Four crucial rules to help you win your case in Family Court

Jack has just been served with divorce papers (in lawyer’s terms, that’s a court application in which Jill is seeking a divorce, sole custody of the children, support, and many other things).  Stressed, Jack has not wasted one minute to immediately set up a meeting with his lawyer, and together they have discussed a strategy on how to respond to the court case, and how to behave now that the matter is before the court. As Jack will soon find out, there is rarely a quick and easy divorce (unless you have been separated for many years, all issues have been resolved and the only thing asked of the court is to finally grant the divorce).

The road to obtaining a final court order can be very long, time consuming and stressful.  Without your ongoing help and input, your lawyer’s power to obtain what is rightfully yours is significantly diminished.  You are the only person who knows the facts of your story inside out and as such, you are key to your lawyer’s ability to win your case.  If you do not behave properly during the long months it will take to bring the court proceeding to an end, you may be giving your ex-spouse what he/she needs to have the upper hand at the end.

Here are four simple – but ho! so very important – rules to follow to make the court proceeding much easier for your lawyer, yourself and the children:

1.      Keep a journal.  Keep a journal of all the important events taking place post-separation. Your former spouse may say things to you, or act in a manner that will need to be relayed to a judge down the road.  Memory is a faculty that forgets easily especially in times of extreme stress and crisis.  Keeping a detailed written record of these occurrences will serve as a helpful reminder at trial and will also enhance the credibility of your oral testimony since it was written at the time the events actually took place.

2.      Start collecting important documents. Going through a court process means presenting to the court all of the evidence it needs to make a fair decision about each disputed issue in your case.  For that to happen, you must provide the judge with all the relevant evidence supporting your position.  As soon as you separate and even before you separate, start collecting all of the necessary documents such as bank statements (confirming your debts and assets), income information, relevant contracts, business records, emails, letters, medical reports, expense receipts and so on.  Make photocopies of ALL documents that you think may be of importance, you never know when you will need them (we have an excellent program on gathering relevant documentation in our Study Box: Find out more (click here).

3.      Be polite and to the point in email contacts and refrain from using social media to vent your frustration. More especially if children are involved you will likely have to continue to communicate with your former spouse after you separate. If you must communicate with him or her, be polite and to the point. There is nothing more damaging to your case than your former spouse bringing emails or Facebook messages he or she received from you showing how angry, mean and denigrating you have been. Further, if you are seeking custody of your children, you need to show the court that you can effectively communicate and cooperate with your former spouse for the sake of your children.

4.      Be as reasonable as possible and maintain your credibility at all times.  This might be the most important tip you are given here.  It will be a long time before you are actually standing in the witness box telling your story.  In the meanwhile, the judge will only be able to assess your credibility by listening to what your lawyer is saying about you or by reading written materials prepared by your lawyer on your behalf.  Since they cannot really assess credibility (this means being able to tell whether you or your ex is lying) in those situations, they will give a good hard look at your actual actions:  Who has cut the other from the health plan coverage?  Who has maxed out the joint line of credit?  Who is refusing to pay his/her rightful share of the mortgage?  Who is asking for the sky, the moon and the stars as a starting settlement position?  It is said that your past behaviour is often a good indication of your current and future behaviour.  Think of how you want to be perceived and if you don’t like the current story, just change it positively. 

This practical advice may ultimately help you win your case in court.

Leaving the country with the children for March Break? Bring a Consent Letter!

Jill is planning to take a boat cruise with the children this March Break.  She is fed up of the cold winter, she is exhausted with the separation process and feels that a good family vacation would do some good.  Jack, however, does not feel the same way.  Jill has so far refused to cover her fair share of the mortgage and if she does not have money for that, she shouldn’t spend thousands on a luxurious vacation south. Jill doesn’t know what to do.  There is no way she can be in court before the scheduled trip and she is afraid that custom authorities will not let her through with the children if she does not have a consent letter signed by Jack… Or should she try anyway?

 

Traveling with children is always a challenge for parents, whether or not you are still together. If you travel with your children and the other parent is not part of the trip, you will need to get the other parent to sign a consent letter giving you permission to leave the country with the children.   A consent letter is normally required by customs whether you have sole custody or joint custody of your children.  It does not matter whether your custodial rights come from a separation agreement or a court order.  If you do not want any surprises at customs, make sure you pack your passport, the children’s passports and an original consent letter in the prescribed form.  The Department of Foreign Affairs and International Trade Canada provides an example of a consent letter that you may use to create your own letter.  For your convenience, you may access this consent letter directly from our FREE Toolbox (click here). However, it is advisable to have the consent letter notarized by a lawyer (or someone having authority to swear an oath such a doctor, legal assistant, city officials, etc.) to make sure that the validity of the other parent’s signature is not questioned by customs.

 

Most separation agreements provide that the other parent’s consent must be sought in advance, and that such consent cannot be unreasonably withheld.  But what happens if your ex-spouse refuses to sign the consent letter?  Unfortunately, this happens too often – but sometimes for very valid reasons (health or safety issues) but sometimes simply as a means to engage the other parent in conflict.  If your ex-spouse refuses to sign a consent letter for no valid reason, you may have to bring the matter to court to obtain the court’s authorization to travel with the children outside of the country.  If the court finds that your ex-spouse’s refusal was unreasonable, it can order your ex-spouse to pay for all of the legal fees you had to incur to obtain the court order.

 

This is of course an expensive – and extremely stressful – way to begin a vacation with your children.  You may also need to book an extra week of vacation just to recuperate!  To avoid these unfortunate situations and to keep having fun in the sun, make sure that your separation agreement or divorce order includes well-drafted and comprehensive travel provisions setting out clear expectations when traveling abroad with the children.