Divorce Law – Protect or Infect?

 

 

By Lisa Thomson

As a woman having gone through a most antagonistic divorce, and having experienced many legal challenges, I am compelled to share a brief summary of my story with other people; especially those who are currently economically dependent on their spouses.  My story teaches us all a lesson about divorce law and that is; money is power. The economically advantaged party has the unchecked ability to take his ex-spouse through the Appeals court.  We must change this!  Divorce cases should not automatically move through the court system to Appeals.  Divorce is not criminal law.  There are no prison terms to consider nor are there murderers to prove guilty.  We must do what we can to protect families from the poverty that is perpetuated by unnecessary Appeals. Stop the legal system from being a vehicle for divorce revenge because our children ultimately pay the price!  My story proves the Appeals system is flawed.  Even if you never go through a divorce read this for your sister, mother, aunt, niece, daughter or friend who might have to one day.

It all begins with the disagreement between separated parties.  Who gets what and why, how much support has to be paid and who has to pay it?  These decisions become impossible to resolve.  In come the divorce lawyers.  The parties turn into a plaintiff and a defendant with a case number, beginning the dehumanizing process of “divorce”.

First step, lawyers will have us try to come to a settlement that is fair for both parties.  A terrific approach if the opposing parties are reasonable and have the same goals; to “settle” with “fairness”.  Unfortunately this is not often the case as one of the parties is bitter and angry.  This was not their idea and therefore why should they have to give up anything?  “I didn’t ask for this”, “I was happy with us” you can hear them say.   And so begins the bitter divorce.  “You will learn a lesson”, “you will pay the price” are common statements lurking behind the scenes.

As the divorce progresses with all of its ugliness, it evolves through different stages to finally get to where the parties either settle all issues out of court if they are lucky or else they find themselves in court with a judge presiding.  In other words they fail to come to an agreement even with lawyers as their advocates.  The “trial” is set and parties end up in court.

How did we get here?  How did two parties over 3 years of negotiating with lawyers get to this ugly courtroom?  Just imagine this scenario; the bitter party withholds things to the other party.  He withholds child support payments.  He withholds the children.  They are suddenly unavailable, without explanation.  You see because she is going to pay the price one way or another, she was warned.  He quits his $200,000/yr job and informs his ex he can’t pay her support much longer.  He tells her she’s not his wife anymore and so he doesn’t have to pay for her.  He soon stops paying any support. She finds she is only qualified for a $10/hour job.  He threatens to take custody of the children telling her “you’ll lose the kids!”.  He continues to travel, play golf and spend his savings while unemployed.  She stands by watching helplessly as he spends every last penny maintaining his high lifestyle.  I can imagine this scenario clearly because I lived it and I’m sure there are thousands of women living the same situation.  These are the very situations the law is supposed to protect us from.  Divorce law is designed to ensure a fair division of assets and that the dependent spouse and children are cared for comfortably.  In other words, the laws are there to protect individuals from the very situation I described.

Needless to say, we ended up in the courtroom to settle strictly maintenance issues (child and spousal support).  In settling this issue, a large part of the case was to decide whether the father had a deliberately low income for the purpose of evading child support.  This is an important issue and pervading problem for women or the economically dependent spouse in the process of divorce.  It is common for a parent to find ways to evade or minimize child support obligations and not having an income is the most obvious one.  If they don’t have an income how can they pay you?  It is the oldest trick in the book and one of the reasons there are laws to protect vulnerable spouses.  For example, women who have left their marriages but are unprepared for the work place, a place they have been away from for years in order to raise the children and take care of the home.  These women like myself, are at an economic disadvantage.  The laws are in place to protect them.  Or are they?

The purpose of the trial is to have an impartial Judge hear all evidence and by applying divorce law, decide on a fair outcome for both parties.  In family law specifically, Judges have a wide parameter of discretion.  In other words, they consider all of the facts of the case including asset values for both parties, history of marriage, history of behavior at separation, work history for both parties, and any expert witnesses like accountants, or employers testifying; then forms a judgment.  In my case, the judge was very thorough in his written reasons for his decision regarding setting my ex-husband’s income.  The judge seemed to “get it”.  He determined from the trial evidence that the Husband had hastily left his job without mitigating for a new one.  He had displayed deliberate intentions of evading support, while continuing to spend money as though he still earned $200,000.  Finally, it seemed someone understood what I had been going through for the past 3 years.  Finally, the law applied a guideline for my ex-husband to follow.  Finally, he was exposed for what he was truly doing, making me pay the price and learn lessons for leaving him.

My vindication was short lived though as my ex-husband could not and would not accept this. Consequently, after spending over $100,000 on the procedures of a trial, and waiting 3 months for the judgment, it still wasn’t over.  My ex-husband went immediately back to court at a cost of at least $10,000 to each of us and commenced a “Slip Motion”. A Slip Motion is basically a method to challenge the Judge, specifically to question if he made a mistake in his calculations in determining what the spousal and child support should be set at.  The motion was denied.

Following his failure to have the judgment changed through this simple motion, he proceeded to file an Appeal.  Anyone can Appeal a court decision be it a criminal, civil or divorce matter.  Unfortunately, for those who are the responding parties it can be extremely costly emotionally, and financially.  And here is the catch; you have no choice.  If your ex-husband decides to Appeal your divorce you have no choice but to continue paying debilitating legal fees.  I believe part of his purpose in going to Appeal was to cause me financial grief because all of the money he had spent on legal fees to date well exceeded the amount of money he was required to pay me. And this is why I refer to it as a ‘revenge Appeal’.  But truly who had to pay for all of this?  Well, our children of course, because ultimately they are the ones who lose their inheritance and college funds.

Although I’m not here to critique the procedure of an Appeal, it is worthy of mentioning the flippant manner in which mine seemed to be handled.  It is almost as if the trial evidence didn’t exist, as if the former Judge is presumed to have erred. Appeal judges requesting information about our property settlement that had no bearing on the trial nor even referred to in the appeal arguments, and then using it as key evidence in the Appeal outcome seemed suspiciously biased for the Appellant. So in and of itself, Appeals are a gamble.  Not the strongest case in the world is guaranteed to stand up to it and recourse for an Appeal gone awry is limited.  If you feel your Appeal was unjust, it is not automatic that you can have it re-tried.  You can only apply for “Leave to Appeal” (you have to get permission) at the Supreme Court of Canada.

Finally, the Appeal decision allowed my ex-husband to walk away with a great reduction in his set income and consequently an even greater reduction in spousal and child support payments.  He also walked away with a nod to his decision to quitting his $200,000/year job. The fact that his blatantly irresponsible decision to quit his job was acceptable to this panel of judges, was financially devastating.  The fact that his pattern of behavior in threatening and finally to not pay me to teach me a lesson and make my life difficult was dismissed as a busy lifestyle, was disheartening.  A sad precedent was set by this Appeal.  The law is supposed to protect the dependent spouse, in this case, the law destroyed them. Because lawyers will now use Taylor v. Taylor to repeatedly protect men who walk away from their jobs to evade support to their exes.  The lawyers will hold up Taylor v. Taylor and say “My Lord, it says here he had good reasons to leave his job and whether or not he looked for another one is irrelevant!” or “My Lord, it says here in Taylor vs. Taylor you cannot apply Employment Law when deciding if a spouse is underemployed…”.  You can see how this Appeal decision is destructive to all dependent spouses in setting a poor legal precedent on the issue of maintenance.

Any ounce of legal security a dependent spouse might think they have was destroyed by my case, just as my faith in the system was also destroyed.  In an 80 minute hearing (45 minute oral arguments for each side), a costly three day trial was eradicated.  All key evidence was seemingly dismissed.  And the trial decision was overturned in favor of a sympathetic party.  The sympathetic party was the Husband.  It became a game of she won and now he wins.  How can the exact same case have two extremely different outcomes?  How could so much of what was on trial be interpreted to make only one of the parties sympathetic?  These questions will remain unanswered.

Ultimately, these Appeals are devastating.  Besides not being able to afford more legal fees and handling the case alone in the courtroom, the emotional drain and time spent I can never get back.  I’ve lost financial support I relied on to survive, and restart a career.  I’ve been left barely able to meet my living expenses.  For example, the Appeal left me the “losing” party, with retroactive payments of spousal and child support amounting to close to $30,000 and this is money that has already been spent on children and  living expenses.   Also, I am left to pay the Appellant costs and even double costs because I did not accept their settlement offer prior to the appeal.  Why did I not readily accept the settlement offered to me?  And should I be penalized for that? My answer is this; I just spent $125,000 on a trial and attained what I believed to a be fair and moral judgment but now I am expected to accept something far less on threat of losing in appeals court?  This reeks of legal extortion! These costs could amount to more than $15,000.  But this is just another of the problems with the court of Appeal where you are further punished for not assuming you will lose. Furthermore, if I had a lawyer represent me for the Appeal I would have paid likely an additional $50,000-$70,000 in legal fees to defend the judgment that now has been overturned. And for those that want to say I should have had a Lawyer for my appeal, I couldn’t agree more. I certainly did not want to deal with this Appeal unrepresented but I had take a hard look at my finances.  What had I already spent on the trial?  What will I have to continue to spend for the Appeal without a guarantee of staying the trial decision?  You see win or lose, my decision was made on a cost versus benefit analysis. Should I risk my largest asset to continue this battle?  If I had not had the foresight to make a financial analysis of my situation I would risk being in much deeper debt.  The loss is overwhelming and like adding salt to the wound since I am still paying off trial costs. A trial with no enforceable judgment.  It all feels so pointless and futile. In the snap of a finger, I have suffered loss on multiple levels while my ex spouse continues his $200,000 per year lifestyle.  He is the sole owner of his company claiming he makes $75,000 per year.  But I wonder what his true income really is but it remains an unsolved mystery.  One thing is for sure though, the discrepancies in his and my lifestyles are remarkable and the Appeal helped to widen this gap.

In the end, all of this was possible because my ex-husband had the economic advantage.  He simply had the means to ‘Appeal’ the trial but not necessarily rightful cause.  He had the legal power because money is power in the legal system.  This puts women or the dependent spouse, at a dangerous disadvantage in the legal system.  My ex-husband was rewarded for spending his children’s money on an Appeal.  I was further financially devastated which as I mentioned, can be the whole motive for some of these ex-spouses to Appeal.  They simply want to wipe you out financially.  Remember, “You will pay the price” and keep paying and paying. Divorce law is hurting the vulnerable parties of divorce, stay at home Moms (and Dads), the very ones the law is supposed to protect.

How can we reduce the damage the legal system does to struggling families?  How can we prevent the legal system from being used as a catalyst for revenge?  How can we reduce the financial devastation?  Here is my proposal; at the very least, if someone wants to Appeal they should have to “apply” to have it heard just like they do at the Supreme Court level.  Is this case so unfair that it needs review?  Was the law misapprehended?  Was the evidence significantly misinterpreted?  Was the Judge beyond his bounds by applying the Principle of employment law to a divorce case where the husband quit his job?  These questions were not asked in order to hear Taylor v Taylor they were simply stated by the Appellant and accepted as facts. Unfortunately maybe if these questions were required to prove legal validity before acceptance to Appeal, this case never would have been re-tried.

Because we have to collectively ask ourselves who is at risk from financial ruin due to “free for all” divorce Appeals?  As lawyers, as judges, as citizens, as friends and family of persons going through divorce, we must face the fact that it is our children who ultimately pay the price.  And in the same vain we must look at the financial crisis a divorce appeal can cause an economically dependent spouse.  Where does a woman attain this financial means when she has been going to school to re-educate for example, or when she has stayed home to raise his children?  Her career is nonexistent. We collectively must ensure there is a damn good legal reason for a divorce Appeal.  Prove it!  Because where is the justice in having an ex-husband appeal a divorce ruling at any cost just because he isn’t satisfied?  For example, if the appeal is going to cost both parties more than what is at stake is this really in the children’s best interest? As it stands there are no checks and balances in his quest for revenge.  It is disturbing that there is no test for legal justice or accountability in family law Appeals. All the embittered party needs is money (power) to have the opportunity to overturn a fair divorce judgment. If he successfully overturns it, the economically disadvantaged party owes the advantaged.  The poor owes the rich if you will.

In the end, the court system, panel of judges and divorce law helped my ex make me pay the price and “learn my lesson”. The very law that was set to protect me has left me in debt.  If it can happen to me it can happen to anyone.  If the Judge on my case was deemed legally wrong than trust me, any judge can be legally wrong.  I propose that an application process be put in place for divorce appeals so we can reduce the poverty caused by unnecessary litigation.  It is time for the legal system to consider the individual not just a case number, to help resolve family issues.  Divorce Appeals infect families with poverty.  Until there are restrictions and procedures in place to limit family law Appeals, this will continue.  We need to stop the bleeding by taking away the automatic right to Appeal divorces.

To view Lisa’s case CLICK HERE (.pdf 1.3mb)

Or;  google CanLii and type Taylor vs. Taylor Docket number 4803 135770 for trial decision or

Taylor vs. Taylor Docket number: 0903-0033-AC for appeal decision

 

Copyright 2011 by Lisa Thomson.  All rights reserved.   No part of this article may be used or reproduced in any manner without written permission.  For information or permission to use the article contact the author

twitter pic Edited for About Me

Note to reader: I am not a lawyer and I am not giving “Legal advice”. I am providing legal information based on my legal experiences.

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