08/the-other-google-spot-and-florida-divorce-attorneys/ http://lawiscool.com/2010/02/08/the-other-google-spot-and-florida-divorce-attorneys/#comments Mon, 08 Feb 2010 21:11:51 +0000 http://lawiscool.com/?p=2457 Google’s ad last night attracted quite a bit of attention.

Kenneth Corbin of Internet News said,

For Google, Super Bowl Sunday was something of a departure.

In the third quarter of the game, Google (NASDAQ: GOOG) aired a nearly full-minute ad promoting its search engine, marking one of the few television appearances for the company that rarely advertises and its first spot during a Super Bowl.

At it happens, the ad, “Parisian Love,” had been online for several months, posted on Google’s “Search Stories” page on YouTube where it has been viewed more than a million times.

Dan Goldgeier of AdPulp points out that so has this parody from Slate:

Florida divorce attorneys almost make the cut.  Is Google trying to tell us something?  Is Slate?

h/t Paull Young

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The Unrepresented: An Update http://lawiscool.com/2010/02/04/the-unrepresented-an-update/ http://lawiscool.com/2010/02/04/the-unrepresented-an-update/#comments Thu, 04 Feb 2010 20:12:25 +0000 http://lawiscool.com/?p=2445 A few weeks ago I posted a blog about the Unrepresented – those who can’t afford a lawyer and don’t qualify for legal aid. A few days ago I noticed an article in the Star about an initiative called justicenet that seeks to address this very problem. Through the efforts of Heidi Mottahedin, an internet-based  service has been launched that connects people in need with socially conscious lawyers who are willing to work at a reduced rate.

I think that journalist Carol Goar is absolutely right when she suggests that this effort will be insufficient to deal with the enormous structural problem facing our legal system; however, Heidi Mottahedin deserves high praise for her efforts, as do the lawyers who are sacrificing income to be a part of justicenet.

Meanwhile, Legal Aid Ontario is planning to open a Family Law Services Centre in North York. No doubt this will be similar to the Family Law Information Centre at the London Superior Court, where those in need can get information about the law, shelters, counseling and mediation services in the area etc..

Family Law is an area where the lack of affordable legal help is particularly acute, and although the legal assistance provided at these service centres is limited, it is quite helpful nonetheless. A brief consultation will ensure that matters that don’t belong in court are redirected while matters that do belong in court are refined to exclude extraneous issues. The result is a more streamlined court system. At a lecture at Western Law a few weeks ago, Justice Harper expressed his desire for every court to have a Family Law Information Centre. He left me with the impression that he is working behind the scenes to try to make it happen.

Apparently there are people in the legal community doing the hard work to bring about change. If enough people step up to the plate, who knows? Maybe the problem of the unrepresented can be wrestled to the ground without resorting to harsher measures.

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Collaborative Family Law v. The Hartshornes http://lawiscool.com/2010/01/30/collaborative-family-law-v-the-hartshornes/ http://lawiscool.com/2010/01/30/collaborative-family-law-v-the-hartshornes/#comments Sun, 31 Jan 2010 02:13:32 +0000 http://lawiscool.com/?p=2433 Divorce litigation appears to be so wasteful. Precious money, time and emotional energy get consumed in battles that could be resolved so much more quickly through negotiation; and processes that promote settlement out of court like collaborative family law seem so obviously to be the better way.

However, while researching a paper on prenuptial agreements I happened upon the trials and tribulations of the Hartshornes. This is an extraordinary story – They disputed a prenuptial agreement all the way to the Supreme Court of Canada then fought about how to apply the decision, who gets the matrimonial home, how much to pay for the other party’s share of the home and finally over costs. All told they went to Court nine times over ten years.

It occurred to me that a collaborative process would have been very dissatisfying to this most combative couple. Although the notion that litigation should be avoided seems like such a reasonable point of view, it could be very patronizing to push this view on someone who is experiencing a painful marital breakdown and genuinely wants to fight.

No doubt lawyers who practice CFL are keenly aware of this, but the Hartshorne story makes the point so abundantly clear. It’s a monument to post-matrimonial melee.  And to their credit, the Hartshornes fought with lawyers rather than fists … but I still scratch my head in amazement. Ten years in court to end a twelve-year marriage. Incredible.

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The Unrepresented http://lawiscool.com/2010/01/10/the-unrepresented/ http://lawiscool.com/2010/01/10/the-unrepresented/#comments Sun, 10 Jan 2010 22:28:53 +0000 http://lawiscool.com/?p=2373 A serious problem with the Ontario justice system that is overshadowed by the legal aid boycott is the enormous segment of the population that does not qualify for legal aid but can’t afford a lawyer. These are the unrepresented.

To understand the scope of the problem, one must appreciate that only those who earn approximately $8,000 a year or less qualify for legal aid.  This is a shocking figure.  Imagine a single mother with two children earning $16,000 who is embroiled in a bitter custody battle with a physically abusive dead-beat ex.  In Ontario, she must pay her own legal bills while supporting herself and her family.

A recent article in the Globe and Mail highlights the efforts by Bay Street heavy-weight Heenan Blaikie to help the unrepresented in high risk communities in Toronto.  Qualified candidates receive legal advice free of charge, the cutoff income for a family of four is $75,000 and associates can count their pro bono work as billable hours. This is generous and very commendable. Unfortunately this firm doesn’t have any family or criminal law lawyers, and this is where the need is most accute.  None the less, Heenan Blaikie deserves high praise.

I doubt very much that a concerted effort to encourage pro bono work would be sufficient to alleviate the problem. Something larger needs to be done.  Various members of the legal community are pushing for reforms, however a broader public awareness of the problem would definitely help to generate the political will necessary to bring about change.

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