Guest Column: "Six Tips for Single Parents with Back to School Children"

by Lois Tarter

Summer is almost over and a new school year is on the horizon. The back to school divorced parent has a lot to deal with by the time the first school bell rings. When a new school year kicks off there are adjustments for kids and parents alike in any household. Here are six helpful tips that will get you through the tough transitional process this school year.

Don’t Burn Out: No need to take on the world. In the end, you will wind up getting burnt out. A single parent needs to take a steady, but comfortable pace and they will win the race.

Coordinate: Reach out to other parents and find out how you can all work together as a team. There are sure to be many rides to sports events, practices and parties, so coordinating with the other parents will help out tremendously.

Teamwork at Home: Working together as a family at home after school will make everything run much more smoothly. For example, if you and your ex washed the dishes after dinner it’s now time to bring one of your children into the fold. Kids have lots of energy and they want to learn, so pass a dish to dry and get them involved.

Teacher’s Pet: Let your children’s teacher know that you are divorced and navigating this school year as a newly single parent. They may have some helpful tips for you. Also, it’s your kids first school year with single parents. Maybe the teacher can let you know if there are any behavioral changes in your child because they are also going through a tough adjustment.

Meet with Your Ex: With the school year about to be in full swing, it’s important to have a meeting with your ex! There are lots of things to cover from back to school clothes to weekend visits to sporting events. No matter how you may feel about your ex, you’re still parents and the better communication you have about the children the better it will be for everybody at the end of the day.

Back to School Night: You and your ex will probably see each other at back to school night and parent teacher conferences throughout the year. Don’t make it back to school fight! Keep it civil and focused on the well-being of your children for this school year.

About Lois Tarter

Lois Tarter has a Bachelor of Arts Degree in Sociology and a Master’s Degree in Alternative Dispute Resolution. After receiving her Master’s Degree in Alternative Dispute Resolution, Tarter worked as a Mediator for the City Attorney’s office in Los Angeles.

Lois has written articles about divorce for such popular publications as The Huffington Post, SheKnows and More magazine. For more information, visit TheDivorceRitual.com and Twitter.com/LoisTarter.

Unmarried Couples, the Division of Property and the New Family Law Act

Courthouse Libraries BC has posted a short comment of mine on how the transitional provisions of the Family Law Act are going to work with unmarried couples' existing property claims. Read the post on Courthouse Libraries' blog, The Stream.

Kerr v. Baranow 2.0: Supreme Court Releases Second Trial Decision

Ms. Kerr and Mr. Baranow are one of those unfortunate couples, like Mr. and Mrs. Hartshorne and Ms. Rick and Mr. Brandsema, whose legal battles have doomed them to fame within the family law bar. The Supreme Court has just published its second trial judgment addressing the matters arising from their 2006 separation.

At the original trial in 2007, Ms. Kerr applied for spousal support and a trust interest in property owned by Mr. Baranow. As the parties were unmarried, Ms. Kerr could not avail herself of the property provisions of the Family Relations Act and was forced to rely on the awkward and general unsatisfactory equitable principles of unjust enrichment. The trial judge made an order for retroactive spousal support, and, finding that Mr. Baranow had been unjustly enriched by Ms. Kerr's contributions, gave her a one-third interest in a property owned by Mr. Baranow worth about $950,000 for a total cash award of $315,000 plus costs.

Mr. Baranow appealed. The appeal judgment was released in 2009, and allowed Mr. Baranow's appeal from the cash award and the retroactive aspect of the order for spousal support.

This time, Ms. Kerr appealed. The Supreme Court of Canada released its judgment in 2011, restoring the trial judge's decision on spousal support, ordering a new trial on Ms. Kerr's unjust enrichment claim, and giving Ms. Kerr her costs of the proceedings to date. The reasons of Mr. Justice Cromwell are a masterful restatement and modernization of the law on unjust enrichment and are required reading for law students throughout Canada.

The second trial judgment was released last week. The court applied Justice Cromwell's decision with rigour and exactitude, and reached almost the same conclusion as the original trial judge: Mr. Baranow had been unjustly enriched by Ms. Kerr's contributions, and she would be entitled to a one-quarter interest in Mr. Baranow's property, for a total cash award of $240,000 plus costs. 

The money likely spent over five years, two trials and a trip to the Supreme Court of Canada to achieve a result $75,000 off the original judgment is worth some reflection... as are the costs awards owing by Mr. Baranow to Ms. Kerr.

Supreme Court Releases Decision on Property Claims, Separation Agreements and Indepedent Legal Advice

The Supreme Court has recently released its decision in Giebelhaus v. Giebelhaus, a case in which the husband asked the court to divide property, in the face of a separation agreement he had signed on the subject, under s. 65 of the Family Relation Act. As usual, I'm not so much interested in the particular facts of the case as I am in the court's review of the law.

The court reviewed two important decisions, J.K.T. v. A.J.T., a recent case of our Supreme Court, and Hartshorne v. Hartshorne, a 2004 case of the Supreme Court of Canada. In J.K.T., the court outlined the principles to be considered on applications under s. 65:

[88] ... the onus is on the party seeking to vary the agreement to establish that it is unfair; fairness is not to be equated with equality or near equality. ... 

[89] ... in relation to the division of family property, that such a division may have to be unequal in order to be fair. ... 

[90] ... the question of fairness in family property matters ought not to be approached from a commercial perspective. It is necessary to examine whether the agreement reached was actually fair. ... 

[91] ... s. 65 of the FRA does not permit the Court to set aside agreements; it only authorizes reapportionment on the basis of unfairness.

The court then quotes Hartshorne for the basic test to determine the fairness of marriage agreements (important bits in bold):

[47] ... in determining whether a marriage agreement operates unfairly, a court must first apply the agreement. In particular, the court must assess and award those financial entitlements provided to each spouse under the agreement, and other entitlements from all other sources, including spousal and child support. The court must then, in consideration of those factors listed in s. 65(1) of the FRA, make a determination as to whether the contract operates unfairly. At this second stage, consideration must be given to the parties’ personal and financial circumstances, and in particular to the manner in which these circumstances evolved over time. Where the current circumstances were within the contemplation of the parties at the time the Agreement was formed, and where their Agreement and circumstances surrounding it reflect consideration and response to these circumstances, then the plaintiff’s burden to establish unfairness is heavier. Thus, consideration of the factors listed in s. 65(1) of the FRA, taken together, would have to reveal that the economic consequences of the marriage breakdown were not shared equitably in all of the circumstances. This approach, in my view, accords with the underlying principle of the FRA, striking an appropriate balance between deference to the parties’ intentions, on the one hand, and assurance of an equitable result, on the other.

The court in Giebelhaus then applied the first stage of the Hartshorne test to see what the parties would be left with under their separation agreement and concluded that the husband would be left with assets totalling $130,265 while the wife would receive, including the family home, assets totalling $242,564.

The court then applied the second stage of the Hartshorne test to see whether the separation agreement was fair in light of the factors set out in s. 65(1) of the Family Relations Act. This is what s. 65(1) says:

If the provisions for division of property between spouses under section 56, Part 6 or their marriage agreement, as the case may be, would be unfair having regard to

(a) the duration of the marriage, 

(b) the duration of the period during which the spouses have lived separate and apart, 

(c) the date when property was acquired or disposed of, 

(d) the extent to which property was acquired by one spouse through inheritance or gift, 

(e) the needs of each spouse to become or remain economically independent and self sufficient, or 

(f) any other circumstances relating to the acquisition, preservation, maintenance, improvement or use of property or the capacity or liabilities of a spouse,

the Supreme Court, on application, may order that the property covered by section 56, Part 6 or the marriage agreement, as the case may be, be divided into shares fixed by the court.

Considering the length of the parties' 14 year marriage, the needs of each spouse to become or remain economically independent and self sufficient, and the general s. 65(1)(f) catch-all factor, "any other circumstances relating to the capacity or liabilities of a spouse," the court concluded that the separation agreement was unfair and its division of assets therefore "outside of a reasonable range." The court awarded the husband a further $45,000, leaving him with $175,265 and the wife with $197,564... not exactly an equal division but significantly better than the original agreement.

There was, however, one other wrinkle in this case: the husband had obtained independent legal advice in signing the agreement — a fact relied on by the wife in her defence of the agreement. The husband claimed the advice he received was in adequate and that, as a result, he did not fully understand the wife's financial circumstances when he made the decision to sign the separation agreement.

This gave the court the opportunity to discuss the meaning and necessary content of independent legal advice when executing family law agreements (cites omitted):

[44]         The meaning of independent legal advice in the family law context was well described by Pitfield J. in Gurney v. Gurney, 2000 BCSC 6:

[29]      In the family law context, providing independent legal advice must mean more than being satisfied that a party understands the nature and contents of the agreement and consents to its terms. The solicitor should make inquiries of the party so as to be fully apprised of the circumstances surrounding the agreement. The party should be advised of his or her legal rights and obligations in relation to the subject matter of the agreement and advised of the consequences associated with a refusal to sign. The solicitor should offer his or her opinion on the question of whether it is appropriate for the party to sign the agreement in all of the circumstances. It is only with that kind of advice that the party can make an informed decision about the advisability of entering into the agreement as opposed to pursuing some other course. ...

[45] In Bradshaw v. Bradshaw, 2011 BCSC 1103, which refers to Gurney, the Court summarized the principles concerning independent legal advice in the family law context as follows:

[49] Independent legal advice, in the family law context, is important because it ensures that the spouses are fully aware of their statutory and common law rights and obligations. It safeguards against one spouse taking unfair advantage of another and redresses or at least minimizes disparity of bargaining power between them... In Gurney, Pitfield J. found that "the lack of independent legal advice in this case is not fatal and the agreement should not be set aside because of its absence" (at para. 30). Indeed, the absence of independent legal advice will not, by itself, invalidate an agreement ... Nor will the receipt of independent legal advice automatically cure or neutralize one or both spouses' vulnerabilities; in other words, it will not protect an otherwise invalid or unfair contract ...

[46] I return to s. 65(1)(f) and the factors of the capacities or liabilities of a spouse. I have found the claimant did not have an accurate understanding of the respondent’s income as he had no idea of the value of her pensions. ... In the words of Bradshaw, he was not "fully aware" of his rights and obligations. When these facts are taken into account, I conclude the agreement is unfair. The respondent received the matrimonial home and retained all her pensions. She gave up little. The claimant gave up much. In the result, the statute permits the Court to divide the property appropriately.

The lesson from Giebelhaus for counsel is simple:

• ensure you understand the circumstances surrounding the agreement;
• advise the client as to his or her rights and obligations in relation to the topics covered in the agreement;
• advise the client as to the consequences of not signing the agreement; and,
• give the client your opinion as to whether it is appropriate for the client to sign the agreement in all of the circumstances.

The lesson for parties seeking independent legal advice is more important:

• not having legal advice will not necessarily let you out of an agreement you have signed; however,
• having legal advice will not leave you stuck with an invalid or unfair contract, especially if the advice you got was substandard.

In other words, although ensuring that your spouse gets independent legal advice will help to prevent your spouse from claiming "I didn't know what I was doing" to get out of an agreement, if the agreement is fundamentally bad or unfair, all the legal advice in the world won't bullet-proof your agreement.

Guest Column: "Pros and Cons of Divorced Parents Sharing a Nanny"

by Maryanne Williams

Even the most amicable divorce is likely to leave your children feeling confused and disillusioned, especially if that divorce contributes to a shift in economic status or is the driving force behind a move from the home they’ve grown up in. Because a divorce may facilitate the need for a previously stay-at-home parent to return to the workforce, it may also leave parents in need of a full-time childcare provider. Sharing a nanny with your ex certainly has its pros and cons; however there are a few things to consider before making your final childcare decision.

Pros of Sharing a Nanny with Your Ex-Spouse

If your nanny was an established part of your kids’ daily routine before you separated from your ex, then she’s likely to be one of the few remaining bits of stability they can cling to. When so much else has changed in their life, being cared for by the same person that they’ve known and loved since before their family and household dissolved can make the transition easier for some children. Nannies that are able to remain neutral and avoid choosing sides can also prove to be very valuable mediators in times of tension, which are unfortunately quite common, especially in the earliest stages of a divorce.

Maintaining a stable and reliable schedule can be particularly difficult for parents that share joint custody, as children are forced to split their time between two separate homes and adapt to the changing personal schedules of the two separate parents that once functioned as a unit. When Nanny accompanies kids from one home to another, and sees to their needs and well-being just as she always has, the transition from one home to two can be made significantly smoother. Parents can also avoid scheduling confusion regarding picking kids up from and dropping them off at after-school activities, sports practices, or lesson rehearsals by delegating the task to one neutral party. Few things add insult to the existing injury of a divorce in the family like being lost in the shuffle between them and left at school or forgotten at practice, but it can happen when two people are still in the process of ironing out the proverbial kinks in scheduling that accompany joint custody.

Nannies that spend the majority of each day with their charges are also intimately familiar with the comfort objects, favorite toys, and other details that might be forgotten when bags are packed by parents for shuffling between homes. These aren’t as likely to slip Nanny’s mind making them less likely to be forgotten. She can also offer reassurance to kids by being nearby despite the relative unfamiliarity of new homes and neighborhoods. If you’re both forced to move from the home that your children grew up in, your kids may also be separated from the neighborhood playmates that they’ve maintained friendships with for most of their lives, and neither you nor your spouse is likely to have time for ferrying kids between play dates. This is another situation in which your nanny is worth her weight in gold: by making herself available to both you and your ex, she will be able to help your kids stay in touch with the friends that they might otherwise grow apart from.

Finally, sharing the expense of Nanny’s salary may be the only way to make the arrangement financially feasible; a major plus if you’re committed to avoiding center-based daycare.

Cons of Sharing a Nanny with Your Ex

Despite the stability and familiarity that your nanny provides to your children during the tumultuous divorce proceedings and their aftermath, there are a few drawbacks to sharing her with your ex-spouse. The biggest concern is her ability to remain neutral, because she will be in the unique position of either quelling or fanning the flames of continued conflicts by sharing sensitive information that she’s privy to through her regular contact with both parties. This can be particularly damaging if you’re still in the process of finalizing your divorce, especially if it’s a bitter one.

Sharing a live-in nanny could also create the necessity for an additional private bedroom, which may create a financial strain for parents that are already cash-strapped as a result of their divorce. In post-divorce dwellings, on both sides of the fence, space can be at a premium. Still, the days of Nanny sleeping in the same room as her charges are long over; if you intend to retain a live-in nanny, you may both need to provide a private space for her to decompress in and relax away from the demands of her job. Those demands may be exponentially increased when she’s forced to play intermediary between battling divorcees, which also increases her risk of burn out.

Ultimately, the decision to share your nanny with your ex-spouse is one that must be made by the three of you, and with full disclosure by all parties about expectations and responsibilities.

Despite the stability and familiarity that your nanny provides to your children during the tumultuous divorce proceedings and their aftermath, there are a few drawbacks to sharing her with your ex-spouse. The biggest concern is her ability to remain neutral, because she will be in the unique position of either quelling or fanning the flames of continued conflicts by sharing sensitive information that she’s privy to through her regular contact with both parties. This can be particularly damaging if you’re still in the process of finalizing your divorce, especially if it’s a bitter one.

Sharing a live-in nanny could also create the necessity for an additional private bedroom, which may create a financial strain for parents that are already cash-strapped as a result of their divorce. In post-divorce dwellings, on both sides of the fence, space can be at a premium. Still, the days of Nanny sleeping in the same room as her charges are long over; if you intend to retain a live-in nanny, you may both need to provide a private space for her to decompress in and relax away from the demands of her job. Those demands may be exponentially increased when she’s forced to play intermediary between battling divorcees, which also increases her risk of burn out.

Ultimately, the decision to share your nanny with your ex-spouse is one that must be made by the three of you, and with full disclosure by all parties about expectations and responsibilities.

About Maryann Williams

Maryannn Williams is an ex-nanny. Passionate about thought leadership and writing, Maryanne regularly contributes to various career, social media, public relations, branding, and parenting blogs and websites, including www.shareananny.com where this article was originally published. She also provides value to nanny service by giving advice on site design, as well as features and functionality, to provide more and more value to nannies and families across the U.S. and Canada. She can be found at william.mary11@gmail.com.
 

BC Courts Release Policy on Use of Electronic Devices

The courts of British Columbia have today released a rare joint policy statement (PDF) on the use of electronic devices in courtrooms which will take effect on 17 September 2012. Here's a summary.

Prohibited Uses of Electronic Devices

1. The use of electronic devices — defined as anything capable of recording or transmitting audio or data — to "transmit or receive text" is prohibited except as permitted by the policy statement.
2. The use of electronic devices to record images or video is prohibited.
3. The use of electronic devices to transcribe proceedings in court is prohibited.
4. The use of electronic devices in a manner that interferes with courtroom electronics or courtroom decorum is prohibited.

Permitted Uses for the General Public

1. Any person may unobtrusively transmit or receive text in a courtroom of the Court of Appeal.

Permitted Uses for Lawyers and Accredited Media

1. Lawyers and accredited members of the media may unobtrusively transmit or receive text in a courtroom of the Supreme Court and Court of Appeal.
2. Accredited members of the media may record proceedings in any courtroom for the sole purpose of verifying their notes.

Nothing in this policy statement restricts the autonomy of individual judges to manage their courtrooms and the proceedings before them. Nothing in the policy statement alters the effect of any publication bans or sealing orders that may be in effect in respect of a proceeding.

Update: 2 August 2012

Ian Mulgrew has published an article on the Vancouver Sun website on the courts' new electronic device policy which begins as follows:

"The decision by B.C.’s two trial courts to allow in-court tweeting only by accredited journalists and lawyers smells of judicial snobbery. 

"There’s no good reason anyone with a legal degree, along with me and my ilk, should be allowed to fire off email and 140-character notes from a courtroom while an ordinary joe gets the bum’s rush from the sheriff."

Actually, there is a good reason. 

The concern about allowing someone to tweet from inside a courtroom, or email or text for that matter, is that the person could be sending information about the evidence being presented in court to influence the evidence of a subsequent witness, intimidate the witness into recanting or altering his or her evidence, or otherwise frustrate the trial process and the frankness of the testimony presented. It was likely for this reason that no prohibitions on tweeting or texting were imposed for Court of Appeal proceedings since the Court of Appeal does not hear oral evidence; the only courts subject to the prohibition are the two trial courts.

In other words, the likely purpose of the policy was to balance modernization of the court's approach to new technology against the risk to the integrity of the trial process. Like I said, it had nothing to do with "judicial snobbery."