Apr 3
Wednesday’s Video Clip: Family Court Judge Has a Bad Day and Gets Himself in Trouble
Putnam County Circuit Court Family Law Judge William M. Watkins III had a bad day in court and his angry rant resulted in his suspension from the bench without pay for the remaining years of his term by the Judicial Investigation Commission a decision later confirmed by the West Virginia Supreme Court of Appeals.
Divorcing? Think About Necessary Changes to Insurance
Although it’s usually the “bigger picture” items between divorcing spouses that garner most of the focus, there are many smaller details that must be attended to as well. Many of these can be easily overlooked.
For example, parties who are in the process of divorcing should review their existing arrangements in connection with their various insurance policies, in order to update the information on record with the insurer, to change/add new insurance, and to change beneficiaries as needed. This applies to many different types of insurance, such as automobile insurance, homeowner’s or tenant’s insurance, life insurance, and group benefits through employment.
The most obvious among these relates to existing homeowner’s insurance on the former matrimonial home; if that home has been sold then the ex-spouses will have to obtain separate coverage for their respective new residences. This may involve obtaining tenant’s insurance if a former spouse’s post-divorce accommodation is a rental.
Changes to automobile insurance policies will likewise be required. Individual insurance may have to be arranged, and any young drivers must be added to the policies of the parents with whom they live after divorce. If the parents share custody and their children have access to both parents’ vehicles, then consideration should be given to adding these young drivers to both policies.
Comparatively speaking, life insurance may not have to be altered to any great extent, other than to change the beneficiary designation from the former spouse. (However, where one ex-spouse is paying support to the other, it may be wise to keep the recipient ex-spouse as the designated beneficiary to that the funds become available to him or her for support purposes, in the case of the death of the insured ex-spouse). Employment-related group health or dental coverage may also have to be updated post-divorce to reflect the fact that legally the insured no longer has a spouse who is eligible for such benefits.
With that said, it is important to know that if the spouses are merely separated (i.e. have not yet divorced) then making the necessary changes to a joint policy can involve an added consideration: they must both consent to it. For example, if both separated spouses are “named insureds” on a policy of insurance, then the policy cannot be cancelled or changed, nor can one separated spouse be removed, unless the consent of both parties has been obtained.
At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at http://www.russellalexander.com/practice/ontario-divorce/
5 Divorce Questions: Interview of Lawyer Donna Neff by Russell Alexander
This week we interview Ottawa Ontario lawyer Donna Neff. Donna is a Certified Specialist in Estates and Trusts Law. Donna has gained personal experience regarding the issues that small business owners face. Although her clients include singles, couples, families, and seniors, Donna has a particular interest in individuals with a disability as she has experienced such needs within her own family.
Russell Alexander: “How often do people ask you for advice or guidance about separation and divorce and in which jurisdictions do you practice in?”
Donna Neff: “Every week several times a week, I meet with people who want to have a Will and Powers of Attorney prepared. Questions about the effect of separation and divorce are regularly part of the conversation. Some of the most challenging situations are where the clients are a couple in a common law relationship or are in a second marriage and one or both of them have children. So many people assume that after a certain period of time or if they have a child together, they have the same rights as a married couple. Most people are surprised to learn that nothing could be further from the truth. For those in second relationships, the challenge is figuring how to make sure their spouse isn’t left financially destitute while ensuring that children from a prior relationship inherit as well.
I am a Certified Specialist in Estates and Trusts Law and practice in the west end of Ottawa, Ontario”
Russell Alexander: ”What are the biggest concerns people raise with you about separation and divorce?”
Donna Neff: “(a) They want to know if updating their Wills and Powers of Attorney is really necessary. Usually people are pretty strapped for cash at the time of a breakup. Paying to have their Wills and Powers of Attorney updated can be a financial challenge. However, not taking care of this can be disastrous. Even though a separation agreement may state that a former spouse has no right to the estate of their now deceased spouse, court cases have decided otherwise where the deceased spouse didn’t bother to update his Will.
(b) It is also important for separated spouses to know that even updating a Will may not be enough. All beneficiary designations should be changed immediately. The proper papers should be signed and filed with the institution where the asset is held or administered. This includes insurance (both group and private coverages), RRSPs, RRIFs, TFSAs, and so on.
(c) If you previously named your former spouse as your substitute decision-maker for personal care and you don’t update this document, do you really want your former spouse making medical treatment decisions for you especially if the breakup was somewhat acrimonious?”
Russell Alexander: ”What advice do you have for people looking for lawyer?”
Donna Neff: “(a) Do your research … is the lawyer you are thinking of hiring focused in the area of law that you need help with or are they a jack-of-all-trades? The law is complex and no one can be a master of all areas of law … there is simply too much to keep up with.
(b) Ask family and friends who they have used for family law matters and what they thought of the results they got. Also ask what the lawyer was like to work with. Did they communicate regularly and in a timely manner? Did they really listen to you and give advice and options rather than pushing you to choose one direction or another? Most people want a lawyer who sets out the options and an estimate of cost of each so that the client decides what is best with the lawyer’s guidance.
(c) Don’t make the mistake of focusing solely on cost. An experienced lawyer whose rates may be higher can end up saving you money in the long-term because they know what can go wrong and can help avoid situations that could lead to expensive litigation.”
Russell Alexander: “What are the top 3 tips you have for people going through a divorce?”
Donna Neff: “(a) Update your Will and Powers of Attorney promptly. Don’t wait for the divorce (or separation) to be finalized. If you become ill in the midst of the divorce proceedings, do you really want your ex having any control? And if you don’t currently have a Will and Powers of Attorney, get these documents as quickly as possible.
(b) Update beneficiary designations on all insurance, RRSPs, RRIFs, TFSAs, and so on.
(c) Before you live with someone or get married, seriously consider having a cohab or prenup agreement in place first. And be sure to share any such agreements with the lawyer who drafts your Will and Powers of Attorney so that your estate planning documents reflect what you’ve agreed to.”
Russell Alexander: ”What do you envision for the future of family law?”
Donna Neff: “Collaborative family law will continue to grow … makes sense to have the parties involved in crafting their own resolution if at all possible.”
Do Sperm Cells Constitute “Property” Subject to Division After Separation?
Here’s a new one: In a recent British Columbia case called M. (J.C.) v. A. (A.N.), the court was asked to consider the interesting issue of whether 13 sperm straws (which are the vials containing a sperm donation), were “property” in the context of a Family Law case involving a separated couple.
During their 8-year relationship, the female same-sex partners had each given birth to one child apiece, with the children having been conceived through therapeutic insemination with sperm from the same donor.
When the couple later separated, they entered into a separation agreement which dealt with child custody and support. It also purported to deal with division of their joint property; however, the division of the sperm straws, which were being stored at a fertility clinic, was inadvertently overlooked. Each sperm straw had cost about $250, and had been donated by a donor who had “retired from the program” and was no longer giving donations.
When one of the ex-partners later entered into a new relationship, she wanted to have a second child using the remaining sperm straws that were stored at the clinic. (This would ensure that her second child was biologically related to the first one). She offered to pay her first spouse $250 each for half of the sperm straws. The first spouse, however, preferred to have them destroyed.
This is when the matter came before the court for a ruling.
The court was asked to decide whether the sperm straws were “property”, and whether the best interests of the existing children, plus any future offspring from the same donor, should be considered in determining what should be done with them.
The court considered a selection of cases from around the world, illustrating how the courts of different jurisdictions had treated the important legal and ethical issues that arise from dealing with the ownership of items such as semen samples, embryos, sperm, corpses, human body parts, and other substances that are “generated by the human body.”
Ultimately – and while noting that “the court is ill-equipped to handle moral and philosophical arguments – it ruled that the 13 sperm straws were indeed “property”, and that they should be divided equally between the former partners. However, the best interests of the children that had already been born from the particular donor’s sperm straws, as well as any future children that might be born, were not part of the consideration. Trying to analyze (and potentially place limits on) the use to which a couple could use the sperms straws would be “borderline discriminatory”. Moreover, identifying the best interests of a child yet unborn would be merely speculation.
For the full text of the decision, see:
M. (J.C.) v. A. (A.N.), 2012 BCSC 584 http://canlii.ca/t/fr3z5
At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at http://www.russellalexander.com/practice/family-property-division-and-sharing/
Ontario Separation and Divorce, transferring Property. Wednesday’s Video Clip
In this video, Rita, a law clerk with Russell Alexander Family Lawyers, explains how transfers of property in Ontario work, focusing on mortgage issues, equalization payments, and land transfer tax; and what documents and information you will be asked to bring to an appointment. To learn more about our services visit http://www.russellalexander.com/practice/real-estate-wills-power-of-attorney/
Can I pitch it? Disposing of a Former Spouse’s Possessions
Last week I wrote “We’re officially separated can I change the locks on the house” about something that frequently arises when spouses are common-law partners decide to separate: The question of whether the partner who remains in the home is entitled to change the locks in order to exclude the other partner. (And the answer, generally speaking, is “no”).
A related question is whether each separated partner is entitled to dispose of property that belong to the other, where for some reason they remain in possession of the other person’s goods after the split.
A common scenario is where the break-up happens quickly, and one partner moves out of the formerly-shared home virtually overnight. He or she may have taken any important personal items at the time (or may have made arrangements to come back for them soon after) but once the final split happens and the dust has settled, the non-essential personal items (such as hobby or recreational equipment, family heirlooms, art or other collections) may remain in the home for a long period of time until the parties wend their way through the legal process of divorce. Equally common is the scenario where the split was particularly acrimonious, so that the partner who has moved out prefers to simply replace certain of those personal items (where possible), rather than have to make arrangements to go back and get them.
In such cases, it’s easy to see why the partner who is left stuck with an Ex’s possessions would want to get rid of them, for practical and emotional reasons. But the question is whether he or she has the legal right to do.
Once again, the answer is “no” – at least not without giving the Ex-partner reasonable notice of the intent to do so, and adequate opportunity to make arrangements to come back and get them. Otherwise – technically – the partner who did the disposing could be held legally liable for the reasonable replacements costs.
Instead, for the partner who is left to deal with an Ex’s abandoned items a far better strategy is for him or her to:
1) Give the other partner notice in writing (ideally by registered letter) advising them that the goods are available for pick-up at a certain time, or during a certain window of time.
2) Have the letter indicate that if the items are not retrieved within that specified time-period, they will be donated or disposed of.
3) Keep any subsequent correspondence to document the arrangements that are being made to have the other partner return.
4) Provide a reasonable level of access, co-operation and accommodation when the Ex-partner does come at the time arranged, to retrieve the possessions.
However, if the Ex-partner has not retrieved the items despite being given such reasonable opportunity to do so, then they can be disposed of in a reasonable manner – or better yet, donated to a charity (with the donation receipts retained; they can be used for Canada Revenue Agency purposes.)
At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at http://www.russellalexander.com/practice/family-property-division-and-sharing/
Mar 22
5 Divorce Questions: Interview of Lawyer Marla Gilsig by Russell Alexander
This week we interview Marla Gilsig graduated from University of Victoria Law School in 1978 and was called to the British Columbia Bar in 1979.
Marla is family lawyer, who practices in Vancouver, British Columbia. Having taken training in Collaborative Law Practice and certified as a Family Law Mediator, Marla offers her clients alternatives to litigation and recognizes that, in appropriate cases, collaborative law or mediation can assist in resolving disputes in a timely and economical way. Marla is a member of the International Academy of Collaborative Professionals and Collaborative Divorce Vancouver which brings together family lawyers, mental health professionals and financial advisors to help separating couples reach a settlement.
Russell Alexander: “How often do people ask you for advice or guidance about separation and divorce and in which jurisdictions do you practice in?”
Marla Gilsig: “People contact me by phone and email 24 hours a day, 7 days a week, asking for legal advice about separation and divorce. I am licensed to practice law in gorgeous British Columbia by the Law Society of British Columbia and I am family law lawyer, an accredited family law mediator and trained collaborative lawyer.”
Russell Alexander: “What are the biggest concerns people raise with you about separation and divorce?”
Marla Gilsig: “Fear that the separation and divorce will cause their children to become irreparably harmed emotionally and financially; their estranged spouse to seek revenge by liquidating, encumbering or damaging property or producing less income; both spouses to incur huge legal and court costs which will dissipate the family’s assets; and the private matters of the family will become part of a public record.”
Russell Alexander: “What advice do you have for people looking for lawyer?”
Marla Gilsig: “Consult a family lawyer to determine the type of family law legal services you need e.g. family law agreement, pre-separation advice, family law litigation, mediation, collaborative, or arbitration. Interview a few family lawyers in your community who have the desired training and experience to assess which lawyer is a good match for you as a family law client; ask to be introduced to the lawyer’s legal assistant or paralegal; and insist on a written retainer agreement.”
Russell Alexander: “What are the top 3 tips you have for people going through a divorce?”
Marla Gilsig: “(i) Keep it out of the court system and private unless there are severe power imbalances, financial disclosure issues or domestic violence. Deeply private matters deserve to be kept private.
(ii) Don’t characterize a divorce as fight with winners and losers. Think of divorce as a family matter with a legal element, not a lawsuit that happens to be about family. Think about how the execution of the divorce will affect the dynamic in the family. Make the goal, a successful conclusion to the end of the spousal relationship.
(iii) Assemble a professional team: family lawyers, divorce coaches, divorce financial planner, and child specialist. Always ask how much that option will cost my spouse and me in time, money and emotional fallout.”
Russell Alexander: “What do you envision for the future of family law?”
Marla Gilsig: “In British Columbia on March 18, 2013 we will have a new Family Law Act which makes resolution out of court the preferred method for resolving family disputes. I envision that the Act will lead professionals who work with families to achieve the goals of this Act which include:
• to encourage parties to a family law dispute to resolve the dispute through agreements and appropriate family dispute resolution before making an application to a court; and
• to encourage parents and guardians to resolve conflict other than through court intervention, and create parenting arrangements and arrangements respecting contact with a child that is in the best interests of each child.”
Next Friday we will be interviewing Ottawa Ontario lawyer Donna Neff of Neff Law Office.
We welcome your suggestions for new interview targets! If you know a divorce lawyer with great advice, please send her or him our way.
Ontario Family Mediation is a Good Thing – But it’s Not the Only Thing
Everyone knows that litigation of any type can be time-consuming and expensive. In Family Law in particular – where high-conflict situations between the parties are heightened by emotional considerations – disputes can be dragged through the courts for literally years and years.
Not surprisingly, there has been increasing interest in Alternative Dispute Resolution (ADR) mechanisms for Family Law disputes especially. Amongst the options available, mediation is a particularly popular choice because it involves a voluntary process involving trained mediators who assist Family Law litigants to resolve their issues. Indeed, relatively recently the Ontario Ministry of the Attorney General has made Family Mediation Services available right in the family court locations, although private third-parties can be used as well. In either case, parties can obtain the assistance of these third parties to help them resolves disputes that arise in connection with relationship breakdowns, including child custody, access and support, and equalization of net family property.
But while mediation is a good idea in both theory and practice, it cannot be the only step that parties take to try to resolve their Family Law disputes. This is because mediation is not intended to replace good legal advice.
Rather, for each party in a dispute, mediation is a step that ideally should be “sandwiched” between obtaining legal advice from an experienced lawyer, before and after.
This is because mediators have a defined role, and one that is relatively narrow. Specifically they:
• Must be independent and neutral (i.e. cannot take sides);
• Cannot give advice to either party;
• Cannot make decisions for the parties.
(Indeed by definition mediators are neutral third-party participants in the dispute-resolution process; they are sometimes lawyers by training but equally often are social workers or psychologists).
As such, it is important for a couple considering mediation as an ADR option to speak to their individual lawyers long before they seek out the services of a mediator. By doing so, they can each obtain tailored legal advice as to the governing law in their particular situation, can get guidance on their respective legal positions, and can have the possibilities for acceptable areas of compromise flushed out for them. All of the steps, made with a lawyer’s assistance, are fundamental prerequisites to reaching a mutually-agreeable mediated settlement. (And it should also be noted that lawyers usually do not attend mediation with their clients.)
In addition, the parties must avail themselves of legal advice after the mediation process has been tentatively concluded: any purported agreement that is reached during mediation must be reviewed with the parties’ individual lawyers, to ensure that it accurately and comprehensively reflects the desired resolution that was reached.
The bottom line: Mediation can be a worthwhile process for resolving Family Law disputes. But while it can eliminate costly time in court, it is neither a standalone process nor a replacement for good legal advice.
At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at http://www.russellalexander.com/practice/family-mediation-and-adr/
Divorce: Stay Engaged and Remember to Hug Your Children
Marla Gilsig recently published a new post discussing How To Successfully Parent After Separation and Divorce .
This blog reviews how to help children adjust to two homes, parenting times and parenting responsibilities and the importance of staying emotionally engaged.
Marla notes that “Children of all ages need hugs and hearing “I love you” and “I’m proud of you”. Parents need to ensure that their children know that they matter and are valued more than anything or anyone and that their parents love for them is far more powerful than the negative feelings they have for their former spouse.”
You can read Marla’s full blog here.
We will be featuring Marla Gilsig this Friday as a part our interview series with lawyers from across Canada (and beyond).
Mar 15
5 Divorce Questions: Interview of Lawyer Michele Allinotte by Russell Alexander
This week we interview Michele R.J. Allinotte who is a Cornwall Ontario lawyer and the founder of Allinotte Law Office Professional Corporation. Michele uses technology to make her practice more efficient and more environmentally friendly. Allinotte Law Office is a “less paper” office, using electronic documents and correspondence over printed paper when possible. Michele is also an enthusiastic user of social media and has been profiled in several publications for her social media usage and has spoken to several local groups about the topic of social media. She is proud to be currently or previously involved with a number of local organizations, including the Rotary Club of Cornwall, Women Entrepreneurs, Team Cornwall and the Cornwall Business Association. Michele has been a past speaker at the Solo and Small Firm Conference, Articling and Beyond 2010 and has also been profiled or published in a number of legal publications including the American Bar Association’s Law Practice Management Magazine, Law Pro Magazine and Precedent Magazine, which awarded her with a Precedent Setter Award in 2010.
Russell Alexander “How often do people ask you for advice or guidance about separation and divorce?”
Michele Allinotte “I haven’t taken any family law cases since 2003. But I still get at least one or two calls a week asking if I take family law matters.
My experience with separation and divorce in my practice since 2003 is mainly in dealing with property sales or transfers to one spouse alone post separation, or in changing wills and powers of attorney following a divorce or separation.”
Russell Alexander “What are the biggest concerns people raise with you about separation and divorce?”
Michele Allinotte “Well, when I’m getting the call it is usually to transfer the property to the sole spouse or to sell the property. So money is the biggest concern. Where the property is being transferred to one spouse, it may be in exchange for an equalization payment, and when the property is being sold, the division of the proceeds and costs is a concern. Sometimes one or both of the spouses is buying another house the same day. There might be three lawyers involved – me on the sale and another lawyer for each of the spouses (or more!). Everyone needs to be aware of how the money will flow, proper documents need to be signed, lawyers need to hold items in exchange for payment, and independent legal advice must be obtained, if necessary. It isn’t always a simple transaction when you layer the family law issues (and emotions) on top of it.”
Russell Alexander “What advice do you have for people looking for lawyer?”
Michele Allinotte “For any area of law, but especially for something as personal as family law, make sure you are comfortable with the person. I know lawyers can be intimidating and usually, when you need a lawyer, it is a stressful situation. Even a good thing like buying a house is stressful. So make sure you are comfortable with your lawyer and that you are able to get the information and explanations you need to make the best legal decisions.”
Russell Alexander “What are the top 3 tips you have for people going through a divorce?”
Michele Allinotte “I do get frequent calls about taking on family law cases. Often these calls are from people I know personally or from former or existing clients. So I tell them I don’t take on family cases but I refer them to two or three family law lawyers I trust. I also ask them if they want some names and numbers of counselors, either for themselves personally and/or for them and their partner together. Sometimes they take the information, sometimes they don’t. I tell them to take care of themselves and get legal advice before they make any decisions. That is really all I can do.”
Russell Alexander “What do you envision for the future of family law?”
Michele Allinotte “I’m not that well informed about recent happenings in the area, but I do know there are more and more people representing themselves. This becomes a problem for me when we do a property transfer because I need to make sure that the interests of both parties are protected, which can be hard because their interests are usually not the same and I cannot give them family law advice. I would hope that self-represented people who are able to reach an agreement would have more access to limited legal advice, so they can create and get advice on a written agreement. Without an agreement in writing, there is often very little I can do since most lenders will want an agreement that confirms what the spouse who is staying in the home is obliged to pay.”
Next Friday we will be interviewing Vancouver, British Columbia lawyer Marla Gilsig.
We welcome your suggestions for new interview targets! If you know a divorce lawyer with great advice, please send her or him our way.
Familyllb's Blog 