NOTHING TO PUT UNDER THE TREE
This is about money and how money is used as a weapon of control, abuse and spite. It is also about one of the many flaws in this province’s (Ontario) family law system.
When people separate and begin the divorce process there is almost always a power imbalance. This usually involves money. Withholding money for the basic necessities is a form of abuse and control. At this time of year, with Christmas just around the corner, the lack of money can have a devastating impact on people who are suddenly left with no means to purchase presents for their children and family members, and worse, no means to purchase food for that Christmas dinner.
Many of my clients have been stay at home mothers. Women who have diligently raised their children, looked after the household, cooked the meals and made the family home a wonderful place for their husbands to come home to at the end of the day. These women have become wholly financially dependant on their husbands while at the same time the husbands have had the ability to go out into the workplace and build their careers and financial security.
Why is it that when the marriage breaks down these same men more often than not want to cut off their wives, and by association, their children, from access to money? Why is it that when a man leaves the marriage because he has begun a new relationship his financial largesse gets shifted from his wife and children to the new girlfriend? Frankly, I don’t have the answer.
What I can answer though is what to do about that and how to go about it. I can also tell you about the roadblocks that have been created by our family law rules and family law courts that make it so difficult to right this obvious wrong.
In someone’s misdirected wisdom a system has been created to actually prevent you from getting in front of a judge for weeks, and sometimes months. That is because our family law rules state emphatically that you cannot bring your problem to court (unless it is an emergency, which I will deal with soon) until there has been a case conference. Most courts will not give you a case conference date for at least six weeks and sometimes eight to twelve weeks after the court proceeding has been started. Remember now that the separation has likely occurred some time before the court proceeding has been started which means that if you have been cut off financially, you have already been suffering for some time before you even issue the divorce Application.
A case conference is an initial meeting with a judge. At that case conference the judge has no authority to order anything except basic procedural things such as disclosure of documents or the questioning of the participants. The judge cannot and will not order spousal support or child support. They will not even order your husband to give you money so that you can hire a lawyer. So there you are. The husband who thinks he is the king of the castle, who thinks he is still in charge of you, who thinks you are still firmly under his control, can write a cheque from his bank account to hire a lawyer while you have to wait between six weeks and three months to get before a motions judge to get even enough money to feed yourself and your children. There is obviously something seriously wrong with that.
What is an emergency motion? According to the case law there is very little that constitutes an emergency in these situations. Believe it or not, the lack of support payments on its own does not constitute an emergency. There are judges who will throw you out of their court if you dare to bring a motion before a case conference for something so unnecessary as needing money to eat. In fact one judge in a family court north of Toronto regularly awards the husband substantial amounts for costs to punish the wife for having the nerve to violate this rule. There are other judges however who have more common sense and actually understand. And those judges will and do regularly permit motions before case conferences when there is a serious lack of cooperation in support situations. The problem is the uncertainty. You do not know which judge you are going to get until you arrive at the courthouse and you do not know how that judge is going to react. Keep in mind that this is not about how that judge will react to your request for support. This is about whether the judge will even hear your request for support because you have had the nerve to try and bring a motion before a case conference.
What should you do? Try and get yourself a lawyer who will fight for you. A lawyer who cares more about your well being than the attitude of the judge. A lawyer who is concerned that a former life partner will act in such a shameful manner. (A lawyer just like the lawyers who work at Bookman Law)
STEVEN M BOOKMAN, LL.B, Ph.D. is the managing partner at Bookman Law Professional Corporation, a boutique family and estate law firm located at 1881 Yonge Street, Toronto. Steven Bookman can be reached at 416-488-2243 or [email protected]