IRRECONCILABLE DIFFERENCES- MOVE OVER FOR “CONSCIOUS UNCOUPLING”

Gwyneth Paltrow and Chris Martin shocked the public this week by announcing their intention to dissolve their decade-long marriage. What may have been most shocking of all was the use of the term Conscious Uncoupling, that many people had simply never heard before.

While there is arguably more help available to people going through divorce than ever before, including family law lawyers trained in negotiation and/or collaborative practice, etc., the term ‘conscious uncoupling’ is relatively new on the scene.

Divorce is an uncomfortable subject, and many Canadians continue to enter into marriage without really turning their minds to the possibility that the marriage may one day end. If that day does arrive, most people find themselves adrift, and can suffer from a range of emotions, including confusion about how exactly to extricate from the emotional and financial ties that are a marriage, and even to depression as they face one of the most challenging aspects of adulthood. A divorce has often been compared to loss of employment, even a death, in terms of emotional severity and shock that is experienced.

To try and mitigate those feelings, our society has developed laws intended to guide people, and government websites that are intended to educate people as to their rights and obligations upon marriage breakdown.  There are lawyers who are specially trained to aid people during this time, and one tool among many in their toolbox is negotiation. This successfully keeps thousands of potential litigants out of the family law courts each year across Canada.

Conscious Uncoupling actually resembles the practice of negotiated settlement in that the separating spouses are working together, even collaboratively, to end their marriage without some of the things that can derail a low-stress decoupling, such as not assigning blame to the other for the breakdown of the marriage, working positively to move forward toward resolution, and considering the other’s viewpoint and feelings throughout.

Where conscious uncoupling begins to chart new territory is by having the participants look within themselves to focus on the relationship with themselves and consider that as a factor in the marriage breakdown. Conscious uncoupling goes further and asks participants to consider that it may not have been ‘natural’ for partners to expect to come together for a lifetime in the first place[1]. It seems that in order to adopt conscious uncoupling, one must be open to the idea that there can be many ‘life’ partners along the way, and that each relationship, though valuable, is not meant to be permanent.

It begs the question then if marriage itself may be irrelevant under the theory of Conscious Uncoupling.

 

Bingo Prizes may be Seized

Bingo Prizes may be Seized

In efforts to ensure enforcement of child support and spousal support awards, the Ontario Lottery and Gaming Corporation (OLG) has added Bingo winnings over $1,000 to its list of lottery or gaming wins that may be seized to satisfy outstanding support obligations. The Family Responsibility Office (FRO) is responsible in Ontario for tabulating and enforcing child support and spousal support orders and support terms found in Separation Agreements if filed with the Court.

All winners of a prize in the amount of $1,000 or more will need to provide their contact information such as their name, address and social insurance number to the establishment running the Bingo. This information will be sent to the FRO so that it can check its records and ensure that there are no outstanding child support or spousal support arrears owing.

If it is found that the winner owes child support or spousal support arrears, the prize will not be paid to the winner. Instead, the prize money will be deposited with the OLG. The funds will be released to the winner only after he or she has satisfied the FRO requirements, which in most situations will mean paying the child support or spousal support arrears owing.

For winners who think that they can refuse to provide their information to the Bingo hall and so avoid this process, note that the Bingo hall has no flexibility in this area. All winners of $1,000 or more will have their winnings deposited into the OLG account until further information is received from FRO informing the OLG that it has been satisfied.

For more information on this issue, visit: http://www.mcss.gov.on.ca/en/mcss/programs/familyResponsibility/Enforcement/lottery.aspx

Parental Abduction

 What are the protections in place to prevent parental child abduction?

Sadly there are very few legal provisions in Canada to help prevent child abduction by a parent. Currently there is no legislation in place authorizing exit controls that would automatically stop a travelling parent with an abducted child. The Canada Border Services Agency (CBSA) monitors persons entering Canada, but not those leaving. However, our border services may issue an alert if notified by the police of a suspected abduction, so it is prudent for concerned parents to inform their local police service immediately when a child is missing and it is believed that an abducting parent may take the child out of Canada.

In many cases, children taken to countries that are signatories to the Hague Convention can be returned through legal channels. But in other cases, particularly where the destination country is not a signatory to the Hague Convention, it can be virtually impossible to have the child returned by legal means. For a list of Hague Convention signatories, go to http://travel.state.gov/abduction/resources/congressreport/congressreport_1487.html

Countries such as Pakistan, India, Egypt and Iran, to name but a few, are nearly impossible to extract children from once taken.

Among the protections available, concerned parents can pursue a court order restricting the child’s movement out of the province and/or country with the other parent. Oftentimes, a judge will make this condition mutually binding, especially if both parents have significant ties to another jurisdiction and both parents are suggesting to the court that the other may be a flight risk.

Parents may request that any such order include provisions that will allow that child to travel with a parent if proper terms are met such as obtaining a notarized travel consent from the other parent, as well as providing a full itinerary and contact information for the child while out of the regular jurisdiction. But if, despite promises given or documents signed, a parent is still concerned that the other parent may not return the child and will take the child to a non-signatory country, the non-travelling parent should seriously reconsider whether they are going to agree to allow the travel to occur.

Some other important steps that can be taken to safeguard against abduction or to help the police and the CBSA locate a missing child include:

  1. Keep detailed information about your children, including updated travel documents and updated photographs, and keep updated information on your spouse’s travel documents (passport number, etc.) if you can.
  2. Maintain a list of the other parent’s relatives, friends and contacts abroad that he or she would likely contact to aid with the abduction.
  3. Educate your children as much as you can by ensuring they know that you would never agree to leave them, and that if they hear this from anyone it is not true. Teach the children how to use the telephone, make long distance calls, use a pay phone, etc. Explain to the child that he or she should not travel with the other parent right now, or with strangers.
  4. Approach the court for sole custody, a non-removal order, and to have the other parent enter into an agreement not to take the child out of the jurisdiction lest they forfeit a sum paid to the court.
  5. Seek an order requiring that access to the child by the other parent be supervised. Note that such an order will not last forever, and is meant only as a short-term solution.
  6. Notify your children’s school and all care providers, relatives and friends of the non-removal order. Be prepared to provide copies of the order to these persons if requested.

For more detailed information to help educate you and your children to safeguard against possible abduction, please go to http://missingkids.ca/pdfs/en/ReduceRiskAbduction.pdf

 and http://travel.gc.ca/travelling/publications/international-child-abductions.

 

Lola v. Eric – To Marry or Not To Marry? That is Now the Question in Quebec.

The recently released decision of the Supreme Court of Canada (SCC) in Lola v. Eric is causing a resurgence of the debate over support obligations, mainly along gender and equality lines, across Canada. Quebec is, and after the SCC decision, seems poised to remain, the only Canadian jurisdiction that does not consider spousal support for those separating spouses who may have an entitlement under either a need or compensatory basis, but who are in a common law situation.
Lola v. Eric is a section15 equality rights Charter challenge to the exclusion of common law spouses from the articles of the Quebec Civil Code (“CCQ”) Book on the Family, which provides for spousal support and some property rights, among other rights, upon separation/divorce of married and civil union spouses (Civil unions were recognized in Quebec in 2002 as an institution that allows same-sex or opposite-sex couples to make a public commitment to live together and comply with the resulting rights and obligations ). In Quebec, common law spouses do not qualify as married or civil union spouse so they do not attract these family law protections, regardless of the length of the relationship, whether there are children born to the parties, or if there is economic disadvantage arising for one spouse due to the breakdown of the relationship. This type of exclusion for common law spouses was problematic throughout Canada until spousal support and some form of access to property rights became available to most Canadians in common law relationships across the country. The stated reason for this protection is that there are often still gender-related roles regarding child-bearing and child-care that result in women bearing the financial brunt of the breakdown of a common law relationship, and for the most part the law tries to recognize this.
Lola and Eric were common law spouses for seven years. There were three children of the relationship. Lola apparently wanted to get married, but Eric refused, stating that he didn’t believe in the institution of marriage. Lola argues that her exclusion from the CCQ provisions discriminates against her on the basis of marital status, while Eric argues in essence that Lola made a decision to continue in a common law situation with no formal property or spousal support rights, and to change that fact legislatively or through the common law (Court decision) would be paternalistic, as it would send the message that women are less able to be self-sufficient than their male counterparts. It begs the question, are women still more financially vulnerable than men in a spousal (unmarried) relationships, such that they require government intervention to provide for their well-being? In a practical sense, have women become financially equal to men, in earning capacity, given time out of the workplace to bear and raise children? The SCC seems to think so, for Quebec.
While in Quebec this issue seems to have been a non-starter, in the rest of Canada Lola v. Eric likely raises more questions than it answers. For instance: Will the case have repercussions for spousal support arguments across Canada, for cases before the SCC in the future? Did the Supreme Court of Canada get it right, and if so, has the rest of Canada gotten it wrong?
It seems that the only real protection that will be offered to spouses in a common law relationship who may ‘give up’ their earning potential to care for children, or otherwise take a leave of absence from the workforce during the relationship, will be through a formal domestic contract called a Cohabitation Agreement. While it may be prudent for all co-habitees to have such an agreement in place to ensure that both parties are aware of and acknowledge their rights and responsibilities in the event of relationship breakdown, it is actually quite rare to have co-habiting parties go through the process of drafting such a contract.
Drafting an enforceable co-habitation contract can be expensive, as lawyers should be involved and act for each party separately for the contract to be binding. As well, it seems most couples during a relationship put off thinking about what will happen in the event of a relationship breakdown until they are actually going through it.
Lola perhaps has created a clearer pathway for Quebec couples who follow the news and SCC rulings, but for the rest of the co-habiting population the lesser earning spouse may simply be out of luck given the SCC ruling if the common law relationship breaks down. A simple fact is that a large number of people throughout the country are not aware of their legal rights and obligations under their jurisdictions, and therefore don’t have the tools to plan accordingly. Publicity around Lola may change this somewhat, but it may also be that decisions made during the relationship that have the ultimate result of negatively affecting just the lower-income spouse will be perpetuated by Lola.

1. http://www.justice.gouv.qc.ca/english/publications/generale/union-civ-a.htm, as per January 29, 2013