Stop focusing only on the negative

Jack and Jill have been separated for more than two years now.  However, Jill cannot stop talking negatively about Jack.  She cannot forget the names calling or the fact that he “lied” about his annual income to avoid paying child and spousal support.   When she feels tired, overworked, and stressed out by all conflicting demands on her time, Jill’s negative thoughts creep into her mind and play out like a movie. As a result, Jill is often depressed, she lacks energy and many of her girlfriends do not call her as much anymore.  Like many separated people, she has fallen prey to negative thinking… 

During and after a separation, people live periods of loss and grievance.  For many, separation is a failure.  Focusing only on the negative aspects of the relationship often helps a person justify to themselves and their entourage the reasons for the breakup. However, no one is served by holding onto negative thoughts indefinitely.  Getting counseling or divorce coaching is often necessary to move forward. 

 

Often those who think negatively do so out of habit.   It is a lot easier to dwell and complain about the 5% that is going “wrong” (i.e. the car that cut you off this morning) instead of focusing on the 95% that is going well (i.e. your health, job, children etc.). Studies have demonstrated that positive thinking can be extremely beneficial for improving self-confidence and psychological well-being, as well as boosting physical health.  Here are a few tips to help you maintain or develop a positive attitude:

1.      Meditate or do yoga - learn how to breathe and ease your mind;

2.      Smile – it will change your mood and relieve stress;

3.      Surround yourself with positive people –  a good friend can help you put things into perspective;

4.      Don’t play the victim even if your living situation is unbearable - there is always a way out; and

5.      Remember that no one is perfect – stop dwelling on the “what if”, learn from this life experience and move forward.

The children are finally 18, can I stop paying child support?

Jack’s brother, Sam, has twin daughters (Melany and Stephany) who will soon be 18 years old and who continue to live primarily with their mother since the separation. The adult girls have just graduated from high school.     Melany has been working in retail since she is 16 years old and in light of the career opportunities offered by her company she has decided for the time being to work full time in that industry and not pursue her post-secondary studies.    As for Stephany, she aspires to become a doctor and has been accepted to university.  Following the completion of her bachelor degree in sciences, she hopes to enter medical school to pursue her dream.    For the next three years, both girls intend to continue living with their mother   Sam wonders whether he still has an obligation to pay child support after the girls turn 18.

Child support does not necessarily end when a child turns 18.  Normally, child support will continue to be paid for an adult child if he/she enrolls into  a post-secondary study program or if the child is unable to support himself/herself as a result of a disability or illness.  When a child pursues a college or university education the child support obligation will usually end when the child receives his/her first post-secondary degree, although there are exceptions.

To the extent that the obligation to continue to pay child support exists, the monthly amount of support must be determined. This is where things get a bit more complicated.  Normally, if a child lives at home with one parent while pursuing his/her studies, the basic child support amount that was payable prior to the child turning 18 will likely continue to be payable after that date (this amount is set by the Federal Child Support Guidelines, based on the payor’s income). This makes sense since the “custodial” parent will have to continue to maintain a home for the child and to assume his/her day-to-day expenses (i.e., transportation, food, clothing).    However, if the child movesaway from home to attend school (normally 8 months out of 12), then the way child support is calculated would be different as we would have to take into consideration the child’s needs outside of the parent’s home, the reduced costs to the recipient parent when the child is living away from home and the child’s own ability to contribute to his or her living and school expenses.

In addition to paying the basic child support amount, the paying parent (such as Sam) would also have an obligation to contribute his/her share of the child’s extraordinary expenses.  These would include a portion of the child’s tuition fees, books and other school expenses, to the extent that the child is unable to cover all of those expenses with student loans, grants or their own income.

 

Although it may appear that child support obligations will never end, just remember that you are a parent for life.  In the end, giving your child a chance at living a successful and financially independent life (hopefully sooner rather than later…) is what you are here for in the first place, isn’t it?

If I have to see you in court honey, you’ll have to pay my legal fees!

Jack and Jill have been trying to settle their separation issues by themselves for a couple of months now. Jill is getting frustrated with Jack because he does not seem to take their separation seriously.   She does not see any other options than to retain a lawyer and go to court.  She is convinced that once they go to court the judge will tell Jack what he needs to hear.  But when Jill finally met with her lawyer, she was a bit surprised by (and disappointed with) her lawyer’s comments and reluctance to engage into a court action.  She wonders if she hired the right lawyer…  In fact, Jill’s lawyer has explained to her that the court process is not only very time and emotionally consuming, it will also be very costly.  However, Jill is convinced that she will win hands down on all issues and that, in the end,  Jack will be responsible to pay for all her legal fees.

 

Many separated couples believe that going to court is the only way they can get someone to pay attention to what they are saying. They believe that they are right, the other spouse is wrong and that the court room will be the venue where the winner will take it all.   But legal fees to get there are a very important aspect to consider when making the decision to resort to the judicial system.  While a court may order the “losing” spouse to pay part of the other spouse’s legal costs to prepare and attend court, it is highly unlikely that the judge will order that ALL costs incurred be paid back to the “winning” party.   In addition, considering that most cases eventually settle out of court (less than 3% of all family court cases end in a trial, where costs orders are made), opportunities to get the big fat cost order are very rare.

 

In addition, it is not because a party wins in court the he/she will necessarily get his/her legal costs paid by the loosing party. In deciding whether a party should be responsible to pay for the other’s court costs, the judge will look at different factors such as: Were the parties reasonable?  Did the spouses make reasonable efforts to settle the case?  Did one of the parties fail to accept a reasonable offer? Did one spouse act in bad faith? Did one spouse pursue unrealistic claims? and the list goes on and on…

 

So no one should ever go to court thinking that they will win it all, or thinking that the other party will have to pay their legal fees.  When making the decision to go to court, you need to start from the premise that any and all legal fees paid to your lawyer will be on you, and that you will be lucky if at the end of the day a judge orders your ex to pay some of them.  This is why it is so important to make sure that you have tried every possible way to settle out of court before you chose this very lengthy and costly avenue.

What? You moved away with the children!

Jill and Jack have been arguing for quite a while now.  For Easter, Jack took the children on holidays to his family in Toronto.  On Easter Monday, Jack sent Jill a text message saying the children would not be returning home that night as he had decided to permanently move to Toronto with the children in order to be closer to his immediate family.  Jill is in a state of shock and her first instinct is to call the police and charge him with kidnapping! All Jill wants is to get the children safely home as quickly as possible. Does Jack have the right to move out of town without telling her?

 

While Jack may certainly move, he cannot do so with the children and most importantly without speaking with Jill who has legal options available to her.  The very first thing that Jill should do is to IMMEDIATELY speak with a family lawyer as in custody matters of this kind, acting with all speed is absolutely crucial.  Every hour and every day that Jill delays in taking court action works against her chances of getting back the children quickly.

 

Under no circumstances should Jill consent to Jack’s removal of the children or sign any agreement that deals with custody and access matters until she and her lawyer have reviewed it.  Similarly, nor should Jill say or write anything to Jack that could be interpreted as agreeing with his removal of the children from the family home.  Jill will also be required to start an urgent court proceeding against Jack for the children's return. Custody proceedings are very fact-specific and to save time and legal fees, Jill will need to provide her lawyer with the following information:

 

1. the family’s background (names of the parties and their children, dates of birth, length of relationship, employment, income, etc.);

 

2. Short timeline of the main events leading up to Jack's removal of the children;

 

3. List of family members, daycare providers and friends who can help her care for the children if the court orders their return to the family home;

 

4. why it would be in the children’s best interest to be in your care until the matter is sorted out, and;

 

5. what access, if any, do you propose the other parent to have.

 

The reason for the parent's moving is irrelevant to the court unless it helps to determine the parent's ability to provide for the children's needs. When making parenting decisions, the courts sole concern is the child’s best interest – what are the child's needs and the ability of each parent to satisfy those needs. Of course, the relationship that the child has with each parent will also be examined. Courts do not like to introduce instability into the children’s lives, nor do they want children to remain in environments that leave them vulnerable to emotional and physical harm. Thus, the trend in the Ontario courts has been to disallow the removal of the children from their family home if there is no compelling reason to show that such a move is in their best interests. In Jack’s case, for instance, the court could order for example that he return the children to Jill or have the police apprehend him and return the children to Jill.

 

Moving away with the children without proper discussion and agreement between both parents will not only disrupt the children’s lives, it will create lots of fear and unnecessary anxiety. Speaking to a family law professional and with the other parent before making such a move is a must!

Watch What You Write on Your Wall…

Jill is very upset with Jack and vented her frustrations on Facebook.  Her friends “liked” her comments.  Unfortunately, Jill forgot that one of her friends is also friends with Jack’s teenage niece who has her phone glued to her hip and who instantaneously saw the comment Jill made about her uncle.  Of course, she immediately shared it with her mother, Jack’s sister.  Even if Jill wanted to erase her comment, it is too late and Jack has already seen it. 

Social networking services such as Facebook, Linkedin or Twitter have not only become a “marriage killer” – you would be surprise to learn how many people discovered that their spouse was cheating through these means -  they also have the potential of becoming a “best case” killer in court or in a divorce settlement process.  When a separation gets ugly, spouses may be tempted to use social media as a channel to vent their anger, bash their ex-spouse’s actions and get support from common friends and family members in what they believe to be their “just cause”.   

 
If you are using social media to show off your new “hot” girlfriend to your buddies, or to gain support from your friends, rest assured that this evidence is going to find its way into the court room – or in your ex-spouse’s lawyer’s hands–quicker than you can think.  Yes, this type of evidence can be used against you in court and in other settlement processes.  Imagine, with your own actions and your own words you may give your ex-spouse the evidence he or she needs to discredit you and prove his or her point against you.  Your children could find your disparaging comments in future years.    It is hard for parents to argue that they have their children’s best interest at heart – and thus should be granted sole custody of them – when evidence proves that they have spent the past two months destroying the other parents’ reputation in social media.   Even worst, your children can be scared emotionally in the process, especially if your comments are available for the whole world to read. 

Finally, it is not enough to try to limit the damage by shutting down your existing account, locking down your privacy settings or “untagging” your images and pictures.  The damage may be impossible to control down the road as social media tends to leave permanent traces.  Remember that social networking services were created to help people stay in touch. Therefore, if one day you have the urge or the need to vent about your ex or the events related to your separation, just pick up the phone and talk to someone before writing it - permanently - on  your wall.