What is PTCD and what’s the cure?

No, you won’t find this particular disorder in the official manual of standard psychiatric disorders. But that doesn’t come as much comfort to thousands of traumatized Canadians, forced to handle their own family law matters. One such self represented litigant coined the phrase to describe her own experience with the family law system.

A recent report authored by Law Professor Julia MacFarlane also documented the widespread dissatisfaction of many others in BC, Alberta and Ontario, including middle class, University educated litigants, who felt isolated, overwhelmed, and abandoned by the system.

So if this condition affects you, or someone you know, what’s my prescription for a cure?

As a family lawyer myself I have made an effort to support those who represent themselves, whether out of financial necessity or otherwise, and there are certain steps you can take to help yourself.

Firstly, PREPARE. Take the time to access available on-line resources to familiarize yourself with the basic legal issues.

But also be sure to access sites from the same jurisdiction, for example, if your family matter is in BC, don’t bother accessing on-line resources in Ontario, or complete a precedent on-line agreement from a different province. That’s because each province has different laws and terminology.

Secondly, CONSULT. Just because you now have a general knowledge of the law, trust me there will be serious legal gaps.

Now’s the opportunity to invest in spending some time to talk with an experienced family law professional, especially before you prepare your own application, or respond to one. If you don’t, and mistakes are made in the paperwork ,your case may be doomed before you start.

Also keep in mind that some family law lawyers, such as myself, will

provide legal advice on a when, and as-needed basis, which eliminates the need  and cost of retaining a full-time lawyer. Technically, you are representing yourself, but you still have access to legal support when needed.

Thirdly, VISIT. Most self reps are intimidated, and totally stressed, at the prospect of going into court. This feeling is purely natural, but treatable. If you can, prior to any court date, take the time to visit the courthouse and observe some family trials or applications, which should help to put you at ease. You also don’t need the added stress of getting lost on your way to the courthouse on your first court date!

Finally, HEAL, My last prescription has nothing to do with legal advice, but at the same time will have a profoundly significant impact on both your case and the rest of your life. Being healthy, confident, and emotionally secure radically enhances the prospect that the legal choices you make are the right ones.

If you are an employee, check to see whether your company has an employee assistance program which provides free or reduced cost access to personal counselling. If not, look for other personal or group counselling resources, such as my kitchentabledivorce.ca counselling group.

Lastly, unlike most prescriptions, mine comes with no adverse side effects!

Answer to your prayers? If you know the right questions!

Family law mediation can be the answer to help some separated parties settle their disagreements.

But in my experience as both a family law lawyer and mediator there remains a considerable amount of confusion and misinformation about the process of mediation, and the roles of mediators.

Probably once a week I will meet with a separated spouse for a consultation and be told that “my ex and I want to meet with a mediator and have them write up a separation agreement to avoid legal fees”.

So just what’s wrong with this approach anyways?

Firstly, while some mediators can be family law lawyers (such as me) a mediator need not have any legal background or experience. But regardless the role of a family mediator is not to provide legal advice, or to ensure that your legal rights are being protected, but rather to help resolve disagreements.

Some mediators will try and mitigate the lack of prior legal advice by preparing a separation agreement and advising the parties to obtain independent legal advice before executing it. Other mediators will simply prepare a memorandum of agreement and advise the parties to have the separation agreement prepared by legal counsel.

In my opinion it is far better to ensure you know your legal rights before attending mediation. If you do there is a far greater chance that any mediated settlement will be in your best interests, (and also no need to advise your aggravated ex that the mediated settlement needs to be re-negotiated because you weren’t aware of your legal rights!)

Secondly, before considering mediation you and your spouse should try and discuss what matters may be outstanding in the first place! If there is general agreement regarding the parenting of any children and the division of assets and liabilities there may be no need to retain the services of a mediator.

To find out what if any disagreements there may be, I recommend, if possible, that you and your ex first sit down at the kitchen table and review the various issues which need to be resolved. To assist my clients with this process I provide my client with a checklist which can reviewed by the parties, and then used as an outline for the preparation of a separation agreement, (or at the very least identify outstanding issues).

Thirdly, once you know your legal rights, and you and your spouse have defined the matters which need to be resolved, is the right time to consider retaining an experienced family law mediator.

So if you follow my advice, and ask the right questions, mediation may just be the answer to your prayers!

Just been served with court documents by a burly stranger on behalf of your former spouse? Now what?

Follow these three simple, but crucial, steps, and discover what you, and your ex, still have in common.

Firstly, take a deep breath and some time to read the documents. But resist the temptation to respond by angrily calling or texting your ex to express your shock and outrage. There are several reasons for this, namely your ex may have no idea what the document actually says, and further the wording will typically be formal legal terminology dictated by your ex’s lawyer rather than your ex.

Secondly, ignore the natural urge to rip up the documents, or file them away, in the hope that if you destroy it, or ignore it, it will go away. It won’t.

Worse yet, in your absence a court can, and will, make orders. Orders which can be far harsher than they would have been if you had prepared a proper response, and also challenging and costly to overturn.

Next, with documents in hand, arrange a legal consultation with a family law professional – Scott Taylor – #102 – 19610 64 Avenue, Langley, 604-534-6361.  Expect to pay anywhere from 30 minutes to an hour or more of legal advice.

Don’t expect a comprehensive review from a harried family duty counsel, or take legal advice from your dentist, or a friend of a friend, whose only family law experience is being divorced multiple times!

Thirdly, following the consultation you will need to prepare , or have prepared ,your  formal written response, possibly also including a claim of your own. If you decide to prepare your own documents, at the very least, have them reviewed by a family law professional before they are filed, to ensure your legal rights are protected.

However, if you follow these three steps there is also another, potentially far more valuable, benefit to you.

By responding in an effective professional manner, both your ex, and their counsel (if any), will know you are taking matters seriously, and intend to take all necessary legal proceedings to vigorously protect and pursue your legal rights.

Consequently, you have just laid the groundwork to encourage a negotiated or mediated family law settlement. That’s because your ex is no more interested in costly, protracted legal proceedings, than you are.

You do have something in common after all, trust me.

It’s called common sense.

Better late than never!

You may be married and not even know it!

That’s because living common law, (ie. a relationship of 2 years or more), will get a lot simpler, (or more complicated), depending on your perspective beginning March 18, 2013.  That’s when the new Family Law Act becomes effective inBritish Columbia.  Family law as we know it, will never be the same again.

In the old days, (before March 18, 2013), establishing the property rights of couples who separated after living together for 2 years or more was complicated, especially if all of the property was in the name of only one of the parties.

It meant having to prove an action based in trust law that the other non-owning party made a contribution towards the property, entitling that party to an interest in the property.  Such family law trust actions were overly complicated, expensive to prove, with uncertain results.

Beginning March 18, 2013, the way that family property is divided will be the same whether you are living common law, or married.

Under the new Family Law Act, family property, (whether married or common-law), will include the division of all property owned by one or both parties at the time of separation.  Exceptions would include the value of property owned by a spouse prior to the relationship, or received via inheritance, in which case only the increase in value of such property would be divisible.

My advice, if you’ve been living common-law, or you’re approaching 2 years of cohabitation, it’s a good idea to talk with a family lawyer to find out where you stand.  You may discover, much to your surprise, you’re already married!

With the holidays approaching, there is one sad reality which has become a Christmas tradition.  Namely, the flood of applications to courts by parents throughout the province, and assuredly the rest of the country, regarding Christmas access.  Undoubtedly, there are good reasons in certain situations to restrict or deny Christmas access to a parent, particularly, if the safety of the children is at risk.  However, there are undoubtedly more situations which are principally motivated by the parent’s animosity towards each other than for any other legitimate reason.

As a consequence, it is invariably the children caught in the middle of access battles between feuding parents who suffer the most.  I’m asking at this time of year, if this sounds like you and your spouse, that you put aside your personal feelings for one another, and think of your children.  Children need and deserve the care and attention of two loving parents.  Who knows, perhaps this co-operation will continue the rest of the year.  It’s certainly the most valuable and most loving gift your children will ever receive.

With apologies to the original author, I have penned the following alternative version of this Christmas classic.

‘Twas the night before Christmas, when all through the Courts,
Applications were piling, with time running short;

Frantic parents consumed in a flurry of faxes,
With lawyers and spouses all arguing Christmas access.

No stockings yet hung by the chimney with care,
Doubt children would be coming, no cheer in the air.

When out of Judges’ Chambers there arose such a clatter,
I rose from my chair, to check out the matter;
 
He was dressed in black silk, as he bounded the stairs,
And I knew when I saw him, his judgments were fair.

He surveyed all before him, and pronounced while he sat,
That children deserve access, it’s as simple as that;
Now is not the time to argue and fight,
Over which parent is more loving, more deserving, or right,

Lets continue this trend the rest of the year;
With children and parents sharing love that most dear.

And after such wisdom, the Judge sprang to his feet,
To return to his Chambers until next time we meet.

But I heard him exclaim as he turned out of sight,
“Merry Christmas to all, love your children tonight!”

When words can do damage!

There’s an age old saying that goes something like “sticks and stones may break my bones, but names will never hurt me.”

But if you’re in the middle of a nasty separation or divorce, with bitterly contested custody issues at stake, then names, or for that matter, whatever you say to your ex can definitely come back to hurt you big time, and in the riskiest place of all, family court.

How can that be, you say?

I’m referring to a situation where your ex surreptitiously records your telephone conversation, without your knowledge or consent, and then attempts to have the audio recordings and transcript entered into evidence at a court proceeding to support their child custody claims.

You’re probably thinking, as I originally did, that recording your conversation without your knowledge or consent must be illegal in the first place, and as a result inadmissible.

Surprisingly not.  Years ago, not sure when, it was a criminal code offence to secretly record a conversation with someone and accordingly, courts refused to allow such conversations into evidence.

But that’s no longer the case.  Something I came to learn firsthand when preparing my client for trial, with the focus on unresolved custody and access related issues.  My client’s spouse had recently recorded conversations about the children with him, and was now seeking to have those recorded conversations entered into evidence at trial.

The only guidelines to the admissibility of such recordings is whether the recordings are relevant, and a technically accurate recording of the actual conversation.

What I find especially odious about this practice, apart from the outright deceptiveness, is the fact that such recorded conversations are totally self-serving attempts to entrap the unknown parent into saying things they may, under normal circumstances, never say about the other parent, or children.

On the other hand, such conversations enable the parent who is making the recording, to put themselves in the best possible light, as it relates to the children.

Something to think about next time you’re talking on the phone with your ex, and you’re asked to repeat what you’ve just said, only louder and clearer this time!

Can sex with your ex de-rail your divorce?

Having sex with your separated ex may have consequences that you didn’t anticipate.

According to one report I read last week, a New Brunswick judge rejected a couples’ separation on the basis that the couple had engaged in sex during the period of separation.

Apparently this was, despite the fact that the couple had agreed that it was “just sex.”  In other words, clearly there was no intention on the part of either party to “reconcile” and rescue their marriage.

Here in BC one question which is mandatory for lawyers to ask divorcing clients is whether there is any possibility of reconciliation.  Only if the answer is “no” is the divorce supposed to proceed.

Notwithstanding, I’m often asked by some of my clients, whether casual sex with their ex during the period of separation essentially restarts the required 1 year period of separation.  Until now, I’ve responded with a “no,” much to the relief of the client!

The New Brunswick case raises issues surrounding what it means to be separated, since for the majority of divorces, the parties rely on a one year period of separation, (ie. not living together as a man and wife, for a period of at least 1 year), before obtaining a divorce.

Frequent, or even not so frequent, sex with your ex could potentially be a factor in deciding whether you and your ex are actually separated or not, and if so, for how long.

On the other hand, if you’re having frequent sex with your ex, (SWB – separated with benefits), you just might want to consider reconciliation after all!

Protect your assets like a celebrity!

While Canucks owner Francesco Aquilini was recently successful in shielding his financial divorce documents from prying eyes, the same can’t be said for the financial terms surrounding the quickie divorce of Tom Cruise and Katie Holmes.

According to oneUSmedia source, Katie walked away with no spousal support from Tom, or any share in Tom’s assets, certainly noteworthy considering he’s worth approximately 250 million US dollars.

All of which is not so surprising since the pair apparently inked an ironclad pre-nup, which no doubt specified no support or asset division in the event of divorce.

But before anyone sheds any tears for Katie, she will repeatedly be receiving child support payments of approximately $33,300.00 per month for their daughter Suri, until she turns 18 years of age.

Here in BC, the amount of child support is calculated by using the income of the paying spouse, and the Federal Child Support Guidelines.  I have no way of knowing how they calculated this amount for Tom.  (However, for those curious souls like me, if Tom was here working in BC and paying child support of $33,300.00 for 1 child, he would need to have an income of approximately $4,500,000.00).

However, just like here in BC, Tom is also responsible for additional expenses, such as Suri’s tuition, ($40,000.00 per year), medical expenses, etc.  In BC, Tom and Katie would share such expenses in proportion to their respective incomes, (and adjust annually), or they could simply agree to share them 50/50.

According to the sameUSsource, one of the divorce terms also specifies that Suri not attend any sort of “ residential school,” which has been interpreted by some as meaning a residential school associated with theschoolofScientology.  Not sure if that’s the correct interpretation, although I am fairly certain the exact nature of the “residential school” to be avoided, is clarified in the divorce settlement, otherwise Suri would have a difficult time eventually attending any long distance educational institutions, (such as college or university), and residing in residence.

For those of us non-celebrities contemplating a pre-nup, (also called a Marriage Agreement), it can be an extremely advantageous document to have in your pocket, (or purse), saving you legal costs, stress, and delay, in the event of a separation or divorce.

So take my advice, make like a celebrity, and get one!  Did I mention, I’m a family lawyer who prepares pre-nups and Marriage Agreements……?

P.S.  The family law regarding division of property, (and other matters), on separation are changing in March of 2013.  It’s a good time to review your options!

Three tips to
survive your separation!

Forget the Blame

If, and when, your relationship ends, the initial thoughts of the majority of my
family law clients focuses on blaming the other partner’s misbehaviour,
infidelity, gambling, alcoholism, etc. as the major reason for the failure of
the relationship.

My clients, considering themselves the aggrieved victims, are inevitably surprised
(and disappointed) to hear me tell them that their spouses’ alleged misbehaviour,
while no doubt an emotional minefield, has absolutely no relevance or
importance (with rare exceptions) to a court.

Far better and more constructive to take whatever steps you need to deal with your
own issues, and receive the support you need, since the only person who can
truly make you happy is you.

The first tip, find your own happiness, within.

Zip Your Lip

Readers of this blog know that I encourage parties to work out whenever possible the
basics of their separation. That’s the guiding principle of my
kitchentabledivorce approach.

However there is an important condition precedent. Namely, you absolutely must take the
time to thoroughly understand your legal rights before you have any discussion
with your partner. This does not mean talking with your well meaning friends,
your dentist, your father’s accountant, or cruising the internet.

It means actually meeting and talking with an experienced family law professional,
such as myself. But it doesn’t mean you have to retain a lawyer.

I frequently meet and advise clients on a pay as you go basis. This usually
begins with an initial hour long session, where I identify the key legal issues
in their separation, and recommend a checklist of essential elements that need
to be discussed, and hopefully resolved.

My second tip, zip your lip, until you know your legal rights.

Remember Your Children

Separation is usually preceded by a lengthy period of tension and conflict, which tends to
adversely affect children most of all. Unfortunately, with parties consumed
with their own fears and futures the mental and emotional needs of the children
are often overlooked.

Lastly, but most important of all, remember the children. Find them (and you) the
emotional help and support in their time of need, another key principle of
kitchentabledivorce.

Now, take thetime to take a deep breath, you’ve earned it!

THE “L” WORD

Just what do you do for a living?

It’sone of the first routine questions asked whenever two strangers meet for the
first time. It’s about as basic and uncomplicated as it gets.

“What do you do for a living?”

But it’s also a question that causes me all sorts of anxiety.

Considering the negative reputation of lawyers these days (has there ever been a time when
lawyers weren’t ridiculed and the subject of some really funny jokes?) ranking somewhere
between politicians (mostly lawyers – not helping) and used car salespeople
(unfair to (most) salespeople) I hesitate to acknowledge that I’m a lawyer.

After all, I’ve already heard all the jokes, (including the ones about the
rats/sharks/ lawyers, etc.)

So rather than just use the “L” word I could mention that I’m a “family lawyer”.

While a “family lawyer” sounds warm and fuzzy, it’s really just a nicer way to say
that you’re a paid mercenary ( ie divorce lawyer) whose task is to achieve
legal victory for your client, and somehow emerge victorious despite the
incredible costs and related emotional trauma.

Besides, chances are ( better than 50%) that the person I’m talking to has either
experienced the ordeal of separation or divorce as an adult, or endured a
miserable childhood as the pawn of an archaic, and confrontational family law
system of justice.

Who do you know who has any kind of fond memories of their divorce, or their
divorce lawyer?

Of course, I could try and soften the “L” word by mentioning that I’m also a trained
and qualified “collaborative divorce lawyer”. That’s a lawyer who’s also
trained as a mediator, and commits to supporting their clients by attempting to
resolve outstanding matrimonial matters through good faith negotiation (ie
collaboration) with opposing counsel, rather than litigation.

But frankly “collaborative divorce lawyer” actually only sounds as oxymoronic as
“military intelligence”.

The consequence of which would no doubt be a bewildered look to what is otherwise a
simple and straightforward question.

All of which explains my standard response whenever I’m asked what I do for a
living.

“I’m looking for work, what do you do for a living?”