Divorce Ads
I came across an article in the Walrus last week regarding a Chicago law firm which put out a rather risqué advertisement trumpeting, “Life’s short. Get a divorce”. This got me thinking about what, as family lawyers, the line is between our facilitating the breakdown of a relationship and our advocating that breakdown. The advertisement perpetuates the stereotypical “ambulance chaser” image of lawyers, but in this case the chaser actually advocates the accident. The danger of glamourizing that which is, for virtually everybody involved, a serious and difficult undertaking ignores the complex and often destructive ripples left by that breakdown, not only on the parties, but on the children of the parties. Divorce is not fun; it is not trivial, and to treat it in a flippant manner disrespects those who treat their relationships seriously.
Posted: August 12th, 2010 under Divorce.
Tags: advertising, Divorce, family lawyers, lawyers
To Skype or not to Skype?
There has recently been a flurry of cases referencing, examining or at least mentioning Skype in the context of access and mobility. As is becoming increasingly known, Skype is software which allows people to make voice and, by way of a webcam, video calls over the internet.
Inexpensive video conferencing has been available to the public through internet based applications for years now, but it seems to only be within the past year that the courts have taken real notice. It is a truism that video conferencing is not true personal contact. It is, however, at a higher plane than email or telephone communication, in that it provides child and parent with another level information, a level which heretofore has only been available in a face to face meeting.
In British Columbia, the majority of cases which reference video conferencing do so only as an option of communication proposed by the party seeking to move or as evidence of a party’s willingness to facilitate access: See Betz v. Joyce 2009 CarswellBC 2339 British Columbia Supreme Court, 2009 where at paragraph 57, the court acknowledges the willingness of the party to engage in Skype communications.
In Novlesky v. Novlesky 2009 CarswellBC 2638 British Columbia Supreme Court, 2009, at paragraph 86, the court stated that, “Mr. Lage, the children’s grandfather, is adamant about the importance of maintaining the children’s relationship with their father. I find he and the plaintiff are genuinely committed to supporting it. The children’s computers will be equipped with Skype, a program by which both visual and verbal communication occurs on the computer.”
In only one case to date, however, has the court made a clear and unambiguous statement regarding the limitations of the medium as an access method. In C. (E.L.) v. B. (E.S.) 2009 CarswellBC 3066 British Columbia Supreme Court, 2009, the court said at paragraph 153: “If the plaintiff moves with the children there is an emotional loss which will be suffered by them. They are only ages 7 and 4. They will grow up with limited physical and emotional affection from their father. Skype is not enough. They will not be able to participate in activities or events with their father.”
Clearly, the courts are aware of what Skype is not. In Gauvin v. Gauvin 2009 CarswellBC 2520 British Columbia Supreme Court, 2009, we see the beginnings of the courts exploration of what Skype actually is. In that case at paragraph 7, Mme Justice Satanove stated that, “The plaintiff also promises to acquire Skype and to pay for regular long-distance telephone access. Obviously, electronic communication is not as desirable as in-person access, but it does allow for the child to keep in touch with her dad every day if she so wishes.”
Here, the service is equated with telephone access. They are both “electronic communication” and, unfortunately, no comment is made differentiating the benefits the court sees. Would the inability to access video conferencing have negatively affected the Plaintiff’s case?
As video conferencing technology progresses and becomes cheaper, moving from computers to smartphones, and with the emergence of 3D video, it will be interesting to see how the court positions this medium within the context of access in general.
Posted: June 30th, 2010 under Custody and Access, Mobility.
Tags: access, children, custody, Divorce, Mobility, separation, skype, video, video conference, web cam, webcam
Child Maintenance Claims: Can a Payor Claim Legal Fees as a Tax Deduction?
Interesting case out of the Tax Court this month: in Trignani v. Canada, [2010] T.C.J. No.141, the court determined that a man who had joint custody of his child but who was paying net maintenance to the children’s mother, was entitled to write of those legal expenses he incurred to pursue his child support claims. In this case, the appellant, Mr. Trignani, was pursuing sole custody of his child, which the court determined to be a bona fide claim.
After the parties’ separation July 2000, they entered into an agreement in August 2000 providing for joint custody and for Mr. Trignani to pay maintenance. The parties filed against each other in spring 2001, each claiming sole custody and child maintenance. The Ontario Superior Court of Justice pronounced a consent order in April 2001 that the parties have equal time with the child (the mother’s access to be supervised) and Mr. Trignani was to pay child support. Notwithstanding this order, for the next five years, Mr. Trignani had the child in his care for the majority of the time.
The court order was was varied in 2006 by Minutes of Settlement which provided for joint custody and for Mr. Trignani to pay child maintenance which appears to have been a set off between his and the appellant’s guideline income obligations.
The tax court held that, despite interim agreements reached by the parties between 2001 and 2006, Mr. Trignani at all material times had a live claim for child support and sole custody. The fact that he agreed to a settlement in 2006 which provided that he pay net maintenance to the respondent did not detract from the viability of his claim prior to that point and did not extinguish his right to claim the monies expended on pursuing his child support claim as a tax deduction.
In cases where joint custody is sought or where sole custody is a reasonable consideration, the tax considerations raised in Trignani v. Canada should be considered when deciding whether to claim child maintenance. This case could have far reaching implications. It remains to be seen whether the decision will be appealed and how the decision will be woven by lower courts into the fabric of Canadian family law.
Posted: May 19th, 2010 under Case Analysis, Child Support.
Tags: agreements, child maintenance, Child Support, deduct, deduction, Divorce, minutes of settlement, tax, Trignani, Trignani v. Canada
Dividing the Grape Juice
You like wine. Who doesn’t? You’ve got a nice collection going, cellared under pristine conditions, perfectly cooled and humidified. And now you and your spouse are splitting up. Wither the wine? How do the courts deal with something that is equal parts collection and food?
While meant to be drunk (clearly), bottles of sought-after wine can command remarkable prices. The values of those bottles can and do constantly shift based upon the providence of the wine (ie. how it has been stored) its age and popularity. How then can a court value a collection and divide it up?
The British Columbia courts have taken more than one position on this issue. In Forzley v. Forzley, 1998 CanLII 5511 (BC S.C.), the court roughly estimated the value of the wine collection and reapportioned other assets to compensate for the parties’ relative interests.
In Hodgkinson v. Hodgkinson, 2003 CarswellBC 2461, the court came to the conclusion that the parties’ collection, “… has no market value. It cannot be resold (Liquor Control and Licensing Act, R.S.B.C. 1996, c.267, s.38).” (at para.38) In her reasons for judgement, Mme. Justice Dillon found at para. 45 that, “Because there was no market value for the wine cellar and because it apparently cannot be sold, I conclude that the wine cellar will be distributed in specie.” “The plaintiff has had the benefit of the cellar for two years without accountability. The defendant, therefore, will have first choice of 24 bottles, followed by the plaintiff’s choice of 24 bottles, and so on. Equality of these choices is based only upon fluid ounces and not value. Each party will have to do their own homework to decide what to choose. ”
In both cases, the court was cognizant of the benefit derived by the party living above the cellar and compensated the other party for assets which may have been guzzled.
For many people, wine is not just a drink and few collect solely for financial reasons. The decision in Hodgkinson appears to take this into account. Given that appraisals will never capture the personal essence of this kind of collection, an in specie division may be the best solution.
Posted: May 14th, 2010 under Case Analysis, Property Division.
Tags: Divorce, Forzley, Hodgkinson, propery division, valuation, wine
Getting Married, Separated, or Divorced? Time to think about your will.
The laws of British Columbia with regard to familial relations and wills and estates interact in a way that you need to be aware of if you want to make sure that wishes are honoured if you pass away. These are a few of the common issues that you should be aware of:
If you are getting Married:
Wills in BC are governed by the Wills Act. Under section 15 of the Wills Act, your will is revoked if you get married, unless your will specifically contemplates your upcoming marriage. If your will is revoked and you pass away, it will be as though you died with no will at all, and your property will be distributed according to the Estate Administration Act. So if you get married, make sure you revisit your will if you want your final wishes to be respected.
If you are getting Divorced:
Unlike getting married, getting divorced does not cancel your will. However, it can change your will. Any parts of your will that name your former spouse as executor or as a beneficiary of your estate are cancelled. The division of your estate can be complex and unpredictable if these portions of your will are cancelled. If you are getting divorced and you named your former spouse in your will, you should seriously consider getting a new will.
If you are separated and planning on getting Divorced.
The process of getting divorced can often take some time. Even if you are separated from your spouse and have started divorce proceedings, your will is still valid. If you are separated but not divorced and do not have a will, a substantial portion of your estate will go to your spouse if you pass away before getting divorced. Under both of these circumstances, you should consider immediately getting a new will which explicitly sets out that you are making the will with your impending divorce in mind, and which reflects your wishes.
Posted: November 18th, 2009 under Divorce, Wills and Estates.
Tags: Divorce, estates, wills
