Mom of the year

A New York court has ordered a woman to stop posting anything online about her children:

There’s not much to “like” about this woman’s Facebook habits.

A mean upstate mom who cyber-bullied her emotionally-disturbed 10-year-old son on Facebook by calling him an “a—–e” has been banned from posting anything about her kids online.

“Melody M.” told the court she wrote the insult about her son because that’s what “he is,” court documents said.

“Charitably stated, her testimony reflected a lack of insight as to the nature of her conduct toward her oldest child,” an upstate appeals court said Feb. 14.

The court barred Melody from “posting any communications to or about her children on any social network site.”

The court found that Melody used Facebook to “insult and demean the child,” calling him an a—–e, among other things.

Divorce gets ugly

No comment:

When Feng’s wife gave birth to a girl, he was convinced it could not be his as he believed their daughter would be as beautiful as her mother, so he concluded his wife must have been unfaithful. He insisted she tell him who the father was.

When a DNA test proved that the baby was his, the wife confessed she was originally rather ugly, but had spent $100,000 (P4 million) on cosmetic plastic surgery in South Korea before they were married. Feng filed for divorce citing “false pretenses.”

Unverified photos circulating in China do show a marked improvement in looks after the women went under the knife. Interestingly, no one has been able to track down a photograph of Feng himself. A pity as we could judge for ourselves if he really is the Mr. Oh So Good-Looking he thinks he is.

After the divorce, he then sued his ex-wife. He argued that she had conned him into thinking she was a beautiful woman.  It’s clearly a man’s world in China. Amazingly, the judge agreed with Feng’s argument and ordered his ex-wife to hand over $120,000 (P4.9 million) in compensation.

“I married my wife out of love, but as soon as we had our first daughter, we began having marital issues,” said Feng. “Our daughter was incredibly ugly, to the point where it horrified me.”

“17 Common Mistakes To Avoid In Divorce Proceedings”

From family lawyer Sherry Donovan in the Huffington Post.  I agree with all of them, and I’d add an 18th: concentrate on what’s best for the children and yourself, not what might punish your ex.

I’ve warned many clients that they’re likely to come out much worse at trial than if they accepted a reasonable settlement offer, but some are so embittered that they want their day in court anyway.  If they’re particularly obstinate, I will tell them to seek other counsel.

Who gets the RRSPs?

The Globe and Mail on division of Registered Retirement Savings Plans following the breakdown of a marriage:

While family law across Canada calls for a 50-50 split of matrimonial property, couples don’t necessarily need to split each asset right down the middle. And many don’t, says Ms. Linden, choosing instead to allocate certain types of assets to each spouse in a way that gives both parties roughly the same dollar value in the end.

The tax implications inherent in an RRSP should make parting couples pause for thought, says Tracy Theemes, a certified financial planner and co-owner of Sophia Financial Group in Vancouver.

“There’s a lack of understanding of what an RRSP really is,” says Ms. Theemes, a financial divorce specialist.

“It’s a tax holding structure. With an RRSP, you have a relationship with the CRA (Canada Revenue Agency), and that’s a distinct difference from other types of assets.”Dividing or transferring an RRSP during a divorce does not trigger a tax bill or credit for anyone, but cashing it out will, says Ms. Theemes. That’s why it’s important for divorcing couples to make sure they’ll have enough cash to take them through the transition period after separation, and beyond.

Ms. Theemes says she usually advises couples to just divide all assets down the middle – RRSPs, other investments, and cash from the sale of the family home.

“Especially in high-conflict splits, that’s the best thing to do,” she says.

I usually recommend to clients that the RRSPs simply be divided by way of tax-free rollover, whereby the funds are equalized between the parties without any monies being withdrawn.

If the parties insist on anything other than an equal division – say, if one party decides to waive her entitlement to the RRSPs in order to keep the matrimonial home – standard practice in Nova Scotia is to deduct the applicable withholding tax rate (between 10% and 30%, depending on the balance)   In other words, $50,000.00 in an RRSP would be valued at $35,000.00 for division purposes.

Book review: A Cruel Arithmetic: Inside the Case Against Polygamy by Craig Jones

[Originally posted at Canadian Lawyer]

When s. 293 of the Criminal Code of Canada was referred to the British Columbia Supreme Court, I wrote that I believed the law was clearly unconstitutional in its current form:

If this case was about legal recognition of polygamy — with massive implications for family law and even immigration policy — it would be much more challenging.

At issue, however, is whether a polygamy should be a criminal offence. Federal and provincial governments, and many interest groups, argue that the Criminal Code provision is necessary to protect women and children coerced into abusive relationships.

Such activity is already illegal, however, and the way s. 293 is written criminalizes all polygamous relationships, even those involving consenting adults. I would be very surprised if the B.C. Supreme Court — and, ultimately, the Supreme Court of Canada — does not find that the section is overly broad and therefore unconstitutional.

The Supreme Court of B.C., of course, did uphold the constitutionality of s. 293. (This is why you shouldn’t take my stock market or fantasy football predictions, either.) But the debate isn’t over, and the anti-criminalization arguments summarized in my blog post will still be forcefully made by religious and pro-polyamory activists.

Craig Jones, who represented the British Columbia Department of Justice in the Polygamy Reference, could not disagree with these arguments more strongly. A longtime civil libertarian, Jones was confident the constitutionality of s. 293 would be upheld, but he initially did not personally take a strong position against the practice.

By the time the matter made it to court, however, he was convinced polygamy is an inherently harmful practice that should not be tolerated in a modern society. He explains his evolution, and the case against polygamy, in his fascinating book A Cruel Arithmetic: Inside the Case Against Polygamy.


In a polygamous society like Bountiful, B.C. — a mysterious, secretive colony populated by members of the Fundamentalist Church of Latter-Day Saints, the breakaway Mormon sect which practises “plural marriage” — this “cruel arithmetic” inevitably manifests itself in two ways. Every time a man takes an additional wife (polyandry, the taking of multiple husbands by a woman, is almost unknown) another man in the community is left with no one to marry. And as the adult females are married off, younger and younger wives are taken. The results: child trafficking, sexual exploitation of minors, and “lost boys,” who are marginalized and even expelled from their homes:According to Jones, it is not enough for the state to take action against only “bad” polygamy involving young children or coercion and abuse:

Again and again, the discussion circled back to the fact that academic writers seemed to consider only harm arising in polygamous marriages, not polygamous societies [emphasis added]. The focus was entirely on how to accommodate polygamous unions while minimizing or addressing possible harms to co-wives and children. The commentators concluded that banning polygamy was unconstitutional because the law could be written to apply only to “bad” polygamy, or the state could simply scrutinize polygamous marriages looking for abuse and crimes. But the “cruel arithmetic” effect on the targeting of girls, like the increased criminality of men in the polygynous society, would be felt everywhere, and this was so even if every polygynous marriage was harmless, egalitarian, and restricted to fully consenting adults.

One of Jones’s expert witnesses, Dr. Joe Henrich, forcefully made the case that a “nontrivial” increase in polygamy would result in higher rates of crime and anti-social behaviour from the growing number of unmarried males (this has been the experience in China, where the “one-child” policy has led to an imbalance in the number of males and females).

But surely if polygamy were decriminalized, very few Canadians would take up the practice, right? Jones isn’t willing to take that risk. He devotes a lengthy chapter to the findings of historians and evolutionary psychologists, who note monogamous societies are a relatively new development. And, of course, there are still many nations where polygamy is legal and/or widespread, and it’s not hard to believe immigrants from these societies would be attracted to Canada — multiple wives in tow.

A Cruel Arithmetic makes a very strong case against polygamy, but does it make a strong case for criminalizing the practice? I find Jones’ arguments compelling (as did the British Columbia Supreme Court, obviously) but I still believe consenting adults have an inalienable right to enter into whatever arrangements they want.

Indeed, adults can enter into polyamorous relationships, provided they don’t go through anything like a marriage ceremony. Once the relationship becomes a “marriage,” though, it becomes a crime. As the distinction between even monogamous marriage and common-law relationships becomes less clear, I believe this becomes increasingly hard to justify. Even Jones has a difficult time pulling it off, in my opinion:

There may be harms that attached to some “polyamorous” relationships that weren’t marriages. But in my view, there was something about marriage, about the invocation of some external authority with (even notional) powers of enforcement, that permitted polygamy “take” a spread. . . . Who knows, if polyamory really does take off, and if it caused the same problems as polygamy, perhaps the law would have to be changed to accommodate that new reality. But line drawing, as we would urge the Court, is Parliament’s business, and when dealing with a spectrum of risks and harms the line has to be drawn somewhere.

Jones puts forward evidence that polygamy leads to societal harms that justify infringement upon some individual rights. But we have to be careful about where that line of thinking can lead us (would an abortion ban be justifiable if social science research showed harm arising from a declining birth rate?).

There’s also the fact Canada has tolerated the practice of polygamy in Bountiful for decades. There might be a Criminal Code section that makes polygamy a criminal offence, but it hasn’t stopped a polygamous community of 1,000 people from developing in the B.C. interior. We’ve known what’s been going on there for years, but nothing was done about it. And the longer it takes, the harder it becomes to suddenly start prosecuting it.

Moreover, Canadians know the anti-polygamy law is almost never enforced, but that certainly hasn’t led to many more “plural marriages.” If anything, the existence of Bountiful — a closed, cultish community that feels like a throwback to the 19th century — has probably made polygamy less attractive to mainstream Canadians. Who wants to live like those guys?

The case against officially recognizing polygamous unions, however, is much more strong (if anything, A Cruel Arithmetic is useful for rebutting the argument made by anti-gay-marriage activists, that recognizing same-sex marriage will lead to a slippery slope toward officially sanctioning polygamy). We can respectfully disagree as to whether it should be a crime, but we can agree that polygamy is a very troubling practice.

More importantly, A Cruel Arithmetic describes this major Canadian constitutional argument in more detail than I’ve seen in any other book. The duelling lawyers and their personalities, the clashes within the civil service, the preparation and cross-examination of witnesses — it’s all here. And it is absolutely riveting, especially when Jones describes the dismantling of dubious “expert” witnesses trying to make the case that polygamy is not so harmful. I’d go so far as to say every law student should read it, and many practising lawyers could learn a lot from it, too. I certainly did.

Nova Scotia’s Maintenance Enforcement Mess

The Dexter government’s inexplicable decision to move the Maintenance Enforcement Program from Halifax to Cape Breton is creating massive headaches for support recipients:

More stories of confusion and uncertainty emerged Tuesday over the NDP government moving the offices and staff tasked with tracking down deadbeat dads.

As of this month, the Justice Department has closed all its maintenance enforcement offices — in Amherst, Sydney, Dartmouth, Kentville and New Glasgow — to the public. The service is to be relocated to New Waterford, with a new office opening in the spring.

Carolyn Stewart of Halifax, who last received a payment in August and is now owed $18,000, said Tuesday that she just talked to her caseworker in the Amherst office Monday and was told her file would be moved to Cape Breton. The caseworker, like others on the mainland, isn’t making the move to the new office.

Stewart said she didn’t realize the Cape Breton office isn’t open yet.

[…]

Justice Department figures showed that, as of March 31, 2011, there were more than 15,000 cases in the province’s maintenance enforcement program, which collects and distributes court-ordered payments like spousal support. More than 9,000 cases were in arrears, by a total amount of $81 million by Dec. 31, 2011, according to the department.

A single mother quoted Tuesday in The Chronicle Herald said she had been waiting six weeks to hear from a caseworker after leaving several voice messages and was having problems with the program’s 1-800 number.

Justice Minister Ross Landry said Tuesday he called the woman and left a message expressing his concern about her situation.

Another woman contacted The Chronicle Herald on Tuesday saying she also had trouble with the automated telephone message system.

Rachelle Purcell said in an interview that she’s tired of getting the runaround while chasing the court-ordered payments for her teenage daughter. The last payment she received arrived Nov. 12, and arrears total about $9,600, she said.

“I can’t get hold of one person,” she said, referring to enforcement workers on her file. “They don’t call you back.”

“This is the judgment day for your children. It’s not about you.”

Every child custody/access litigant should read these words, from South Carolina family court judge Paul W. Garfinkel:

A custody case is much different than any accident case or a criminal trial. In those cases, an attorney is only asked to prove what happened at a specific date and place. All of the events have been fixed and are unchanging. A custody case is much different. You are asking your attorneys not to paint a picture in time but to present a movie. The movie must show over a broad range of time how each of you parent. Then I must decide which of you is the better parent.

Can you imagine if you had to prove that DaVinci’s “Last Supper” was a better painting than Michelangelo’s “Creation,” and say that you had to prove this to someone who had never seen either painting and you weren’t allowed to show the paintings to them? I suppose you could hire the curator of the Metropolitan Museum of Art who would come to court and testify about composition, color, depth, character, and proportion. Or I suppose you could bring in some ordinary people to say which one they think is better. Maybe you could take a poll. This is what you are asking your attorneys to do in this case. They have to prove to me which is the better parent, but they have no way of showing me exactly how you parent. They can’t take me to the study sessions so I can see you how a good tutor Dad is. They can’t bring me into your child’s bedroom at 5 a.m. to see how Mom comforts the child who is awakened with a fever. I want you and I want your attorneys to bring up those incidents which show you to be caring and loving parents, and I am sure they will try. However, it is more likely that they will be forced to show the other parent at his or her worse. Neither of these efforts will work very well. In trying to prove the positives you will discover that with the passage of time, the inability of witnesses to describe the situation with the same force with which it occurred, just the difficulty of putting into words other peoples’ thoughts, feelings and actions, all of these combine to make grey what you felt was vivid or blunt . . . what you thought was poignant. On the other hand, the negatives will seem to make you look like the worse parent that ever lived. Did you ever send one of your children to school without [their] lunch? Did you ever forget to give one of your children [their] medicine? Did you ever say about your child “I could have strangled her?” We probably have all done those things, and it will be presented as if you are the most neglectful or abusive parent. At the end of the trial any goodwill each of you had for the other, if there is any, will have been totally destroyed.

It is both of you who must be parents of these children until either you or they die. Neither I nor any of these lawyers . . . will be there for you for the remainder of this long journey. We could try to do our best to get you pointed in the right direction and maybe even help you along, but it is only in the first few steps. In the end it is both of you who must raise these children.

[…]

I know that your children want you to settle this case. You can do the right thing and you can start now. Put aside what has happened in the past. This is the judgment day for your children. It’s not about you. And think about the additional damage you are going to cause to these children. I can tell you right now it has happened and it happens every time. Put aside your own egos and swallow them. Leave it is in this courtroom . . . we’ve had a lot of egos left in this courtroom. You don’t see them but I do because I see parents who are willing to put their children’s welfare above their own ego. And they leave it right here and they know and understand what is really best for the children.

A Separation

[This review originally appeared at CanadianLawyerMag.com.]

I went into the Iranian film A Separation expecting a film about, well, a separation. And on its surface, the movie is about the breakdown of a marriage between two upper-middle-class professionals in Tehran, and the effect upon their preteen daughter.

The very first scene gives us a glimpse of proceedings in the Iranian equivalent of family court, where Simin (Leila Hatami) argues for the dissolution of her marriage. She wants to leave Iran and take their daughter.

Nader (Peyman Moaadi) is willing to divorce his wife and allow her to move, but he will not accompany her when he has an aged, Alzheimer’s-afflicted father to care for. And he will not consent to his child leaving the country, either. The unseen judge, determining that grounds for a divorce have not been made out despite both parties’ wishes, orders them to resolve their differences on their own.

From this moment on, the divorce proceedings fade to the background, and A Separationbecomes a complex, engrossing tale about the class, religious, and political divisions of the Islamic Republic of Iran. Simin moves in with her parents, and Nader hires a deeply religious, lower-class woman, Razieh (Sareh Bayat) to take care of his father.

But the caregiver — her adorable kindergarten-aged daughter in tow — doesn’t want her unemployed, depressed husband to know she has taken the job, and she is unsure what to do when her employment duties conflict with her Islamic values. At one point, she even calls a cleric to ask whether it is okay for her to undress and wash Nader’s elderly father. (It is.)

Things take an even darker turn when Nader arrives home early to find his father alone and tied to the bed, from which he has fallen. A confrontation with Razieh results, and it ends with Nader shoving her out of the apartment. Shortly thereafter, she miscarries — and, because she was more than 4 1/2 months pregnant, Nader is accused of murder.

A Separation actually gives the viewer more of a look into Iran’s criminal-justice system than its family courts. Nader and Razieh are hauled into the office of a judge — really, a harried bureaucrat — to argue about what really happened. Investigators accompany the complainant and accused to the apartment, and each party tries to physically demonstrate what happened. For people familiar with the Canadian justice system, the way the Iranians handle such a case is quite startling.

Each party, it turns out, is keeping potentially game-changing secrets from the court and from their respective families. Simin and Nader’s daughter, meanwhile, believes that none of this ever would have happened had her parents not separated.

A Separation was made around the same time that Iran was convulsed with clashes between pro-democracy demonstrators and the Islamist government, and the viewer can’t help thinking that Samin and Nader would be among the reformists while Razieh and her husband are part of Mahmoud Ahmadinejad’s political base.

Unsurprisingly, this subject matter proved extremely controversial, and writer-director Asghar Farhadi was forced to leave much of the story untold. It is never fully explained why Samin wants to leave the country, and the viewer is free to speculate about whether family divisions or the likes of Ahmadinejad, or some combination of both, have something to do with it.

Perhaps unintentionally, this actually works in the film’s favour. A Separation turns out to be a film about Iranian people, not the Iranian system of government, and we see just how much the characters have in common with us, despite the less-fortunate conditions under which they live.

In the very last scene, which once again takes place in a family courtroom, the young daughter is asked to choose the parent with whom she wishes to live. In our country, a young girl would not be hauled before a judge and asked to make this decision. But many, many Canadian children would identify with the feeling of being torn between their parents.