Gary Joseph2013-05-18T19:16:13-04:00Gary Josephhttp://www.huffingtonpost.ca/author/index.php?author=gary-josephCopyright 2008, HuffingtonPost.com, Inc.HuffingtonPost Blogger Feed for Gary JosephGood old fashioned elbow grease.A Man With Two Spouses Dies -- Who Gets the Money?tag:www.huffingtonpost.com,2012:/theblog//3.21223212012-11-13T11:54:49-05:002013-01-13T05:12:01-05:00Gary Josephhttp://www.huffingtonpost.com/gary-joseph/recent decision of the Ontario Court of Appeal in the case of Carrigan v. Carrigan Estate has caused quite a media frenzy.
The case involved a contest between the late Ronald Carrigan's legal spouse and his live-in common spouse over pension benefits accruing to the spouse of the deceased.
Ronald Carrigan and his spouse Mary Melodee Carrigan separated some time in the year 2000 but never divorced. At the time of his death he was living with Jennifer Quinn in a common-law relationship. Ronald and Mary never formalized their separation by way of a separation agreement. In fact, Ronald continued to pay expenses for Mary and their two daughters up to the time of his death and designated his wife and daughters as the beneficiaries of his pension in 2002, after separation and while living with Jennifer.
Upon his death the legal spouse and his common-law spouse engaged in litigation over the survivors pension benefits. The common-law spouse was successful at trial. The trial judge found that under the Pension Benefits Act of Ontario both women were spouses of Ronald but Jennifer, who was living with Ronald at the time of his death, was entitled to the benefits.
The former spouse appealed and a somewhat divided three-member panel of the Ontario Court of Appeal overturned the trial judge, awarded the pension benefits to Mary and her two daughters, and awarded her costs of the appeal in the amount of $20,000. Justice Harry LaForme of the Court of Appeal dissented and would have upheld the trial judge's ruling in favour of the common-law spouse.
Interestingly, the majority in the Court of Appeal upheld and accepted the trial judge's finding that upon his death Ronald had two spouses (pursuant to the definition of spouse in the Pension Benefits Act). Entitlement to the benefits was not determined on the basis of who was the spouse of Ronald on the date of his death. Instead, the majority was convinced that the beneficiary designation made by Ronald in 2002, well after his separation from Mary, represented his true intention and the Pension Benefits Act, properly interpreted permitted the court to fulfill his wishes.
Despite much of the inaccurate media hype, the Carrigan case is not a family law case, nor is it a validation of any property rights of common law spouses as some lawyers and media types have suggested. It is a case determined strictly on the basis of statutory interpretation. An interpretation of the Pension Benefits Act of Ontario that permitted the court to uphold what it viewed as the wishes of the deceased.
What can we learn from this case? There are some circumstances that will give rise to the courts recognizing more than one spouse of an individual. Most of our statutes have been amended now to recognize the diversity of relationships formed in our modern society. More importantly, this case teaches us that separated individuals should formalize their rights upon separation by properly drafted lawyer assisted separation agreements and every adult who either has children and/or is engaged in any form of long term relationship should have a properly drafted lawyer assisted will.
While these comments may seem self-serving written by a practising family lawyer, the Carrigan litigation, while fact-specific, is not that unique. As our divorce rate continues to climb and as more and more individuals engage in non-marital relationships of duration, this type of litigation will become more prevalent among those who are "penny wise and pound foolish" with their legal dollars..]]>Why You Shouldn't Be Your Own Lawyertag:www.huffingtonpost.com,2012:/theblog//3.18705462012-09-10T10:20:31-04:002012-11-10T05:12:01-05:00Gary Josephhttp://www.huffingtonpost.com/gary-joseph/
Our city was recently plastered with billboards encouraging us to use the services of our local dentist. We are told, "Dentists make us smile." There is little handwringing among our politicians and leaders to reduce the cost of dental services or to encourage the public to "be your own dentist." There are no clinics set up where the poor, indigent and those who are simply cheap can "clean their own teeth" under the guidance of a dentist or a "quasi dentist."
Now, consider legal services and the continuous outcry for access to justice. Admittedly the cost of legal services has increased significantly and few members of the public have legal insurance plans. Access to justice is a value well worth defending. So how has the legal profession responded?
Bowing to pressure from politicians and judges (and those who desperately wish to be either politicians or judges), we have encouraged people to be their own lawyer. Programs and clinics have been set up to assist the "self-rep" (those who choose to be their own lawyer).
Our courts are now flooded with these would-be Perry Masons!
The problems this has caused the judicial system are endless. Drawn-out proceedings; judges bending over backwards to assist and accommodate self-reps while forgetting the mandate of fairness extends to both sides even those who are wise enough to retain counsel; decisions based upon inadequate evidence; the rules of evidence being turned upside down and finally, a diminishing body of reliable jurisprudence upon which future litigants can rely.
I am all for access to justice but let's understand what this truly means. I can have access to a dentist's office, but without a trained professional to assist me, you can imagine the mess I will make of my teeth.
It's the same with the court system. If the government is truly concerned with access to justice they would fund a legal aid system such that poor and middle class citizens could secure legal services to help them through a legal problem. They would pay lawyers a legal aid rate such that more lawyers would join the plan (the current rates pay less than the hourly rate to operate a law office). They would stop encouraging the self-rep! It is a cheap fix with long term detrimental consequences.
My practice does not include legal aid work, but I see daily the serious problems caused by the self-rep. Time to do something about it.]]>Canada Should Follow Britain's Lead When it Comes to Divorce Lawtag:www.huffingtonpost.com,2012:/theblog//3.17245562012-07-31T13:27:46-04:002012-09-30T05:12:04-04:00Gary Josephhttp://www.huffingtonpost.com/gary-joseph/shared parenting upon relationship breakdown. Perhaps it is time for Canada to follow again.
Without dragging up the details of past efforts in this area in Canada, suffice it to say that legislative initiatives on both the federal and provincial level in this regard have met with stern opposition from many and varied groups. Even the Canadian Bar Association Family Law Section (of which I was a dissenting member on this issue) opposes such legislation.
In introducing the details of the proposed legislation in Britain, Children's Minister Tim Loughton stated:
"We need to clarify and restore public confidence that the courts fully recognise the joint nature of parenting. We want the law to be far more explicit about the importance of children having an ongoing relationship with both parents after separation, where that is safe and in the child's best interests. Where parents are able and willing to play a positive role in their child's care they should have the chance to do so. This is categorically not about giving parents equal right to time with their children - it is about reinforcing society's expectation that mothers and fathers should be jointly responsible for their children's upbringing."
This statement by the British Minister addresses the concerns of many of the competing groups here in Canada. This type of legislation recognizes the importance of both parents to a child's development while ensuring that any such court order must be fully cognizant of the issues of safety and the child's best interests. Concerns for either would trump any presumption of sharing. Further, it addresses and affirms that shared parenting does not translate automatically to an equal right to time with the child. We in Canada and those of us who "toil in the fields of matrimonial discord" should pay close attention to the British experience in this regard.
Further of note is the intent of the British legislation to introduce meaningful access enforcement. As the British Justice Minister said:
"We want to send a strong message to any parent who ignores the arrangements ordered by a court. In the future these breaches will be brought back to court within weeks and before the same judge wherever possible. If any parent flouts a court order then effective enforcement measures will be available to the judge."
In Canada, original support enforcement legislation introduced the concept of support and custody enforcement. However this was later abandoned in successor legislation and we are, today, left with very effective support enforcement and little or no enforcement mechanisms for the enforcement of court orders relating to access.
Legislation similar to that introduced (for consultation) in Britain is urgently needed to comfort those whose relationships with his/her children are defined by court order. Those relationships must be protected such that a parent who is not the primary residential parent can grow his/her bond with children in marital breakup situations free from concern that an opposing party will flout the very order that defines the extent of time spent with the child(ren).
These controversial issues stimulate emotional debate among the general public and participants in the Canadian justice system. I suggest that it might be time, again, to let Britain inform our way on these legal matters.]]>The Quebec Divorce Case with Canada-Wide Implicationstag:www.huffingtonpost.com,2012:/theblog//3.16905512012-07-21T07:26:57-04:002012-09-20T05:12:04-04:00Gary Josephhttp://www.huffingtonpost.com/gary-joseph/Eric v. Lola.
This is the Quebec common law case between the billionaire businessman and his Brazilian beauty queen-like common law spouse.
The issue that has caused this high-powered litigation centers around the spousal support claim arising from the breakdown of the long-term common law relationship that produced a number of children. The appeal was heard in January 2012 and remains under reserve.
The implications of the decision are likely to be Canada-wide, notwithstanding that the case arises under the unique anomalies of Quebec family law.
In all provinces of Canada, other than Quebec, legislation provides for spousal support claims for common law provinces.
While legislation differs from province to province, the consistency of remedy exists. Most partners, upon the breakup of a common law relationship, can claim and receive statutorily mandated spousal support. However, Quebec is the exception.
Notwithstanding (or perhaps because of) the fact that the majority of unions in Quebec are common law rather than marital, no legislation exists to permit spousal support claims in that province. Hence, Lola (or whatever her real name is) filed her claim for spousal support together with a claim that the denial of same by reason of the absence of legislation constituted a breach of the equality provisions of the Charter of Rights and Freedoms (section 15).
This case has wound its way through the trial process in the Quebec Superior Court and the appeal process in the Quebec Court of Appeal. The four judges who have heard the case (one in Superior Court and three in the Quebec Court of Appeal) have differing views on the constitutionality of the denial of spousal support. The problem (or solution) has now been laid at the feet of the nine Supreme Court of Canada judges.
The determination of this case will test the court's resolve in applying the ancient doctrine of stare decisis (put simply, the requirement to respect prior decisions of the court).
In a property decision the Supreme Court, a number of years ago, upheld the constitutionality of property laws denying property claims to common law spouses. In that case, the court emphasized the need for respecting the choices couples make in marrying or not.
Will the court apply the same reasoning to spousal support claims arising from such circumstances? Will the court be swayed by the choice issue or will it see the issue as somewhat different when assessing need of a former partner to be supported financially after breakdown?
Time will tell, but regardless of the ultimate decision, which may appear at first blush to be of interest only to Quebec residents, and within that sample, to common law couples only, the ruling will have far-reaching implications.
The Supreme Court will be forced by the nature of the appeal to explore the law of spousal support at large. In measuring whether there has been a breach of equality rights under s. 15 of the Charter, the entire nature of spousal support must be considered.
Within this analysis there will be nuggets of guidance to claimants of spousal support or common law spousal support alike, to Quebec couples and couples across Canada. Given that spousal support claims represent one of the principal flash points in high conflict breakups across this country, lawyers and separating spouses should pay close attention.
Stand by, more to come once the decision is released.]]>The Divorce Law Biz Is Booming And Here's Whytag:www.huffingtonpost.com,2012:/theblog//3.16691772012-07-16T17:44:37-04:002012-09-15T05:12:02-04:00Gary Josephhttp://www.huffingtonpost.com/gary-joseph/
One of the perks of practising family law is that it allows you to experience social change first hand.
In my 35th year of practice, I am witnessing what I believe to be a tidal wave of change in our views and attitudes towards marriage and divorce.
As a young child growing up, I and my peers knew little of divorce. When confronted in my Grade 6 class with another student upset over his parents' recently-announced plans to separate and divorce, our teacher was called upon to patiently explain to the class just what a divorce was.
Fast-forward to today's youth and the thought of such a naïve reaction to divorce is laughable. Our youth live in a disposable environment: break a camera, fix it. If not, throw it out and buy a new one. Break a relationship (marriage), try to fix it. If not, throw it out and start again.
In this world our youth are all too well aware of the cost and consequence of divorce. Hence the growing aversion to marriage. Not an aversion to relationships, the biological and social motivations still exist, but young people today are becoming more and more risk averse.
They see a common law relationship as less fraught with breakdown consequences. To some extent, they are correct. Notwithstanding popular misconceptions and notwithstanding legislative and jurisprudential moves blurring the differences between formal marriage and common law relationships, there still exist legal differences.
For example, regardless of how long you co-habit and regardless of whether you have children together, common law partners do not acquire property rights under provincial or federal legislation in Canada.
While support rights may mirror that of married couples, common law partners' property rights are governed either by ownership or by complex trust and equitable claims which are less inclusive and much harder (and expensive) to assert. The province of Quebec is likely in the vanguard of common law relationships where the majority of new relationships are common law rather than married. The Quebec Civil Code and its treatment of married couples' property and support rights contributes largely to this phenomenon.
Even within the common law relationship, family lawyers have seen an increase in the use of domestic contracts executed either before or early in the union with a view to dulling and expediting the consequences of break-up. Common law spouses increasingly use cohabitation agreements to achieve this purpose and I expect that their use will increase.
When I was young people expected their marriages (relationships) to last. Hence the use of marriage contracts (aka pre-nups) was limited to the rich and famous. Today, our disposable-minded youth know this not to be so and increasingly plan for the (almost) inevitable.
I believe that we will continue to see the rise in our divorce rate together with an increase in the number of couples (opposite and same sex) choosing common law rather than married status.
Notwithstanding the fact that Statistics Canada claims that the divorce rate is dropping, the rate of relationship break-up continues to rise. StatsCan only records marriage break-ups that result in divorce. They do not record the rate of the breakdown of common law relationships or even the breakdown of marital relationships where neither party seeks divorce.
This trend will only accelerate the disposable aspect of relationships. What that means from a sociological context is better left to those who study such trends rather than this labourer in the fields of marital discord.]]>