When does a Marriage Qualify for Divorce?

Newson March 21st, 2016No Comments

To be granted a divorce in Canada you have to prove that your marriage is broken and can’t be repaired. There are currently two ways to prove this, legally, to the courts. That is by separating from your spouse for one year, “No Fault Divorce”, or by proving that abuse or adultery occurred, “For Fault Divorce”.

No Fault Divorce:

To complete the divorce you must be separated for one full year. However you can file for divorce before the year is up and then you can be granted a divorce once the one-year separation is complete.

Separation, in this case, does not have to mean that you and your spouse are living in separate houses. The simplest and most straightforward separation is to be living separately. However, if that isn’t possible financially, or because of children etc. then you can live in the same house. In that case the courts will require proof that though you were living in the same house, you were leading separate lives and not living as a couple. Proving that is more complicated than simply moving to different homes and therefore requires more individualized guidance from a lawyer on how to go about proving this to the courts.

For Fault Divorce:

Filing for divorce on the grounds of cruelty or adultery is called “For Fault Divorce”. This means the one spouse attempts to prove that the other is the one at fault for the failure of their marriage.

When filing for a “For Fault Divorce” the courts will require the spouse to provide proof of what exactly happened in order for the claim to be substantiated. This type of divorce is usually more difficult and complicated; therefore, hiring a lawyer that can coach you with the finer and more unique issues for your specific case is crucial in the “For Fault Divorce”.

Supporting Yourself

Newson March 14th, 2016No Comments

Family law is, of course, about families. But it’s important that we don’t lose sight of the individuals that make up those families.

This post is about support, but not for ex-spouses or children. It’s about you.

Whatever your case may be, if you are looking here, chances you’ve had easier days. If we’re not careful, emotional exhaustion can easily leave us face down in the mud. In this critical time it’s essential for you to pull yourself together and stand strong!

Emotional stresses are real and allowing baggage to pile up can be disastrous. Take initiative as soon as you catch yourself slowing down. This means taking stock of how you are feeling right now.

It could be useful to imagine emotional stress like a physical stress injury: the same way that an athlete’s injury needs ice, rest, and maybe even professional treatment, so too an emotional injury. Running on a damaged knee can be catastrophic. Disregarding emotional wounds can just as easily cause a train wreck.

Ask yourself:

-Am I able to work at a normal pace?

-How am I sleeping at night?

-Can I do what I would normally do, the way I would normally do it?

If you are getting divorced, chances are you will answer “no” to at least one of the questions. As soon as that happens you need to act. Don’t wait, do it right away: reach out to your support network—people you love and trust—to help you put together a strategy for navigating this challenging time. Part of that strategy might be a therapist, or maybe a weekly get-together with your closest friends for coffee. Let your friends help. There is no right or wrong way to go here. Don’t worry about making a mistake.

Hillel famously said: “If not for myself, who will be for me? If not for others, who am I? And if not now, when?” All three questions are critical, and they are in that order for a reason. If I’m not ok—if my knee is so damaged that I can’t even walk— how am I supposed to do anything else for anyone else? And do it now!

What’s the Difference Between a Common Law Couple and a Married Couple?

Newson March 11th, 2016No Comments

A couple is called “married” when two individuals decide to go through the ceremonial “joining of two into one”. The wedding we often associate with marriage —the fancy party, flowers, food, and dancing— is, legally speaking, inconsequential. In actuality, the real “wedding”—or bringing together of two things—is less exciting.

According to the letter of the law, to get married in Canada, all you need are two documents. First is a marriage license from a locally recognized municipal office or religious institution (that means paperwork). After receiving a marriage license, you can be issued a marriage certificate from an approved official (more paperwork).

That’s it. A lot less romantic, isn’t it?

In most parts of Canada, a couple attains common law status by living together for at least two years. That sounds a lot easier.

So why get married?

The law doesn’t care about “romance” or what’s “easier”. What are the legal implications of different types of relationship categories?

Depending on where you live, having the right paperwork can have a tremendous impact.

For example, in B.C. after acquiring commonwealth status, a couple is treated essentially the same as any other conventionally married pair. That is, in the event of a breakup, partners may be required to go through processes to divide assets the way a married couple would.

In contrast, in Quebec, a common law relationship is not considered a legal entity at all. That means even if a couple lives together for 20 years, builds a family together, and shares resources completely, if they split up, they are likely to walk away the same as a couple that’s just dating. The fact they lived together is meaningless.

Consider the consequences as many young people are forgoing the traditional route of marriage and affirming their relationships in their own ways. For some, that means no formal contract. Perhaps a Facebook status update will suffice?

It’s important for these young people to be aware of the possible consequences of their actions before taking any great leaps, especially involving others—namely children. In many Canadian provinces, common law spouses who separate have no way of securing legally supervised divisions of assets, child support, or spousal support. A young mother could find herself on her own, raising children, with no legal means to mandate the participation of the father.

It’s important for all of us to understand the legal implications of the choices we make.

What Determines who Receives Child Custody?

Newson February 29th, 2016No Comments

Any parents finding themselves in the middle of a divorce battle or in the process of adoption, are no stranger to the phrase “in the best interests of child”, a term often thrown around in the discussion of how child custody and visitation will be allotted. But what exactly does “best interests of the child” mean, and more specifically, how is it determined?

According to the Ontario Children’s Law reform Act, the term generally refers to the deliberation that courts undertake when deciding what type of services, actions, and orders will best serve a child as well as who is best suited to take care of a child.

There are various criteria the court will look into when assigning visitation and custody, and the specifics do vary from state to state. The overarching principles that are examined include whether the the main custodial parent will likely be able to care for the child long term, whether the child’s physical health and safety will be ensured, whether the environment to be provided will assist the child in becoming a healthy and functioning adult, and how the child relates to the parent/caregiver.

Naturally, this means that the mental, emotional and physical health of the parents seeking custody is evaluated. In addition, the court will perform a detailed background check to ensure that that there is no history of domestic violence and abuse. In some states, such as California and Iowa, special care is taken to arrange that the child’s cultural needs are met. If a child is of tribal origin, the home the child is assigned to must be as well. Depending on the child’s age and maturity, in eleven states and the District of Columbia, the child himself is given a say in the matter and the court can choose to act according to the child’s wishes.

In an earlier blog post, I discussed several examples of what the court will be looking for, in the child’s best interest. Here is the article: What Does The Best Interest of the child really mean.

Family Lawyer Toronto Barry Nussbaum discussing Bill Nye the Science Guy

Newson November 7th, 2014No Comments

I think this guy needs a Family lawyer in Toronto. Bill Nye surprised his girlfriend, Blair Tindall, with a spontaneous wedding in 2006. For unknown reasons, that neither Nye nor Tindall will speak to, the marriage was not legal. Shortly after the couple received notification from the State of California that they were in fact never married, they decided to split.
Nye has publicly accused Tindall of erratic behavior and stalking. He claimed that she poured a toxic liquid into the garden behind his home. Nye took out a restraining order against Tindall, for which she argued that ‘stress and fatigue’ had impeded her judgment. She insisted that she only meant to hurt Nye’s flowers and not him. Nye’s protective order required Tindall to stay 100 yards away from him.
In Ontario there are many laws concerning the parameters of marriage. For instance, an individual must be at least 16 years old to get married in Ontario, however parental consent is required for individuals under 18. Furthermore, an authorized official needs to perform a marriage ceremony in order to ensure that it is performed properly and legally. The parties involved can decide whether they want a religious or civil marriage. There are many specific stipulations for marriage that may have deemed the marriage between Bill Nye and Blair Tindall not legal. Having a Fmaily lawyer could help your situation and in Toronto barry Nussbaum could help.
A restraining order, like the once Nye obtained, can be issued in Ontario if an individual is fearful that their partner, or former partner, will cause harm to them or their children. A restraining order can be made by a judge at family court and will list conditions to limit interaction between parties.

Celebrity Divorce Blog: Charlie Sheen & Denise Richards

Newson October 31st, 2014No Comments

Celebrities Charlie Sheen and Denise Richards first met while working together on the film “Good Advice” in 2000 and were engaged in January 2002. The pair have two biological daughters together, Sam and Lola. Trouble in their relationship became apparent in March 2005 when Denise filed for divorce while pregnant with their second child. However, later that year it seemed the pair were attempting to reconcile and signed up for counseling. Then, in April 2006, a restraining order was issued by a judge against Sheen, mandating that he stay 300 feet away from Richards and their two daughters.

In November of 2006 the divorce between the couple became final. However, their child custody battle has persisted for many years now. Sheen has continued to deny many of Richards’ allegations of gambling, drug usage, and violence, to name a few. Sheen has also exhibited erratic behaviour, including accusing Richards of poisoning their daughter by having her receive regular vaccinations.

Most recently, Richards filed a new order to limit Sheen’s visitation to exclude overnights at his house and requested a new custody evaluation.

In a recent Ontario Summary Judgment, D.A.M. v. E.M., an order was granted to the mother for sole custody of the parties’ two children, with access to the father to be at the children’s discretion. This decision is often made when children are of an age capable to make such decisions about time spent with parents. In this case the children were 13 and 15 years old. Joint custody was not appropriate because the couple was high conflict, much like Sheen and Richards. Evidently, Sheen and Richards’ daughters are too young, being 7 and 9, to discern their own wishes regarding custody. Currently, the court has stipulated what is appropriate, but it is likely that the circumstance will change and as the children grow they will have more agency in the matter.

In D.A.M. v. E.M., the father argued that the mother was alienating the children from him. This was not supported by evidence, in fact the evidence indicated that both children clearly understood that their mother encouraged them to visit their father. A social worker confirmed that the children witnessed the history of domestic abuse between the parents, as well as the father’s substance abuse and were thus alienated from their father because of their own judgement of his behaviour. This situation serves as a likely prediction for the future of the daughters of Sheen and Richards considering the fact that they have most likely not only witnessed their father’s behaviour but that it has also been publicized by the mass media. Often times, the conscious wishes of children involved in custody situations will be accorded great respect by the court.

Celebrity Divorce Blog: Alec Baldwin & Access

Newson October 30th, 2014No Comments

When Kim Basinger and Alec Baldwin separated in 2000, Basinger cited emotional and physical abuse as the main cause. Two years later the couple’s divorce became final, ending their seven year marriage. However, dramatic interactions between Basinger and Baldwin have continued, mostly concerning their bitter custody battle over their daughter, Ireland.
Initially, Basinger and Baldwin agreed to share joint custody. Then, Basinger allegedly violated the conditions of Baldwin’s visitation rights. In 2007, the battle became public when a tape of a phone message that Baldwin left for his daughter was released to the media. In the message Baldwin yells in a fit of rage at his 11-year-old daughter, apparently because she had missed a prearranged phone call with him. The phone message revealed the brutal intensity of the couple’s custody battle. Basinger denied Baldwin’s accusations that she was responsible for leaking the tape. Temporarily after the tape surfaced, Baldwin lost visitation rights with his daughter. He also had to attend anger management courses.
A recent Ontario divorce case, Aziz v. Aziz deals with custody issues as well. In this case, the mother admitted that she refused to comply with a court order by not allowing the father to have access to their children. However, although the mother was technically in breach of the order, the court decided not to hold her in contempt because it was viewed to be harmful to the children. The mother’s actions are similar to Kim Basinger’s actions in terms of disallowing visitation between Baldwin and their daughter.
In the Ontario case, the court also dismissed a motion brought by the father to hold the mother in contempt because of her effort to re-enroll the children in Islamic classes. The father argued that the children did not speak the language of the classes. However, because the order was not clear and unequivocal as to where the mother was to attempt to re-enroll the children in the classes, it could not be determined that the mother was in non-compliance. It is little nuances like this in the law that can perpetuate bitter custody issues, like those between Basinger and Baldwin.

Celebrity Divorce Blog: Heidi Klum and Seal Finalize Their Divorce

Newson October 28th, 2014No Comments

Heidi Klum’s divorce from Seal became final on October 14th 2014. Originally, when Heidi filed for divorce in April of 2012 she claimed that Seal’s temper and party lifestyle was much to blame for the end of their 7 year marriage. The official paperwork cited irreconcilable differences.

The couple did not have a prenup, but did reportedly sign a ‘postnup’ at some point during their marriage. They kept most of their earnings separate. The ‘postnup’ made for an amicable division of assets concerning the couple’s two homes, one in Mexico and the other in Los Angeles.

Neither party will receive spousal support, which is commonly the case with two very wealthy parties. Heidi, one of the world’s most sought after models, reportedly earned more than 12 million pounds in the past year alone. Seal, a Brit and Grammy award winning artist, has sold more than 20 million albums. Overall, Heidi is worth approximately $70 million and Seal is worth $15 million. The custody agreement regarding the couple’s 4 children is confidential.

In Canada, a prenup is most often referred to as a domestic or marriage contract. Sometimes, two people will enter into such a contract prior to marriage in order the set regulations out if the marriage were to dissolve. According to section 52 of the Family Law Act, a couple who is already married or intends to be married may enter into an agreement stipulating their respective rights and obligations in the context of marriage, separation, annulment or death. The ‘postnup’, that seemingly saved Heidi and Seal a lot of trouble, likely explained a previously agreed upon division of assets. Such an agreement can also describe conditions for child rearing and support obligations.

Nuptial agreements, be is pre or post, are a contentious issue for many couples. Studies show that many people believe that discussing prenuptial agreements is a sign of uncertainty about the marriage. In fact, arguments have been made that such agreements put an expiration date on marriage or provide an incentive for divorce. However, given that the divorce rate is so high in North America, about 38% in Canada and 50% in America, such agreements may be wise.

Celebrity Divorce Blog: Bruce & Kris Jenner- Division of Assets

Newson October 28th, 2014No Comments

Bruce and Kris Jenner, stars of the hit reality television show “Keeping Up With The Kardashians”, are in the process of finalizing the details of their divorce. Kris filed divorce documents on September 22nd citing irreconcilable differences after the couple had been separated for over a year. The divorce is uncontested by both parties.

Shortly after filing, the couple reached an agreement concerning their shared assets, and two children, one of whom is an adult. The couple will share joint custody of their youngest daughter and there will be no child or spousal support paid. In terms of assets, it seems that Kris will retain many of the big ticket items including her 2012 Rolls Royce Ghost, 2014 Bentley CV, 2914 Land Rovaer Range Rover, and the couple’s Hidden Hills mansion which they purchased in 2010 for $4 million. Bruce will be paid $2.5 million to walk away.

In Ontario the law stipulates that when a marriage ends, the equal contribution of each person to the marriage is recognized. The law provides that the value of any kind of property that was acquired by a spouse during the marriage and still exists at separation must be divided equally between the spouses. The division of assets between Bruce and Kris Jenner was made easier by the fact that they each maintained separate bank accounts throughout their relationship, and their earnings during the separation period were kept independent of each other.

The law in Ontario also states that any increase in value of property owned by a spouse at the date of marriage must be shared and that the payment that may be owed to one of the spouses in order to effect this sharing is called an ‘equalization payment’. The $2.5 million that Kris will be paying Bruce is the ‘equalization payment’ in this case. Kris will pay $1.5 million upfront when the divorce is finalized, and then two $500,000.00 payments by the summer of next year. There are some exceptions to these rules. For instance, the automatic property sharing provisions only apply to married spouses, not common law relationships.

An interesting aspect of the Jenner’s divorce is the omission of spousal support. In Ontario the law views spousal relationships as financial partnerships. When the partnership breaks down, the person with more income or assets may have to pay support to the other. In calculating spousal support a judge will consider how much the person asking for support needs to meet his or her needs, and how much the other person can afford to pay. The main purpose of spousal support is to support a person while they try to become financially self-sufficient or to avoid serious financial difficulty. Since both Bruce and Kris Jenner are exuberantly affluent, neither party asked for or requires spousal support.

Top 10 Bizarre Reasons for Divorce

Newson October 2nd, 2014No Comments

No one’s saying marriage is all smooth sailing, but for some couples it becomes too much to handle. Here are some of the most baffling reasons real people have had for divorcing their spouses:

Why Did You Look at Me?
You think you know someone after 30 years of marriage. But one man from Saudi Arabia had never seen what his wife looked like due to her very strict tradition of remaining completely covered at all times. Not even her husband was allowed to see her face.

Well, one night he unintentionally woke up his 50 year old wife as he tried to lift her veil and see her face. She was furious and demanded a divorce.

Al-Riyadh, a Saudi newspaper, quoted her as saying, “After all these years, he tries to commit such a big mistake.” Turns out not every woman wants her husband to pay more attention to her.

Bird Got Out of the Cage
Infidelity is always risky, but when you’re dealing with a loudmouth the results can be costly. In this story, the loudmouth was a mynah bird.

A Chinese woman figured out her husband was cheating on her when their pet bird starting saying phrases like “I love you,” “divorce” and “be patient.”

The pet acquired this new vocabulary after she had been away for a month. When she returned, she noticed that it would become particularly animated when the phone rang. That’s how she figured out her husband must’ve been having an affair via telephone while she was gone.

The only question was whether the bird would be allowed to serve as witness in court.

I Love You More
Another case where pets prompted divorce transpired with a couple that still loved each other but couldn’t reconcile their issues.

An Israeli man filed for divorce after his wife adopted 550 cats. Five hundred and fifty!

The man tried to make things work but the wife refused to give up her beloved pets.

When Marriage is a Prison
A Saudi woman filed for divorce when she found out her husband of 17 years had nicknamed her “Guantanamo” on his cell phone.

How did she know? She discovered it one day when her husband left for work and forgot his phone at home.

Apparently she was convinced the marriage was in trouble when she realized he secretly compared her to the notorious detention facility in Cuba…and reaffirmed that thought every time she called.

Couldn’t Cut the Chord
Think your husband’s a mama’s boy?

One young groom from Italy was so attached to his mother that he brought her along on his honeymoon.

His bride tolerated the unusual relationship with her mother-in-law for three weeks before she decided she couldn’t take it anymore and filed for divorce.