Archive for the ‘ custody/access/parenting ’ Category

Nightmare On Any Street!

 

The horror of parental abduction!

 

Listening to Kris’s story was hearing a parent’s worst nightmare. I was Roy Green’s other guest, and legal expert, on Roy’s excellent talk program airing nationally on the Corus Radio Network each weekend.

 

As Vancouver parent Kris explained, despite a Washington state court order granting him custody of his young son Max, his Japanese born ex-spouse had removed Max from the US and taken him to Japan. His Court Order was not worth the paper it was written on, since Japanese family courts do not recognize or enforce foreign family court orders.

 

While Japan is a recent signatory to the Hague Convention, which requires countries to enforce foreign family court orders, Japan has yet to pass legislation to implement the necessary procedures. So for now, a law without any teeth to help parents like Kris.

 

Although Kris is exploring other options, including the intervention of Interpol, Kris’s story illustrates the challenges which can occur if a parent removes children to a foreign jurisdiction, even those countries which observe the Hague Convention.

 

In my experience it is far more effective to attempt to prevent the children from leaving the jurisdiction than it is to have them returned after they’ve been removed.

 

So here are some tips if you suspect that your ex may be inclined to take the children away, whether to another province or country, and not return.

 

Firstly, if you are negotiating the terms of a court order or Separation Agreement, make sure you include specific provisions which require your ex to obtain your prior written consent to travel outside the province or country with the children.

 

Secondly, if there is no court order or agreement in place, and you have evidence that your ex has plans to remove the children permanently, you need to immediately attend and obtain a court order that your ex not leave the jurisdiction. Once you have an order it should be relayed to responsible authorities at every applicable border crossing, and/or highway.  

 

Hopefully, if you, and parents everywhere, take such steps, and authorities respond as they should, we can prevent re-living this nightmare on any street!

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

You’ve Just Been Served – Now What?

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!

Breathe!

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!

 

 

 

 

 

 

 

 

More Stupid Mistakes! – Part 2

 

Is moving out of the family home a good idea?

Not if you’re the husband, according to US author and family lawyer Joseph Cordell, who devote s a chapter in his book “The 10 Stupidest Mistakes Men Make When Facing Divorce” to the subject.

In fact, he makes some compelling arguments.

Firstly, if there are children, according Mr. Cordell it is much easier to stay fully involved with them if you’re in the family home than living elsewhere. I agree that this is certainly an important consideration before you make any decision to stay or go, since arguments involving access, can, in my experience, pose some of the most difficult, and frustrating challenges for any spouse who departs the family home.

In addition, after a lengthy period of separation from the children courts may be more reluctant to overturn the access “status quo” which has remained in place since you left the family home.

Secondly, there are financial considerations. Obviously, unless you have the option to move in with friends or family it is less expensive to simply stay in the family home.

Lastly, there is the matter of “stuff” – by that I mean items of furniture, personal effects, important documents (such as income or business related papers), etc. If you leave the family home, as I tell my own clients, it is virtually certain that you will never see such personal possessions again.

This is also the reason I advise my clients should they choose to leave the family home that they move out everything they wish to retain, and to itemize and record (plus video if possible) not only what was taken but what was left. A video is helpful to counter any argument that, either the place was left a total mess, or that the only items of furniture remaining consist of wooden crates or the like!

In summary I would agree with the approach that it’s preferable to remain in the family home if possible, however there are certainly limitations. For example, if there are allegations or a history of domestic mistreatment (by either spouse) then I suggest it may not be prudent to stay. If family law disputes also become criminal matters the chance of either an amicable or speedy negotiated resolution are greatly diminished.

So, there really isn’t a simple answer to whether you should stay or go, it all depends on your own circumstances.

But one thing is certain, before you make this or any other important decision, take some time to talk with your own family law expert.

 

 

 

 

 

Holiday Access Blues

Three helpful tips to avoid the holiday access blues!

Holidays, such as this weekend’s Thanksgiving, can be times of great family joy and celebration. But for separated or divorced parents holidays can often be times of great sadness and disappointment.

In fact as a family lawyer I’ve found most court applications for access usually precede holidays such as summer, or Christmas holidays.

So here are three helpful tips to hopefully keep you and your ex out of court.

First, and foremost, you should ensure, (whatever the agreed access) that the holiday access terms are accurately set out in a court order, Separation Agreement, or other legally enforceable written agreement.

 I know what some of you will say. “I’m on great terms with my ex and we’ve never had any issues around holiday access”.

You’ll just have to trust me when I tell you; unfortunately, it is unlikely that this state of holiday access nirvana will persist indefinitely.

Whether it has to do with your or her “new” partner, or something else, far better to have holiday access terms that you can legally enforce, if necessary, rather than relying on (now) non-existent goodwill.

Secondly, DON”T ACCEPT the phrase “reasonable and generous access”,   (unless modified as set out below.) to describe your holiday access. That’s because such holiday access is virtually impossible to enforce, since your interpretation of “reasonable and generous” may be one half of any holidays, while your ex believes one day during the holidays is “reasonable and generous”.

Remember, if you and your ex can’t agree on a certain interpretation it will be left to your judge to figure out holiday access, always a potentially risky (and totally unnecessary) gamble.

Thirdly, to minimize holiday access disputes you should include what is known as “specified access”. This means clarifying the holiday access terms, for example does it mean the school Christmas holidays, ie two weeks, or just the statutory holiday?

In addition, if there are other holidays or occasions of special importance to you and your new family, ie Fathers/Mother’s day, children’s birthdays, etc, these special occasions should also be defined.

Follow these three tips and you’ll improve your chances of avoiding the holiday blues!

 

 

 

 

Parenthood after Splitsville

How to Plan the Work and Work the Plan!

For most parents what happens following separation can prove to be a hugely costly, stressful, and frustrating challenge.

Especially, if parents don’t happen to share the same views regarding on-going parenting arrangements and you can find many such parents throughout our family law system.

And inevitably, the ones who suffer most are the children.

However, interestingly, as a long time family lawyer I often find that p things can often “morph” into bitter, hotly contested disputes, because of a simple misunderstanding, or lack of basic information.

Perhaps this reaction shouldn’t be surprising considering the emotional context and the often difficult, or absent, communication between separated parents.

That’s one of the main reasons, as reflected in this blog and my meet-up kitchen table divorce support group, that I am a dedicated advocate for improving the state and nature of contact and communication between separated parents.

And that`s why I`m a firm believer and supporter of any tools which can facilitate constructive dialogue between parents, such as the parental planner (www.parentalplanner.com).

It`s a practical planner which can be used by both parents to not only record basic child related information, ( ie doctors, teachers etc) but to plan, by way of a calendar, future activities, events, and special occasions, and identify areas which need further discussion. It also enables parents to record expenses incurred on behalf of a child, an often disputed issue.

Of course what this, or any other planner, really needs to work effectively, are two committed parents, not two parents who should be committed!

Let me know how this works for you and your ex.

 

 

 

 

 

 

Ten Stupid Mistakes

How to Avoid Common Mistakes when Separating!

Just came across a book titled “The Ten Stupidest Mistakes Men Make When Facing Divorce” by U.S. lawyer Joseph Cordell, and thought I would review it from my perspective as an experienced Canadian family lawyer.

The very first thing I note is that Mr. Cordell apparently specializes in representing men in family law cases.  (I should add that I have no idea whether or not Mr. Cordell or his firm would refuse to represent a woman.) Absolutely nothing wrong with a men-only approach, and in fact there are also, exceptionally talented, Canadian lawyers, who market their legal services to men, or to women.

There’s an argument that can be made that, like any other specialty, the more you practice  in a certain area,( ie family law for men), the more effective legal advocate you become, and ultimately, the more successful your male client.

So what’s my opinion?

I have always resisted the temptation to be branded as either a men or women-only family lawyer; because I don’t think your gender should be relevant to your family lawyer.

I would also argue, just like I would recommend as your personal injury lawyer someone who also has experience defending claims for ICBC, that the most effective family counsel is someone who has acquired expertise on both sides of the law, namely representing both men and women.

But that’s not my only reason.

Representing one side only also, in my opinion, reinforces and fosters a wrongheaded, outdated, and unhelpful attitude of “us” versus “them”. Viewing your spouse as an opponent rather than an equal, virtually guarantees a disastrous, costly and stressful “winner take all – scorched earth” strategy, especially damaging to the lives of your children.

Finally, there was more of a need for men-only lawyers years ago, when the concept of appropriate access for fathers was defined by the courts as every other weekend.

Thank God those times have, for the most part, changed for the better.

So, if you find yourself looking to retain a family lawyer, think about what I’ve said.

Over the course of the next few weeks I’ll continue to comment on what I think ( both positive and negative) of Mr. Cordell’s book.

 

 

Ex-Files – Part Two

Play nice – it may surprise you!

Last week I commented on why it’s a much better idea to focus on positive and constructive communication with your ex.

Today, another tip on what I mean, and why it can help.

An example from my own family law practice will help illustrate what I mean. I advised my client to try and maintain respectful communication with his ex, despite the intense tension and frustration surrounding various hotly contested parenting issues.

The client indicated that he fully understood, and would continue to do his very best to observe my suggestion.

Then I received a copy of an e-mail communication that my client had sent his ex. Suffice to say if my client had received a similar e-mail regarding the children, (and how he could not force them to call her during a holiday) he would have been incensed.

My client hadn’t intended to send his ex the message that the children were just as happy not to have any contact with their mother, but I’m certain that’s exactly what the mom read from the e-mail.

So before you send any communication to your ex take a moment and put yourself in their place.

If you wouldn’t appreciate receiving a similar message then don’t send it, or at the very least make some changes before you do. Keep in mind how you say something can be just as powerful as what you say.

And for anyone who would like to know what message could have been sent to the ex above, try something like “I’ll keep trying my best to encourage the kids to call you.”

Remember, good communication is not about scoring points with your ex, it’s all about sending the same message that you would like to receive.

Who knows, perhaps changing the tenor and dynamic of your communication will improve the chance that your ex will do likewise. And once that happens, only good things will follow, (eventually)!

 

The Ex-Files

 

Why to stay positive in your communication with your ex!

Look, I understand that communicating with your ex can be a challenge. After all, if communications were that great to begin with you’d probably not be separated in the first place.

And in my experience as a family law lawyer, communication between ex’s becomes even more strained when children are involved, and parents can’t find common ground about future parenting arrangements.

However, it’s during such incredibly stressful times that I encourage my clients in any communication with their ex to remain especially civil and respectful. Write things the way that you would like to read, for example,let them know ( in writing) you are doing your best, even during such trying times, to encourage the children to maintain contact with them.  

Also, advise them of any of the children’s professional appointments, or extracurricular activities, and encourage their attendance. Invite their input whenever possible regarding any significant child related decisions. If you follow this simple approach it will be much more difficult for your ex not to reciprocate when your ex has the children.

There are two reasons for this positive approach.

Firstly, and most importantly, you want to show the world (read judge) that you are committed to work collaboratively with your ex for the betterment and best interests of any children- the only issue of importance to the court.

Secondly, this will also set you apart as a unique and responsible parent, since the majority of applications heard by family court judges involve two parents determined to slander the other to the worst degree. Those embarrassing, insulting or threatening letters or e-mails will invariably be used by your ex in their materials to support just how unreasonable and irresponsible you really are, (despite all of the wonderful things you have to say about yourself in your own affidavit which most judges discount in any event.)

A negative approach only serves to make both parents appear hopeless, and helpless, to the judge.) While the judge will, in my experience, be rightfully impressed reading all of your positive e-mails and letters to your ex.

So, if you want to make the judge’s decision a lot easier to make, (in your favour) keep this simple, but effective, positive communication strategy in mind, and practice, with your ex.

Next week – more communication tips from the ex-files.

FATHER’S DAY MESSAGE

Let’s not forget today’s true message!

Today is Father’s Day, and I can’t stop thinking about all of those separated or divorced fathers who struggle valiantly to remain relevant in the lives of their children.

I’m especially remembering those dads who frequent family law offices like mine, fighting to become, or remain, every bit as active, and involved a parent, as the mothers of their children.

Over the past 20 years, has the family law systems moved away from the long-held conviction that mothers are more important to children than fathers, with access every other weekend being good enough?

Sure it has. 

But the legal battles continue, draining the financial and emotional resources of both moms and dads.  Resources much better utilized jointly parenting children, rather than sustaining never- ending court proceedings.

I also remember the incredible efforts of past father activists, like the late Guy Tisdale who dedicated their lives to improving the family law system for fathers, all based on the premise that children without fathers suffer the negative consequences for the rest of their lives.

To be clear, not all separated or divorced fathers want to be involved as an equal parent in all aspects of their children’s lives.  It’s frustrating for both me and some moms when I tell them that there is no legal way to ensure that reluctant fathers will exercise regular and consistent access.

Hopefully those “missing in action” dads will figure it out before their children are grown.

But for those dads who make the commitment to sharing the parenting obligations, and responsibilities, along with mom, (Disney Dads need not apply), there should be no legal impediments put in their way.

This means, (and anyone who has read my newspaper columns/blogs over the past many years, knows all too well), that children need and deserve the equal involvement of two responsible, loving parents.

I can’t think of a better Father’s Day gift this day, or any other!