The Middle Ages: Alive and Well in North Carolina

I get a fair amount of spam posted as comments to this blog, which is why I screen for comments. Some people, you see, think that the search engine ranking of their website will go up the more links to their website appear in other websites, and so they troll the web looking for places to leave comments, comments that are just a vehicle for a link to their website.

An unusual comment caught my eye today, posted by a bogus Google+ user on behalf of Diener Law of North Carolina:

In the event that you are considering a separation with your accomplice, your first step will be to contract a family law lawyer to help you through the procedure

Apart from the humour of separation with your accomplice, the link the spammer was trying to promote was to "stolenspouse.com" — and that's what got my attention.

As it turns out, North Carolina has kept on its books a couple of matrimonial torts from the antique common law, the torts of alienation of affection and criminal conversation, and Diener Law, which does the usual civil, personal injury and family law litigation, has made a specialty of prosecuting and defending these charming torts. stolenspouse.com is owned by Diener.

A "tort" is doing something that causes harm to someone else, which gives that person a right to sue you. Battery, hitting someone, is a tort. So is falsely imprisoning someone, slandering someone or running into someone with your car, or digging a hole in your front lawn that someone falls into.

A "matrimonial tort" is a tort that causes harm to someone by interfering with his or her marriage or right to be married. These torts are so delightfully old-fashioned, and misogynist, that most industrialized nations kicked them to the curb sometime in the 1960s and 1970s. Needless to say, I was tickled that a few of these yet survive in North America. Here are a few of my favourites from the good old days:

· A suit could be brought for jactitation of marriage, the false boasting of married status, which could result in a decree in the nature of an injunction restraining the respondent from making any further claim of marriage to the applicant.  

· An engaged person could sue for breach of promise to marry, which might lead to an award of damages in contract. 

· A husband could sue a third party for the ravishment of his wife, which could result in damages against a respondent who had taken her away thereafter. 

· A husband could sue a third party for enticing and harbouring his wife. 

· A suit could be brought for loss of consortium where the conduct of a third party, either by contract or by tort, caused the husband to lose the companionship and sexual services of his wife.

And this is one of the reasons why I love family law.

The tort of "alienation of affection," which Diener handles, is a species of loss of consortium. The case of Kungl v Schiefer from 1962 was one of the last such cases to be heard in Canada, and the husband's sued his wife's lover for alienating her affections from him, "thereby destroying the plaintiff’s home and marriage and causing the plaintiff to lose the enjoyment of the society, affection, comfort and services of his said wife." The claim resulted in an award of $10,000 at trial, on the basis that:

"The wife, while living under her husband’s roof, had entirely ceased to discharge any wifely function. She slept in her own room, locking the door. She refused to speak to her husband; and he was fully deprived of her consortium as if she lived in a separate building,"

however the case was ultimately thrown out by the Supreme Court of Canada. Here is Diener Law's charming, oddly pastoral description of the tort:

"North Carolina is one of a handful of states that recognize a 'heart balm' tort know as alienation of affection. It is called a 'heart balm' tort because its goal is to provide money damages for emotional harm. The North Carolina Supreme Court has gone so far as to recognize this cause of action for damages against one who wrongfully and maliciously alienates the affections of a spouse as a 'fundamental common law right'."

A suit could be brought against a third party who had intercourse with a spouse under the tort of "criminal conversation," Diener's other speciality, the tort of "debauching or seducing of a wife or husband," which was avaiable whether the spouse had consented to the debauchery or not. The Ontario Superior Court, in the 1921 decision of Maguire v Maguire, described this tort thusly:

"[T]he gist of the action of criminal conversation is not merely the loss of the society, comfort and assistance of the wife, but that it includes also the wrong done by the intolerable insult to which he has be subjected by the corruption of his wife."

Here's how Diener describes criminal conversation:

"Essentially, criminal conversation is adultery. Like alienation of affection, criminal conversation is referred to as a 'heart balm action' because it seeks to award money damages for emotion harm. This tort is based on the common law 'fundamental right to exclusive sexual intercourse between spouses'."

Imagine that. I suppose the real lesson here is that you'd better not have sex with someone else's spouse in North Carolina.

Sadly, suits for criminal conversation were forbidden by the British Columbia Family Relations Act of 1978 which, in its 1996 version, said at s. 123:

(1) An action must not be maintained for restitution of conjugal rights, loss of consortium, criminal conversation or jactitation of marriage. 

(2) An action must not be maintained for

(a) enticement of a spouse, 

(b) harbouring of a spouse, or 

(c) breach of promise of marriage.

I'd love to say that the loss of these quaintly sexist, and ever so conservative, torts is a bad thing, however the present no-fault system really works a lot better, costs people a lot less money and results in a lot less enmity and rancour. You've come a long way since the middle ages, baby.

Update: 28 May 2014

My colleague John Nelson wrote to ask if I'd ever researched the tort of seduction. I was about to reply that this was a criminal matter, not a tort, but I thought to check my copy of Eversley on Domestic Relations, 1926 edition.

Sure enough, a parent could sue for the seduction of a daughter, and action based on the old law of master and servant. A parent was entitle to sue the seducer when, as a result of the seduction, his or her daughter had become pregnant and the parent was thereby deprived of the child's services. Not much of a "heart balm" action.

A Brief Guide to Making a Better Argument

The ability to muster up a decent argument is an important life skill; it's why we live in a democratic civil society governed by the rule of law rather than an anarchic Thunderdome where might makes right. It's not just first-year university students who benefit from the ability to make a good argument. It's what you need when you want to pitch an idea to your boss, ask for a raise, write an editorial, sell a product, argue an application in court, or comment on a blog post.

The fundamental purpose of an argument is to persuade the listener to reach a particular conclusion by giving reasons why the conclusion is correct. The giving reasons part of this is really important; saying "just 'cause" won't cut it. Giving reasons is the hard part of making an argument because you really need to think about exactly why your conclusion is correct.

Here, for example, is a simple but valid argument:

All cats are mammals. All mammals die. Therefore all cats die.

If the reasons for the argument are true (that cats are mammals and that mammals die), then the conclusion must be true. This is very basic example of a valid argument; you might make other, more complicated valid arguments about:

• why you should buy this car as opposed to that car,
• why you cast your vote a particular way during an election, or why you might decide not to vote at all,
• why you and your spouse should separate,
• why a certain parenting schedule should prevail after separation, or
• why someone's argument in a blog post is incorrect.

However, not all arguments are good arguments. Some are contradictory or nonsensical, and others contain errors of reasoning. For example, here's an argument that sounds like a good argument:

Some people are mechanics. Some mechanics fix cars. Therefore some people fix cars.

But it's not a good argument. Here's a counter-example that shows the error in reasoning:

Some machines are capable of flight. Some things capable of flight are birds. Therefore some machines are birds.

Formal logic errors can be difficult to detect, but they're fun to find when you do. Of course, in legal matters, finding a logic error can depend on not just the structure of an argument, but on having a deeper understanding of the legal principles that apply, and equally deep understanding of the facts. For example, an argument like

I am entitled to see the children and I am required to pay child support. She doesn't let me see the children. Therefore I don't have to pay child support.

won't fly, even though it may sound reasonable at first glance. The reason why it won't fly is that there is no legal connection between a parent's obligation to pay child support and a parent's entitlement to spend time with the children support is being paid for. They are entirely separate issues.

As well as formal logic errors and errors of law, there are the informal logic errors called fallacies. These are errors in how we think about things and analyze a problem, and frequently appear in letters to the editor, arguments in court and comments to blog posts. The following are a few of my favourite fallacies.

The circular argument

In this sort of argument, also called the circulus in demonstrando, the correctness of the conclusion is assumed and becomes the reason why the conclusion is correct. For example:

A equal parenting schedule is fair because it is an equal parenting schedule.

Arguments like this aren't very helpful because the reason for the conclusion is the conclusion itself.

Argument from ignorance

This argument, the argumentum ad ignorantiam, says that something is true because it hasn't been proven not to be true, or that something is false because it hasn't been proven to be true. For example:

This bill simply makes it the applicant's job to prove that it is NOT in the best interests of the child to have that sort of arrangement. So you will have to explain better why this isn't beneficial. Children have a right to an equal relationship with their parents.

This argument says that because the original speaker has not explained why a proposed legal presumption is inappropriate to the satisfaction of the speaker that it must be appropriate. The argument isn't very helpful because it doesn't add any information to the discussion in support of the speaker's views apart from his disagreement with the position of the original speaker.

The argument against the person

Also known as an ad hominem argument, this argument argues for its conclusion by avoiding the actual subject at issue and attacking the other person. Here are a number of examples:

Looks like ol' JP and his cohorts here stand to lose a significant amount of income if equal parenting amendments pass.

What it this? I read this in its entirety and its a blatent [sic] attack piece. Misrepresentation at its worst. By who else but a Family Law Lawyer. By the way this is the group who stand to lost the most if such an ammendment [sic] were to be made into law. Compensation cowboys, the scum of the earth.

Surprise, surprise! A lawyer doesn't like this bill and has misrepresented it. How would you hold custody over opposing counsels head if this went through? It certainly will be hard to draw out, expensive and desperate fights if both parties are on equal footing, won't it?

Perhaps being a Family Law lawyer you are just used to presenting baseless assertions.

The problem with arguments like these is that they say nothing about the subject at issue. They merely attack the person who is disagreed with. They also come across as rather juvenile and undermine the speaker's credibility.

Argument by appeal to authority

This argument, also called the argumentum ab auctoritate, tries to support its conclusion because of the authority or standing of the person making the argument, or of another person who has made the argument. For example:

We strongly disagree with your opinions. Leading Women For Shared Parenting is an international child advocacy group with but one cause: a rebuttable presumption of shared parenting in family law. We have a strong group of practicing family lawyers, domestic violence advocates, shared parenting researchers, elected officials and others who all support shared parenting.

This is yet another kind of argument which explains nothing about the reasons supporting the conclusion, and the context in which the argument is made, including in reply to the argument of someone else, is irrelevant. It says "this conclusion is correct because it is I who hold it." Unless you are prepared to uncritically subscribe to the speaker's authority, this argument is pointless.

Here's another example, in which the speaker merely quotes someone in a position of authority and high social regard:

"If there is a divorce in the family, I urge a presumption of joint custody of the children. Whereas it is impossible to change thousands of years of sex-role stereotyping through legislation, we can hope, in an existential fashion, that attitudes can be changed through education and the passage of laws." 

- Karen DeCrow, American feminist attorney, President of the National Organization for Women

The fact that Ms DeCrow has said this doesn't mean that she is right, and, as a result, it doesn't mean that the speaker is right either. Here's a counter-example to prove my point.

"Mars is somewhat the same distance from the Sun, which is very important. We have seen pictures where there are canals, we believe, and water. If there is water, that means there is oxygen. If there's oxygen, that means we can breathe." 

- Dan Quayle, American business person, former Vice-President of the United States of America.

See what I mean?

However, it is not an appeal to authority to refer the listener to a source of information, such as website, book, journal or academic paper. For example:

The work of Professor John Wade is a good starting point on the subject.

The difference here is that speaker is providing a resource for further reading on the part of the listener rather than relying on the resource as authority for the speaker's proposition.

Argument by taking out of context

This sort of argument, also called the fallacy by quoting out of context, is particularly popular in American politics and attacks a position by taking the speaker's original words out of context and dumping them into a new context. for example:

And of course all the child murders in Australia is a good reason to oppose it too, right JP?

This selective reference distorts the speaker's meaning by presenting them without explaining the circumstances surrounding the original speech.

The red herring argument

This argument presents a side- or non-issue to distract from the issue being discussed. For example, a statement like

The argument that I don't buy into is that if one parent was previously a bread winner they are presumed to be a less capable parent.

which purports to reply to an argument or reason that has not been stated by the original speaker. This sort of argument says nothing about the main subject under discussion. Here's another:

One also wonders why the rights of the father mean nothing and their financial futures are destroyed without any regard to their rights or feelings. First their children are forcefully taken away from them, then they are forced to pay crippling amounts of money to "support" children they rarely get to see. Sounds suspiciously like financial slavery to me.

In the context of a discussion about the merits of a presumption in favour of shared parenting, the payment of child support and histrionic claims of "financial slavery" are irrelevant and don't add anything to the central issue of shared parenting. They merely distract from the subject of the discussion.

Argument by Shifting the Burden of Proof

In this argument, the speaker argues that it is the listener's job to disprove the speaker's conclusion rather than providing reasons to prove the speaker's conclusion. For example:

There's no justifiable reason for not giving equal access from day one of most separations.

This sort of non-argument provides no support for the speaker's conclusion.

The argument through false dichotomy

Also called the black-or-white fallacy, this argument sets up two positions as polar opposites, implying that the subject of the argument is either all one thing or all the other. For example:

You know what the presumption is in high conflict separations currently. It is specifically 2 weekends a month for the "visitor" parent, with 1 movie night in between.

In the context of a discussion about shared parenting, this misleading statement suggests that either there is shared parenting or one parent has the children for two weekends a month, as if there were no other potential arrangements for the children's time. Here's another example:

To clarify, when a mother wins custody, a father must lose it. He must give up has children to the mother or go to jail.

In fact, joint custody — where both parents have custody — is a very common post-separation arrangement in Canada and people don't go to jail about it. The point of arguments like these is that they try to strengthen the speaker's point by establishing the greatest possible contrast between the two positions and eliminating the possibility of a middle ground. And another example:

One wonders why the system must be adversarial, arbitrarily picking winners and losers. One also wonders why the winners are almost always women and the losers are almost always men. One also wonders why the rights of the father mean nothing and their financial futures are destroyed without any regard to their rights or feelings.

The appeal to hypocrisy argument

This argument, also called the tu quoque fallacy, attempts to counter an argument by asserting that the original speaker has personally behaved in a manner inconsistent with his or her argument. It attacks the speaker rather than the argument. For example:

"A equal parenting schedule is fair because it is an equal parenting schedule." Those were YOUR words JP! No one in your comment section wrote that. Again, nice straw man you knocked down there.

This argument attacks the speaker rather than the substance of the argument, and in this example is especially egregious as the premise itself is false. Here's another example:

Did you get my challenge to ACTUALLY post evidence in support of your claim that "the Australian experiment was disastrous"? You must be busy over the holiday season. Or perhaps being a Family Law lawyer you are just used to presenting baseless assertions.

The problem with the appeal to hypocrisy is that, like the ad hominem argument, it attacks the speaker while avoiding addressing the issue on its merits.


I will close by repeating my remarks from the beginning of this post. The fundamental purpose of an argument is to persuade the listener to reach a particular conclusion by giving reasons why the conclusion is correct. The giving reasons part of this is really important; saying "just 'cause" won't cut it. Giving reasons is the hard part of making an argument because you really need to think about exactly why your conclusion is correct. 

Properly reasoned arguments, advanced without formal logical errors or fallacies, are, in general, compelling and encourage respect for the speaker and the point he or she is making. Good arguments can also move the listener toward accepting the speaker's conclusion, and this accomplishment can be tremendously important, whether the listener is a judge, a client or a potential client, a police officer or border guard, an employer, a landlord, a politician or the author of a blog. What I have presented here is only a small fraction of the formal and informal logic errors that can sink an argument. If you are interested in working on your ability to argue, you should consider joining a debating club, such as the UBC Debate Society, picking up a book on logic, or taking a course in logic from your local university's Department of Philosophy. 

Broken Engagements: Who gets the ring?

The CBC has reported on a ridiculously fractious former couple, under the descriptive headline "Estranged Couple Squares Off Over $16K Engagement Ring." (What's ridiculous is that at least one of them seems to think that it's cost-effective to start a lawsuit with such a low potential pay day.) Since engagements get broken all the time, you might wonder what the rules are, and actually it's pretty straightforward.

Under the old law of domestic relations, when a marriage proposal is accepted, a contract is formed. In fact, you used to be able to sue for breach of promise to marry. When the contract is breached, the person who breaches the contract is not entitled to the ring. In other words, if the proposer breaks it off, the other person gets to keep the ring; if the person accepting the proposal breaks it off, the proposer gets the ring back.

I wish this former couple the very best of luck in resolving their case for less than the replacement cost of the ring at issue.

Still More Family News from KTLA

I popped by the website of Los Angeles-based KTLA Television again today and their fine, fine reportage continues apace. Here are just some of the stories you'll find under the Popular Stories banner today:

• Toddler Badly Beaten For Mispronouncing Sister's Name
• New Mom Goes Berserk After Smoking Bath Salts in Maternity Ward
• 9-Year-Old Goes On Wild Tubing Ride With Dolphins
• 19 Kids Found Alone in Filthy, Hot Kentucky Home

There really is something strangely compelling about KTLA's choice of content.

More Family News from KTLA

In my 5 May 2012 post "If Only I Could Do It All Over Again: Hindsight is 20/20," I wrote about an article from Los Angeles-based KTLA Television on the revenge of a jilted girlfriend which, sadly, turned out to be a hoax. I also mentioned the "disturbing family-related news" offered by KTLA.

I happened by KTLA's website again today, and they have managed to maintain an even keel on their family news reportage. Here are the stories you'll find under the Popular Stories banner today:

• Man Chops Off Daughter's Head for 'Indecent Behavior'
• Baby Dies After Being Fed Vodka And Baby Formula
• Mothers Brawl at South L.A. Preschool Graduation
• Children Left Bound, Blindfolded in Walmart Parking Lot
• Parents Track Down Daughter's Pimp, Kill Him

Holy cow. But don't let these depressing stories get you down. For something lighter, scroll down a bit and check out their photo gallery, "Adorable Cats Wearing Fruit Hats."

If Only I Could Do It All Over Again: Hindsight is 20/20

If you ever have a hankering for disturbing family-related news out of the United States, start with the website of KTLA Television out of Los Angeles, California. If you tuned in this week, you might have been interested in stories with these headlines

• Mom Arrested for Allegedly Taking 5-year-old into Tanning Booth
• Drunk Grandparents Tow Girl in Toy Car Behind SUV
• Mother Pleads Not Guilty to Bleaching Toddler's Eyes
• Woman in Mexico Claims She's Pregnant With Nine Babies
• Crazed Father Bites Off Boy's Penis

(I'm not kidding, these stories all appeared under the Popular Stories banner on KTLA's website when I wrote this post), or you might have read about the peculiar case of Marek Olszewski.

Mr. Olszewski had the stunningly poor judgment, it seems, of visiting his dentist ex-girlfriend, a Ms. Machowiak, for help with a toothache a mere two days after dumping her for another woman. I can do no better than the fine reportage of KTLA itself:

Anna Machowiak agreed [to help], but instead of treating his toothache, she gave him a large dose of anesthetic and pulled out all his teeth.

"I tried to be professional and detach myself from my emotions," Anna Machowiak told the Daily Mail. "But when I saw him lying there, I just thought, 'What a bastard'." 

The 34-year-old then wrapped his head in a large bandage. 

When he came to she told him there had been some complications and suggested he wait until he got home to remove the bandage. 

"I knew something was wrong because when I woke up I couldn't feel any teeth and my jaw was strapped up with bandages," Olszewski told the Daily Mail. 

When Mochowiak later moved the bandages he was horrified. "I looked in the mirror and couldn't f***king believe it. The b**ch had emptied my mouth." 

Although I cannot quite put my finger on it, there is a lesson to be learned buried somewhere in this story. Perhaps it concerns the perils of dating the professionally-employed; perhaps it's about KTLA's asterisk policy.

(It was unusually difficult to come up with the title of this post. Alternatives included "An Eye for an Eye, A Tooth for a What?," "Tickling the Ivories," "Revenge Is a Dish Best Served with Floss" and "Ex With a Sweet Tooth, Yours." Have a suggestion of your own? Leave a comment.)

Update: 9 May 2012

Too funny to be true? Yup, says the Los Angeles Times.

A Reply to the Times Colonist

On 19 November 2011, the Victoria Times Colonist published a somewhat ill-informed editorial concerning the Family Law Act tabled last week in the legislature. As it happens, I like the new legislation, and I thought I'd provide a few comments in reply.

Here's the Colonist's editorial verbatim, without a word missing, in red with my comments following.

"A case can be made that the new Family Law Act, tabled Monday in the legislature, is the most far reaching social reform of our era. The massive bill completely redefines the civil structures that underpin marriage and family life."

This legislation certainly is an exercise in social policy. However, it doesn't "completely redefine" the civil structures that underpin marriage and family life; it redesigns property laws from a model shared with some of the maritime provinces to a model shared with Alberta and Ontario, and extends property rights from married couples to unmarried couples who have cohabited for at least two years. It doesn't change our recognition of unmarried spousal and parental relationships, and it doesn't change the law on child support or spousal support.

"It also rewrites the statute book. Close to 100 separate acts are being amended to accommodate the changes involved."

Most of the changes update references to "husband and wife" to "spouse" and "mother or father" to "parent" and are barely worth notice. More significant changes are only being made to the Commercial Arbitration Act, the Infants Act, the Child, Family and Community Service Act and the Vital Statistics Act, but the changes don't rewrite the basic scheme of these acts, they just accommodate them to the changes in the Family Law Act.

"In outlining the package, Attorney-General Shirley Bond has stressed two broad themes.

"The bill makes family law more child-centred. This is being done by changing the focus of custody hearings. In future, judges will be encouraged to set aside parental interests and award custody purely on the basis of what is best for the children.

"And there is a strong emphasis on mediation, rather than lawsuits, to settle divorce proceedings. These are valuable reforms, and the government is to be commended for them."

These are indeed the themes the Attorney General has chosen to emphasize. They're hardly the only important changes, they're just the ones that would fit into a sound bite for the evening news.

"The move toward mediation in particular is long overdue. Family quarrels currently occupy a quarter of all the court time in B.C. Anything that discourages divisive and wasteful litigation should be welcomed."

Actually, the move toward mediation has been underway for a couple of decades now and is hardly overdue. Mandatory mediation has been a feature of the Supreme Court civil system since 2001 and optional mediation has been available from family justice counsellors in the Provincial Court since 2003, never mind the judicial mediation offered at judicial case conferences and family case conferences.

"But important as these changes are, they are trivial compared with some real bombshells in the legislation. There are three to note:

"- At present, when a married couple separates, both are entitled to an equal share of all property. Current law draws no distinction between assets acquired during the marriage and those owned before it. All are divided equally.

"The adoption of this principle was one of the great emancipating forces of the 20th century. By protecting financially weaker spouses, who were often women, it made marriage a union of equals.

"But the new act eliminates this provision entirely. In future, property acquired prior to a marriage can be excluded if the spouse who owned it wishes. That sounds more like a Hollywood prenuptial agreement than a contract of marriage."

As I've mentioned, the current system for property division is shared by only a few other provinces. Most of Canada deals with property division on the Alberta and Ontario models which split property acquired after marriage equally and share in the growth in value of assets brought into the marriage; many people find this system of property sharing more intuitively appropriate than the current system.

The real "emancipating forces" which equalized women's property rights were the Married Women's Property Acts of the eighteenth, nineteenth and early twentieth centuries which gradually gave married women equal property rights with their unmarried sisters, and eventually equal property rights with their husbands... but this all happened long before the Family Relations Acts of 1972 and 1978. Or the Family Law Act of 2011, for that matter.

"- The act extends the division of property to common-law arrangements. Presently, couples who do not wish to marry can live together without merging their finances.

"That is being changed. If a couple cohabits for two years, upon separation either will be entitled to an equal share of whatever assets they accumulate. Pension contributions are included in the calculation.

"This is too heavy-handed. If the qualifying period were set at five years instead of two, such a policy might be justified.

"But it is unreasonable to extend marital obligations to couples who may have no intention of staying together.

"This will simply back up the court system even further, as the full force of law comes down on thousands of casual arrangements."

This too is an issue of social policy. Under the current law, unmarried spouses are excluded from the parts of the Family Relations Act that divide property between married couples. Under the existing regime, unless a couple own property together, an unmarried spouse gets nothing, no matter if the couple has been together for two years, five years or twenty.

An unmarried spouse who wishes to make a claim against property owned by the other spouse must make a difficult claim under the equitable doctrine of unjust enrichment, which may result in the spouse being entitled to some share in the property. Such claims are hard to prove, which means that they're expensive, and they rarely result in an entitlement anywhere close to what the couple would have had, had they been married.

The choice facing the government was to continue the inequity between married and unmarried relationships or to recognize the increasing frequency of long-term unmarried relationships and give unmarried spouses the rights married spouses have enjoyed since 1978.

The Colonist is right to observe that there is an element of unfairness to this for couples in existing unmarried spousal relationships. That is, however, the nature of legislative change; either it happens and hurts some people now or it never happens and hurts a lot more people as an injustice is perpetuated. Couples who wish to avoid the effect of the new act are best advised to get it together and make a property agreement now, before the new law takes legal effect.

"- While this omnibus bill deals with nearly every conceivable aspect of family law, there is one it ignores. There are no provisions to address the unequal treatment of fathers.

"It's well known that separation proceedings tilt against men when it comes to awarding child custody. In disputed cases, only 10 per cent of fathers are successful."

This is unmitigated and egregious hooey. This argument rests on an unproven allegation that fathers are treated unequally and ignores the fact that orders for joint custody have become the unwritten rule and presumptive starting point over the last fifteen years. More separated couples have joint custody of their children now than at any point in recorded legal history.

"The minister might believe her legislation deals with this concern by encouraging judges to ignore parental interests and focus on the children. But experience shows that the bias against fathers is deeply rooted in our family law system.

"In a statute several years in the drafting, this inequity should have been dealt with."

The Colonist cites no authority for this sweeping condemnation of the justice system. Surely before dropping its institutional weight behind such an allegation, the paper could point to some objective support for such a profound contention? I'm positive that such an august paper wouldn't base an unsigned editorial on mere rumour and carping innuendo.

"These are all issues upon which reasonable people can disagree. Yet there are huge issues at stake.

"Marriage is the most important wealth-creating and wealth-diffusing institution in modern society. As it stands, the new act weakens that feature of marriage, even as it foists unwanted obligations on short-term relationships."

If I understand this argument, the Colonist claims that the new legislation weakens the "wealth-creating" and "wealth-diffusing" qualities of marriage. I have no idea what this means, however if the point is that marriage is inherently wealth-creating, surely this feature is shared with the ever-increasing numbers of long-term, unmarried spousal relationships? What is it exactly which makes an unmarried spousal relationship less economically valuable than a married relationship?

The Colonist is also off base in assuming that unmarried relationships are inherently "short-term." Many of these relationships are just as long, if not longer, than married relationships, and many involve a degree of financial enmeshment that is no less significant for the fact that they are unsolemnized.

"Both parties in the legislature have agreed to pass the bill in just a few days, virtually sight unseen. That would be a serious disservice.

"Such immense changes require a full airing. The government should put this over to the new year, and allow for a proper debate."

As a matter of fact, the Attorney General's office has taken enormous pains since 2006 to expose this legislation to public comment. It is not the case that this bill emerged one morning like mushrooms after the rain; there have been extensive public consultations, with various public groups as well as with the bench and bar. This legislation is hardly a rush job, it has been five years in the making.

You can still find many of the background papers published by the Ministry in the course of the Family Relations Act Review on its website; the consultation report is an especially worthwhile read.

Update: 22 November 2011

As it turns out, two colleagues of mine have managed to preempt my reply. Read the letters to the editor of Trudi Brown, Q.C. and Mary Mouat.

Your Computer, Your Separation and You

This post is about managing your electronic life after you and your partner have split up.

Change Your Passwords

Change all of your passwords to all of your electronic accounts. This includes your bank accounts, your ISP email account, your Hotmail, Yahoo and Gmail email accounts, your Twitter account, your blog and your Facebook accounts, and any other account you access through the internet. (Don't forget to reset the password to your computer, your phone and your voicemail while you're at it.)

You will also want to change your telephone access passwords with your bank, credit union and credit card companies, and you should update the list of people authorized to make changes to your utilities.

When you're picking a new password, don't pick the name of a child or pet or anything else which can be quickly guessed; you would not believe the number of clients of mine whose exes have hacked their accounts after the passwords had been changed! What you're looking for is a random word and a couple of numbers, plus a special character or two if they're allowed, which you can easily remember. For example:

27pickles#

cranky8fish!

h0m3sw33th0m3

If you can only pick numbers, don't pick four of the same number, 1234, your birthdate or a child's birthdate; pick something random and change it frequently.

Emails, Texts and Instant Messaging

Work on the assumption that everything you text, twitter or email to your ex will find its way into an affidavit. Write each message as if a judge will be reading it!

If you're on the receiving end of an unpleasant communication, on the other hand, keep a copy and make a print out. (This can be challenging with texts, but it can be done.) You must also resist the temptation to lash out and reply in kind.

Facebook

In addition to changing the permission settings for your ex, you want to be moderate in what you post. You know how you and your ex have all those friends in common? Assume that someone will be keeping your ex up to date.

Do you have any other tips to share? Please add a comment to this post.

Judge Forced to Name Child

The Daily Mail reports that a judge of the Family Court of Australia was put in the unenviable position of having to pick the name of a two year old child whose birth had yet to be registered as a result of her parents' squabble. Apparently, the child's parents split up before the child was born and couldn't agree on what name she should have. The father insisted on calling her by one name - and did - while the mother insisted on calling her by another - and did.

Having been forced to decide the matter, the court acted in the manner of all commonwealth family law courts and resolved the issue through a rigorous application common sense... after the father refused a proposal to simply hyphenate the two names. The court picked the name chosen by the mother as that was the name by which most people knew the child and because the root of the father's opposition to the name lay in his "determination to control the mother and her parenting" rather than some rational objection.

The Revenge of Facebook, Part I

I've often thought of writing about the modern mischief Facebook seems to egg on, but it's always seemed too easy a target. The notion of being "unfriended" just isn't as funny as it used to be. And then along comes Nesbitt v. Neufeld, a November 2010 decision of the Supreme Court of British Columbia, and I am reminded that there are still lessons to be learned.

Dr. Nesbitt and Ms. Neufeld had been engaged it what the judge described as "protracted family court litigation" and resulted in Ms. Neufeld having primary care of the child, with Dr. Nesbitt having supervised access. I'm sure the litigation rankled. In any event the recently-published decision of Mr. Justice Crawford concerns not the family law litigation but an action in which Ms. Neufeld sought damages for defamation and breach of privacy from Dr. Nesbitt.

Ms. Neufeld's complaints centred around a variety of publications the court found to be authored by Dr. Nesbitt, including the "Wicked Wendy Neufeld" website (some related material can still be found on blogspot) featuring material from the family law litigation and some of her private communications, and a Facebook page titled "Wendy Neufeld Support Group" containing hurtful and sarcastic comments. To quote the judge, "that Dr. Nesbitt would dress his vitriol in such shabby clothing shows again a complete lack of social awareness."

Anyhow, the point here is that we as a society are well past the posting of anonymous pages on telephone poles. We live in the internet age where the scurrilous vituperations of an aggrieved individual are spewed across the globe for all to read in a second, and, just as the audience is massive, all that's required to discover it is a single ego-search. Hit PRINT and the broadcast is there to be attached to your next affidavit as Exhibit "A". Again, here's Mr. Justice Crawford:

"In this age of instantaneous broadcast to an innumerable number of people over the Internet, courts have acknowledged the aggravating factor this can have in determining whether the conduct at issue is defamatory and if so what the quantum of an award of damages should be."

The judge decided that Dr. Nesbitt had taken his custody fight with Ms. Neufeld "far outside the ordinary confines of the family court litigation," and awarded damages of $40,000 to Ms. Neufeld for breach of privacy and defamation, plus her special costs of the litigation on the basis that Dr. Nesbitt's conduct was "deserving of the Court's reproof."

I have to admit that I see things like this fairly frequently in my practice, sometimes as a result of wounded feelings, but sometimes and far worse as a result of a desire for revenge or retaliation. I won't moralize and tsk-tsk about the stupidity of such websites, blogs and Facebook pages; that ought to be obvious. Just remember that it's as easy to find and print these things as it is to post them, and I guarantee that they will find their way into an affidavit at the most inconvenient time possible.

Alberta Minister Pronounces upon the Proper Raising of Children

The CBC has reported that Alberta's Finance Minister, Iris Evans, has pronounced upon the raising of children in a recent speech to the Economic Club of Canada. According to the CBC, Minister Evans said that good parenting means that "when you're raising children, you don't both go off to work and leave them for somebody else to raise."

Of course, while we all wish we could stay at home to raise our kids, that's not always possible. Frankly, these days it seems that it's an almost universal economic necessity for both parents to bring home an income! One solution would be to raise the Canada Child Tax Benefit and the National Child Benefit Supplement to a level that would enable families to leave a parent in the home, but I'm not sure that such a suggestion would have much appeal to a conservative finance minister.