Since 1995, same-sex couples have had full marriage rights in Canada. Since these rights are not available in many U.S. states, American couples have travelled to Canada to get married. So far so good.
What happens, though, in the event that marriages of non-Canadian same-sex couples break down? Divorce may not be an option. If their home jurisdiction does not recognize same-sex marriage, it will not grant a divorce for such a union. Returning to Canada for a divorce is impractical because the Divorce Act states that one of the couple must have been “ordinarily resident in the province for at least one year immediately preceding the commencement of the proceeding.” This makes for what B.C. lawyer Barbara Findlay calls “divorce catch-22″:
“That means having more than just a mailing address,” explains [F]indlay. “It means having a personal presence according to case law, and that turns out to mean that for people who contracted a marriage here that don’t live in Canada, they are effectively denied a divorce.”
To make matters more complicated, even if one spouse is willing to reside in Canada for the requisite period of time, they are subject to visa requirements. An American citizen can usually enter Canada and stay for six months without a visa, but after six month must apply for an extension. In most circumstances, visitors to Canada are also not allowed to work.
The Ontario Family Law Blog has an excellent round-up with links on this aspect of gay marriage and divorce. Read it here.
(H/T: Brian Galbraith)
Mediate.com recently published the 300th issue of The Mediate.com Weekly. The web version of the Weekly is here.
The Weekly began 13 years ago under the guidance of Founding Editor John Helie. Over time, the newsletter became a bi-weekly and then weekly
publication under the leadership of Editors John Ford and Jim Melamed.
The Weekly offers the latest articles, news, blogs, calendar and resources and is available for Free here.
Brian Galbraith of Barrie, Ontario
The challenges such a decision pose are compounded in the case of separated or divorced parents who share custody. “Custody”, in this jurisdiction at least, is construed as authority to make major decisions in four areas of a child’s life: health, religious training, education and extracurricular activities.
Nancy Van Tine alerted me to this post by Brian Galbraith, a family lawyer in Barrie, Ontario, on this matter:
I always remind my clients ACBD: “Always Consult Before Deciding”.
If you share joint custody with your ex, you have an obligation to make all major decisions affecting your children together. This includes major medical decisions.
Whether to vaccinate your child is a “major decision” requiring you to discuss it and decide with your co-parent, if you share joint custody.
I suggest you call or email your ex and offer these links so your ex can become informed too. Avoid it becoming a power struggle. Stick to the facts and the best interests of your children.
Even if you don’t share joint custody, it is a good idea to consult with your ex before proceeding so that your ex spouse feels involved. Your children benefit from having two involved parents and participation in decision-making helps make a parent feel involved.
Excellent advice! Read the whole post here.
Sarah Shahi
For all of us who explain how we do mediation in our opening statements to clients, we know that the process is not the best known in the land.
It is to be hoped that “Facing Kate”, a new TV series in development by the USA Network may help change that. Kate is a San Francisco lawyer who leaves the practice of law to become a mediator.
Kate is played by Sarah Shahi, somewhat younger and more glamorous than my community of practice, including me!
(H/T: Diane Levin & Joe Markowitz)
(Click here for a big version)
Berrett-Koehler Publishers has a blog devoted to lists, as they say, “on just about everything that matters, by authors who know…”. Just the other day, the blog drew on the thinking of Ira Chaleff, who works on the other side of Leadership, namely Followership.
Chaleff “believes that part of being a good follower, and a hallmark of true followership, is to stand up and challenge our leaders when we disagree with their principles, motivations, or actions.”
Here’s the list of five good reasons to challenge the hierarchy, or to ’speak truth to power’: read more…
The text below is taken from vol. 1 issue 2 of”Conflict Chronicles” of October 15th, an email newsletter published by the Conflict Resolution Center of the University of North Dakota:
Carla and Joel came to mediation to work through their differences as they moved toward divorce. They met several times to talk about who would have primary custody of their two children, and what kind of parenting time could be worked out.
As with many couples, Carla had been thinking about separating long before Joel, who was still hurt and resistant to the idea. In fac[t], many times, Joel talked about the hatred he felt for his own mother for leaving his father, and would typically end with the threat, “I’m gonna make sure that the kids hate you as much as I hated my mom.”
Because of the mediators’ commitment to the ethics and principles of transformative mediation practice, they never lectured or stopped him, but rather reflected: “Joel, you seem to be so distraught about the situation that you are sure the kids will hate Carla for doing this.” Of course, Carla strongly argued against this action by Joel and reminded him of the abuse his mother suffered, but he didn’t seem to listen.
Surprisingly, between the second and third mediation sessions, Joel visited his mother on his own accord – the first visit in more than 12 years – and made amends for what had happened years ago. In that third mediation session, he cried, and told Carla about how this meeting with his mom had gone, and vowed never to allow that kind of hatred to impact his own children despite the divorce.
For the mediators, it was proof that people rarely change when pushed, or before your eyes, and that by trusting in the process and [...] in [the] parties’ capacity, your patience is often rewarded when the ‘bad dad’ emerges as a better dad.
As is not widely known outside the province of Ontario, experienced criminal defence lawyers here began a boycott of the legal aid program some four months ago by refusing to provide their services in serious cases and those involving “guns and gang legislation”. They argue that legal aid compensation has risen by just 15% since 1987 while the cost of living has risen by 75% in the same period. The highest rate a senior lawyer can now be paid is $97.00 an hour.
Hon. Chris Bentley, Attorney General of Ontario
The expansion of the boycott to the last four remaining unaffected areas (Ottawa, Brockville and Halton and Niagara regions) involves about 700 experienced lawyers and comes just days after the provincial Attorney General, Chris Bentley, proposed an infusion of $60 million into the legal aid budget over the next four years. (Ironically, Mr. Bentley was a vocal proponent of higher legal aid compensation when he was in criminal law practice himself.)
In proposing the additional funding, Mr. Bentley “[...] expressed a particular desire to help people resolve family law disputes through “collaborative and non-confrontational approaches.”
Mr. Bentley also endorsed a move to “block funding” for criminal cases – a method which allots set amounts to particular legal services, regardless of how much time they take to perform. read more…
