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4 Things You Need to Tell Your Lawyer When Filing For a Divorce
This guest article is written by Kat Sanders, who regularly blogs on the topic of court reporter school online at her blog Court Reporter Schools. She welcomes your comments and questions at her email address: katsanders25@gmail.com.
It’s never easy to think of a divorce and plan the process, especially when you’re still emotional about it. You tend to use your heart rather than your head to make decisions, and this could end up hurting you and being detrimental to your best interests in the long run. When you’re filing for a divorce, you need to try and keep it as open and on the table as possible in order to avoid messy and long drawn out trials, but if you’re unable to reach a consensus with your spouse, it’s best to hire a lawyer who is well versed in dealing with divorce cases.
Once you decide to retain the services of an attorney, you need to make sure that you put all your cards on the table. In short, a few of the things you definitely need to be open with your lawyer are:
- The truth about the divorce: If your divorce has come about because of your infidelity or misbehavior, it’s best to tell your lawyer about it rather than to blame your spouse for all your marital troubles. Come clean about your affair without leaving anything out.
- Any skeletons in your closet: If there are any mistakes or misdemeanors (of the extra marital kind) in your past, you need to tell your lawyer about every single detail because you can bet your last dollar your spouse is going to be spilling all the facts and then some more to their attorney. Your attorney needs to know what kind of missiles he or she is likely to face in open court.
- Your relationship status with your kids: If you have children and are filing for sole or joint custody or asking for visitation rights, you need to tell your lawyer how close you are to your kids. The nature of your relationship could decide how the judge rules, so your attorney will need to take this aspect into consideration before arguing in court on your behalf.
- The presence of a significant other in your life: If you are seeing someone else on a regular basis or are in another serious relationship, it could hamper your chances of an amicable divorce or even one that does not rip you into pieces in court. It’s one thing to be involved in a fling that ended the marriage, but totally something else to be in a serious extra-marital relationship. Alimony and property division could be affected because of this factor.
The Post-Mortem Legal Battles of Michael Jackson
When the king (of pop or otherwise) dies, all the courtiers usually start scheming on how to get pieces of his estate.
Brian Oxman, the family’s lawyer, said,
We will have to see how that plays out in a court of law. I suspect that the death of Michael Jackson is only the beginning of the legal battles over not only his property, but also his children.
Jackson supposedly recorded over 100 songs for his kids that were only supposed to revealed after he died.
But after all of his debts are paid, there may not be much scraps left to fight over. His death may signal an end to confidentiality agreements, especially around his legal settlements, and there will be a lot more stories revealed.
Then there are the disputed reports that he converted to Islam recently. Some have indicated that removal of his body wrapped in white sheets may signal an Islamic funeral, something that some of his family and friends may object to given denials by his publicists of the conversion.
One thing that is not disputed is that his music reached the entire world, and everyone will be watching the trials to see what happens.
Your Facebook Status May be Used Against You in a Divorce
Next time think twice about breaking up with your partner on Facebook, or having too much fun when you’re in an unhappy marriage.
Gerry Oginski of the TechnoLawyer Blog gives Lee Rosen thumbs up for this well produced, educational video.
But it’s not just the clients who need to watch what they are saying these days. Brenda Hollingsworth and Richard Auger, the Ottawa Lawyers, said yesterday,
Noticed several people tweeting about their legal advice today, especially in family law cases. Bad idea.
The Ontario Bar Association is hosting an event next week on Evidence for Family Lawyers.
Speakers and chairs include The Honourable Mr. Justice Craig Perkins, Lorna M. Yates, Caroyn J. Jones, Jeffrey H. Wilson, Lorne Glass, Frank A. Mendicino, Pamela M. Krause, Thomas C. Dart, Burgar, Avra Rosen, Melanie Russell, Dr. Barbara Fidler, Child Psychologist, Harold Niman, Esq., Stacie R. Glazman, Andrew Feldstein, Jennifer A. Treloar, and Michael J. Polisuk.
There is even a judges panel, which includes The Honourable Mr. Justice R. John Harper, The Honourable Madam Justice Cheryl Robertson, The Honourable Madam Justice Kendra Coats, and The Honourable Mr. Justice Stanley B. Sherr.
Let’s hope someone brings these issues up in discussion.
One-Stop Shop Legal Services in Ontario
The Ministry of the Attorney General of Ontario announced today a new website and hotline to provide legal information.
Information is available on:
- Finding a lawyer
- Tickets and fines
- Lawsuits and disputes
- Family and criminal law
- Human rights, and
- Wills and Estates
The site provides services in 23 languages to reflect the increasing cultural diversity of the Province, and the hotline has up to 170 languages. Minority access to legal information is a concern that has arisen in many different contexts.
Attorney-General, Chris Bentley, said,
Ontarians now have a place to start when they need basic legal information about our justice system. Justice Ontario is the one-stop destination that puts answers to your basic questions about the legal system just a click or a phone call away.
The site is part of broader strategies to reform the Civil and Criminal system.
The Access Partnership that helped develop the site includes representation from the following organizations:
- Law Society of Upper Canada
- Ontario Bar Association
- Advocates’ Society
- County and District Law Presidents Association
- Ontario Trial Lawyers Association
- Legal Aid Ontario
- Community Legal Education Ontario
- Pro Bono Law Ontario
First They Came for the Polygamists…
Susan Drummond, professor of family law at Osgoode Hall, finally weighed in yesterday on the polygamy issue.
She claims that if fully prosecuted many individuals, including herself, would be guilty.
There is a general rumbling afoot in Canada about laying polygamy charges against individuals within certain religious communities across Canada. But there are some things Canadians need to know about our Criminal Code’s “Offences Against Conjugal Rights” before we can be sure we really want to open that particular Pandora’s box. One thing to ask may be whether you, or anyone you care about, has committed one of these indictable offences carrying liability of up to five years in prison. In the spirit of the poem “They came first for the communists…,” let me say that I have committed polygamy.
It’s the End of the World as We Know It
The rumblings have included other law faculty, and Prof. Tom Flanagan of the University of Calgary who said,
The small cult of fundamentalist Mormons will not bring down the social order by itself, but Canada is now accepting substantial immigration from Africa and the Middle East, where polygamy is widely practised.
If we don’t enforce our existing laws against polygamy, we will jeopardize the fundamental institution of our free society and constitutional government.
To the contrary, Drummond responds. She points out one of the many absurd consequences of doing so,
Catholics can never divorce religiously – and yet they can (and do) divorce and remarry civilly. Those who have done so (along with other Canadians who have not put an end to their religious marriage before remarrying civilly) are both in multiple conjugal unions and multiple forms of marriage. So, should the state decide to sweep up all those polygamists, many of us might be astonished at how many of our acquaintances and loved ones would be carted away.
You Heard of Bush’s Brain – Here is Harper’s
Just a reminder – Tom Flanagan is often called the man behind Stephen Harper. According to the Golden Lake Institute, the philosophy he ascribes to is based on the writings of Leo Strauss,
Strauss was very pre-occupied with secrecy because he was convinced that the truth is too harsh for any society to bear; and that the truth-bearers are likely to be persecuted by society — specially a liberal society — because liberal democracy is about as far as one can get from the truth as Strauss understood it.
They Even Came for Rita
And here’s some more truth – the RCMP spied on Rita MacNeil and other feminists during the ’70s.
It has long been known that the now-defunct Security Service spied on a vast array of groups — from trade unionists to student associations — during the Cold War with the aim of gauging the potential threat from left-wing subversives, possibly linked to hostile foreign powers.
As any student of COINTELPRO knows, Big Brother persecutes the Left, not the Right.
Laws Do Signal Values (aka Liberal Fascism)
Robert Janes, a litigation lawyer in B.C. (originally from Newfoundland) who writes on Thoughts from the Western Edge, said,
Professor Flanagan is right though that ultimately it is the role of our laws to signal our values and to reinforce the values we want to encourage. This means though that there is a role — contrary to what most of the right wing would argue –for the state to define preferred values and so to shape society. Professor Flanagan is also right in advocating move away from patriarchy — which marginalizes half of humanity — but this argument should be applied first and foremost to the laws which are having the greatest effect on our society. Professor Flanagan’s arguments are therefore to my mind arguments against all laws that reinforce inequality between men and women and entrench outdated religious notions of the proper ordering of society. The next time you hear a call from the right wingers for the imposition of abortion bans; support for publicly funded religious education; the repeal of laws designed to promote equality (ie the Human Rights Codes and associated tribunals)– just remember Professor Flanagan.
So first it’s the polygamists, then the gays, then immigrants from Africa and the Middle East, and then maybe people who refuse to procreate…
Talula Does The Hula From Hawaii No More
Lesbians of the world can rejoice – they will not have to change their names for now.
But this young girl from New Plymouth, on the North Island of New Zealand will.
Talula Does The Hula From Hawaii (sic) is in the middle of a custody dispute between her parents. The court has assumed guardianship over her, and has ordered that she must change her name.
Talula Does The Hula From Hawaii was so embarrassed about her name growing up that she wouldn’t tell anyone what it was – going by “K” instead.
The Kiwis apparently have a fascination with strange names, as the judge commented on a growing trend in the country.
Names that have been allowed:
- Violence
- Number 16 Bus Shelter
- Midnight Chardonnay
- Benson and Hedges (twins)
Names that have been disallowed:
- Yeah Detroit
- Stallion
- Twisty Poi
- Keenan Got Lucy
- Sex Fruit
- Fat Boy
- Cinderella Beauty Blossom
- Fish and Chips (twins)
Last year when one New Zealander couple unsuccessfully named their child 4Real, they opted for Superman instead. Another couple in Sweden went for Metallica.
Some countries ban certain names outright, like Adolf Hitler and Bin Ladin in Germany. Others, such as France, force parents to choose from a pre-selected list. But in America, nearly anything goes.
Dalton Conley Chairman of the New York University Sociology Department said,
You can’t use a four letter word that I wouldn’t use in this interview anyway, and other than that you’re free to do what you want. That’s part of the first amendment right to free speech here in America.
Celebrities seem to be the worst offenders, Gwyneth Paltrow naming her baby Apple, and Comedian Penn Jillette (the guy from Penn & Teller) calling his daughter Moxie Crimefighter.
But then when your parents are celebrities, who cares if the other kids make fun of you?
However, Americans are probably the only ones to capitalize on names for profit. Gas prices are so high in Orlando, Florida that David Partin promised to name his child Dixon Willoughby Partin after radio show hosts to win a $100 gas card.
They sell their kids cheap in Florida it seems.
Program Director at WHTQ-FM, Greg Stevens, said,
(His wife said) this is his problem to explain when the child is older.
The Independent cites some other notable name changes in recent history:
Grounded 12-yr-old Appeals her Punishment and Wins
A 12-year-old Quebec girl who was grounded by her father appealed her punishment to the Quebec Superior Court, according to the AFP.
The girl was grounded for disobeying her father’s orders to stay off the Internet after she was caught chatting on websites he had blocked. She was also apparently posting “inappropriate pictures” of herself online. The punishment: she would not be allowed to go on an upcoming school trip.
Justice Suzanne Tessier today agreed with the girl’s position that the punishment meted out by her father was too harsh. The court overturned the grounding.
Kim Beaudoin, the father’s lawyer, is appealing the decision.
“She’s a child,” Beaudoin told AFP. “At her age, children test their limits and it’s up to their parents to set boundaries.”
“I started an appeal of the decision today to reestablish parental authority, and to ensure that this case doesn’t set a precedent,” she said. Otherwise, said Beaudoin, “parents are going to be walking on egg shells from now on.”
Thus begineth a new era in family law litigation.
I didn’t realize that an appellate system was in place for parents’ rules. The more you know!
California becomes second U.S. state to legalize gay marriage
This morning the California Supreme Court ruled that the state’s laws restricting marriage to heterosexual couples were unconstitutional. Following a close 4-3 decision, California has become just the second state in America (after Massachusetts) to legalize gay marriage .
The lengthy (174 page!) decision entitled “In re Marriage Cases” represented a consolidated appeal from six cases. You can read the full text of the decision here.
Californian homosexual couples were already entitled to virtually all of the same benefits available to straight married couples under the Domestic Partnership Act. The court, however, determined that the language and statutes governing “domestic partnerships” did not go far enough. The definition of marriage in California would no longer exclude homosexual couples.
At p. 120, George C.J. (Kennard, Werdegar, Moreno JJ. concurring) wrote:
… [W]e determine that the language of section 300 limiting the designation of marriage to a union “between a man and a woman” is unconstitutional and must be stricken from the statute, and that the remaining statutory language must be understood as making the designation of marriage available both to opposite-sex and same-sex couples.
In an interesting dissenting opinion (for fans of the “legitimacy of judicial review” debate), Baxter J. wrote that the majority had engaged in “legal jujitsu” and had been overzealous in interpreting the constitution. He was of the view that there was nothing implicit or explicit in the constitution which allowed the recognition of marriage between a same-sex couple. Therefore, he wrote, the majority had erred in viewing the progressive changes made by the legislatures in recognizing domestic unions as creating an implicit constitutional principle that marriage should extend to homosexual couples.
At p. 5 of the dissent, Baxter writes:
Recent years have seen the development of an intense debate about same-sex marriage. Advocates of this cause have had real success in the marketplace of ideas, gaining attention and considerable public support. Left to its own devices, the ordinary democratic process might well produce, ere long, a consensus among most Californians that the term “marriage” should, in civil parlance, include the legal unions of same-sex partners.
But a bare majority of this court, not satisfied with the pace of democratic change, now abruptly forestalls that process and substitutes, by judicial fiat, its own social policy views for those expressed by the People themselves.
In any event, gays and lesbians in California have won a significant civil rights victory today in California. Following the 30 day suspension period, they will be legally allowed to marry in that state.
Conservative groups must now petition for an amendment to the state constitution if they wish to challenge the court’s decision. According to the New York Times, these conservative groups have already gathered over a million signatures supporting a constitutional ban on gay marriage. The initiative will likely be put to the voters in November. Interestingly, despite vetoing two attempts by the legislature to recognize gay marriage, Gov. Schwarzenegger has said that he will not support the constitutional ban initiative.
Religious Promises may be Binding
The new Supreme Court Case ruling, Bruker v. Marcovitz, has some interesting implications for Jewish family law.
The case was considered by The Lawyers Weekly to be the “most timely and topical” of all the appeals reviewed by the court last year.
Background 
In Judaism, a couple can only get a divorce when the man issues a sefer k’ritut, or “cutting off scroll,” more commonly known as a get.
The procedure was actually instituted to safeguard against reckless divorce, but has the consequence of leaving initiation of divorce to the husband.
To circumvent this, many Jewish couples create a contract prior to marriage stating that the woman can obtain a get on demand if the circumstances require it.
The parties in this case were married in 1969, and received a decree nici for divorce in 1980 that was finalized the following year.
The original contract stipulated that in the case of divorce they would appear before a Jewish Tribunal (Beth Deen) to receive the get. However, the defendant thereafter refused to issue the traditional get, claiming it was being used to prevent him from seeing his children.
The plaintiff still considered herself religiously married, and therefore chose not to remarry and did not receive a get until 1995, after she was no longer of childbearing age. Any children she did have during the interim would be considered by her to be illegitimate.
She sought damages in 1989 for $500,000 in breach of contract, which thereafter was increased to $1,350,000 in 1995 to reflect additional damages for lack of companionship.
The husband sought protection under s. 3 of the Quebec Charter,
Every person is the possessor of the fundamental freedoms, including freedom of conscience, freedom of religion, freedom of opinion, freedom of expression, freedom of peaceful assembly and freedom of association.
The Ruling
The court first commented on the religious nature of the case in a secular court. Abella, J., herself a Jewish woman, said,
The fact that a dispute has a religious aspect does not by itself make it non‑justiciable. Recognizing the enforceability by civil courts of agreements to discourage religious barriers to remarriage, addresses the gender discrimination those barriers may represent and alleviates the effects they may have on extracting unfair concessions in a civil divorce. This harmonizes with Canada’s approach to equality rights, to divorce and remarriage generally, to religious freedom, and is consistent with the approach taken by other democracies.
The court found that the contract was between two conscionable parties represented by counsel and intended to be legally enforceable, and that awarding of damages would not infringe on relgious freedoms:
The court is not asked to determine doctrinal religious issues, and there is nothing in the Civil Code preventing someone from transforming his or her moral obligations into legally valid and binding ones…
Any impairment to the husband’s religious freedom is significantly outweighed by the harm both to the wife personally and to the public’s interest in protecting fundamental values such as equality rights and autonomous choice in marriage and divorce. These, as well as the public benefit in enforcing valid and binding contractual obligations, are among the interests that outweigh the husband’s claim.
Dissent, Critique, and Commentary
Yu-Sung Soh, though supporting the majority decision, summarizes the dissent,
…the dissenting minority took a more categorical approach in refusing to intervene in private disputes of a religious nature where there is no violation of a rule recognized in positive law. The dissent held that since there had been a civil divorce between the parties, there were no legal barriers for the ex-wife in remarrying and having legitimate children. Only her religious rights as a result of religious rules were infringed and this was not a matter that the courts should determine.
The dissent essentially stated that the damages in this case were self-inflicted by the plaintiff, though admittedly based on religious conscience.
Russ Brown of UofA offered his critique,
My first impression is that I am (strongly) inclined towards the dissenting reasons of Deschamps and Charron JJ who state that judicial consideration of religious questions should be predicated on a demonstrated violation of a rule recognized in positive law.
Brown also points out that the claim for damages were based on religious, and wonders what the court would decide if an injunction for specific performance was sought instead.
However, and comment in the Star,
Religious and cultural obligations form the life experiences of Canadians who live by them, and they cannot be brushed off as “cultural” values instead of “Canadian” values. It is traditionally within the court’s jurisdiction to “ensure that members of the Canadian public are not arbitrarily disadvantaged by their religion,” Abella concludes, and this case fits comfortably within that tradition.
But the most interesting element may be the fallout of this case and its implications on Contracts Law.
Professor Daniel Cere of McGill University religion said in the National Post,
The judgment may provide some relief for Jewish women who feel trapped by the internal logic of Jewish divorce law” but warns that on the Bruker principle, the courts might gradually be “transformed from a shield to protect religious freedom into a sword to coerce particular religious undertakings.
Promissory Estoppel has not been posted on this site yet, but typically is considered in Canada a shield, i.e. a defence against proceedings, for which an injunction is the only remedy. This ruling may change that for the future.
Bias in the Judiciary?
Politics and Gender
The Toronto Star reported today that political affiliation and gender may affect certain rulings in the Ontario Court of Appeal.
The study by Yahya and Stribopoulos found the greatest variance on cases related to Charter challenges and family law cases. The findings appear to confirm an earlier American study which suggested that judges are susceptible to group polarization.
What’s the Problem?
Aspiring for impartiality in the judiciary goes back as far as Socrates:
“Four things belong to a judge:
to hear courteously,
to answer wisely,
to consider soberly, and
to decide impartially.”
These findings are potentially problematic because the Courts of Justice Act (R.S.O. 1990, c. C.43) states:
80. Every judge or officer of a court in Ontario, including a deputy judge of the Small Claims Court, shall, before entering on the duties of office, take and sign the following oath or affirmation in either the English or French language:
I solemnly swear (affirm) that I will faithfully, impartially and to the best of my skill and knowledge execute the duties of ……………………..
So help me God.
The affirmation of impartiality could appear to be compromised if a predictive pattern of rulings could be established based on gender and political lines.
Correlation between Gender and Politics?
Further complicating matters is a recent Ipsos-Reid poll demonstrating that, at least in Ontario, political affiliation runs along gender and socio-economic lines.
Canada.com news reports:
Voters more likely to support the Liberals include women, younger Ontarians and people with a university degree. Conservative supporters tend to be men, individuals aged 55 and older, and people without a post-secondary education.
This likely has more to do with the focus of various parties. Liberals have long made inroads inroads into minority communities, and still champion Trudeau’s Canadian Multiculturalism Act ( 1985, c. 24 (4th Supp.) ). Conservatives instead tend to favour policies benefiting the economic elites and social majorities, such as tax-cuts and slashing focused social programs (1).
These trends are duplicated on similar issues in the findings of the Yahya and Stribopoulos study. An important exception to this was with Charter based appeals, where Conservatives tended to favour the appealant over Liberal judges.
However, this might be more reflective of the type of Charter argument presented, and a case can be made that the majority of discriminatory issues affecting minorities and lower SES are not actively pursued in the legal system due to the expenses involved.
Homogeneity Leads to Group Think
Having a high level of cohesiveness due to shared values is detrimental to the legal system.
Group think, as it is often termed, stifled creativity and critical analysis. Dissenting opinions are often the basis for appellate challenges and provide stare decisis (precedence) for different contexts.
Managed conflict within workgroups is a mainstay of most successful corporations.
Creativity has also largely been acknowledged of one of the major factors behind the economic prosperity of Western nations (and, according to some, why the West is on a downwards trend).
Even law firms are realizing that internal dissent can provide innovative solutions that provide a competitive edge.
Few Minds are as Neutral as a Plate of Sheet Glass
To be fair, the predictive value of judges decisions based on political affiliations does not necessarily represent an inherent prejudice. Law, like the political process, is subject to interpretation.
There are many ways to interpret the same statute from different perspectives and under different circumstances.
These variances more likely than simply reflect this divergence, which is actually necessary and required for thorough legal discourse (2).
Lord Hugh Pattison Macmillan (1873-1952) said,
The judicial oath of office imposes on the judge a lofty duty of impartiality.
But impartiality is not easy of attainment. For a judge does not shed the attributes of common humanity when he assumes the ermine. The ordinary human mind is a mass of prepossessions inherited and acquired, often none the less dangerous because unrecognized by their possessor.
Judge Rosalie Abella, Chair of the Ontario Law Reform Commission, stated in 1987, “every decisionmaker who walks into a court room to hear a case is armed not only with the relevant legal texts but with a set of values, experiences and assumptions that
are thoroughly embedded.”
So What is the Solution?
The obvious solution would be to create more diversity in the judiciary, which was also the findings of the report. A dampening effect of bias was observed on mixed panels.
This diversity should not be limited to gender or political affiliation, but should also include race, ethnicity, religion or faith, and sexual orientation.
The argument that groups directly protected by Charter Rights are most appropriate to understand its importance and implications is not an invalid one.
When Advocacy Compromises Impartiality
However, as Madam Justice Bertha Wilson (3), the first woman appointed to Canada’s Supreme Court of Justice noted, “Change in the law comes slowly and incrementally.”
Wilson also expressed concerns that expectations for her to advocate for womens’ issues could compromise her own impartiality:
“The judge must not approach his or her task with preconceived notions about law or policy, with personal prejudice against parties or issues, or with bias toward a particular outcome.”
Self-reflection by all judges of their personal biases is therefore a necessary component to achieving as close to impartiality as possible.
Judge Shientag has confirmed this stating,
“the judge who realizes, before listening to a case, that all men [and women] have a natural bias of mind and that thought is apt to be colored by predilection, is more likely to make a conscientious effort at impartiality and dispassionateness than one who believes that his elevation to the bench makes him at once the dehumanized instrument of infallible logical truth.”
Notes
(1) An important exception to this pattern is Conservative Provincial Opposition Leader, John Tory, who has recently made considerable efforts to make his party more inclusive to diversity.
(2) The new Alternative Party in Ontario might actually run contrary to the Charter with their anti-multiculturalism and anti-bilingualism stance; their platform has not been fully revealed to date.
(3) This post was created in part to honour the late Justice Bertha Wilson, who passed away this year on April 28, 2007.
Resources
Moin Yahya and James Stribopoulos. (2007). Does a Judge’s Party of Appointment or Gender Matter to Case Outcomes? An Empirical Study of the Court of Appeal for Ontario (Canada). Osgoode Hall Law Journal 45 (2).
Madam Justice Bertha Wilson (1992). Will Women Judges Really Make a Difference? The Fourth Annual Barbara Betcherman Memorial Lecture. Family Court Review 30 (1), 13–25.
Frederick Lee Morton. (2002). Law, Politics and the Judicial Process in Canada. University of Calgary Press. ISBN 1552380467
