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August 31st 2020 Radio Episode Transcript

Marie: Let’s welcome Maitre Sheri Spunt! Good day ma’am!

Sheri: good morning, how are you?

Marie: uch, just a nervous wreck and I don’t even have kids going to school

Sheri: (laughs) well there’s enough nerves to go around for everyone i guess then

Marie: oh man, big time big time. Look I saw a story and you’ll probably read it today also in our media today in Montreal about the dad whose daughters are 9 and 11, went back to school and he is going to isolate from his family downstairs in the basement because he has underlying health conditions

Sheri: ya, not easy

Marie: not at all

Sheri: its interesting when you go into the thoughts of that decision making process right that those parents really were trying to determine…it is commendable you know making those type of sacrifices because I’m assuming those parents really decided that they felt that the best thing for their children was to be at school with their peers and students and teachers and have the benefits that come from being at school despite then the sacrifice that the dad and the family decided to make to isolate. So I think that that’s really interesting and that speaks to the fact that every family has to do what’s good for them and what feels right. You know a lot of people and my clients have been asking me you know what are you doing, what do you think and I’m happy to share it but everything is different for every family and there are so many factors that everybody has to consider, whether it be their extended family, their surrounding immediate family and what makes sense for everybody

Marie: by the way, I saw a special yesterday that homeschooling, the numbers have gone up more than 100%

Sheri: I’m sure, I have clients who are doing it, so you have to go through the same application process that you would have before as a family who decided to home school and just so its clear for your listeners, when we’re talking about homeschooling, we’re not talking about remote learning attached with the school because the schools are only offering that to families who have been approved that there’s underlying medical conditions that don’t permit them to be going to school and in those scenarios the school will be coaching those families through the learning and so on. The homeschooling is really families pre, and you know I had families before Covid who had decided from kindergarten that they were going to homeschool their children so that’s when you have to apply to the government, you get approval, you have to submit education plans, grading scales and they really stay on track of where you are and make sure that there’s education, there’s a physical education component, and that the kids are really getting a well rounded plan. So now, a lot of parents who were in traditional schools before, because of Covid and because they did not meet the requirements to be able to have the remote learning, are applying for the homeschooling now. So I believe it that there’s a huge huge increase in that

Marie: oh man. And then there’s the situation with the school buses, I don’t know if you’re aware of that. Some children find themselves this year, this is from La Presse, without school transportation because in some places, they decided to offer it for only one address, leaving children whose parents are separated without service half the time. Parents must therefore choose which of the two will be entitled to the service. And the other? He must work that out I guess

Sheri: I think what’s happening I mean there’s so many of these things that are happening right now and you would have thought that we would have had enough time from March until now for everyone to put measures in place and to ensure that there’s not families who are left in that situation so on the one end you’re telling the kids that they cant learn from home with your assistance but now they cant get to school. I mean its really really unreasonable and I really hope that they’re going to work out those kinks really quickly. And another thing, I know we talked about it last week but I cannot say enough how it really takes the parents to really speak up now and those parents who are in that situation need to communicate with the right people. Obviously you start with the school and if it doesn’t work with the school, then you go to the school board and you work your way up. It’s really not acceptable to not be offering that type of transportation because then the children are the ones who are suffering in consequence and not able to exercise their right to go to school. It’s going to take time. I think as parents, I know we have to be patient to work out all the difficulties that are going to come up very quickly and I suspect there’s going to be a lot this coming week, but we also have to be vocal because the changes aren’t going to happen unless we voice them so its really important to communicate and to communicate with the right people and if it doesn’t work there you go to the next level, next level because things are really important things that were talking about and we shouldn’t settle, we should make sure that our kids are safe and that our kids are where they need to be and they have the services offered that they have a right to

Marie: actually here it says “when the mother learned a few weeks ago that the Centre of Services (Sevices Scolaires) for her riding offers the school transport service to the main address at which a student is registered”. Then it says “however, like many others in Quebec, his children have two main addresses”. I wasn’t aware that you could actually have two main addresses.

Sheri: well ya I guess with separated families, separated scenarios I guess they both put them as the principal address or in a shared custody for example, 50-50 custody.

Marie: so they have both addresses and both numbers, how to reach the two parents who no longer live together

Sheri: exactly

Marie: ok keep it simple everybody, don’t divorce, oh I’m sorry Maitre, you’re a family lawyer

Sheri: listen, everybody finds a way that works. You know, today at drop off, my son he started grade 1 today, and there were families, and divorced parents and they came together to school and they brought their child to school, and other families have been divorced for a long time and you find a way to make it work, and the parents’ job is to make the kids not feel it and by having both parents there for the big first day, that’s a really big deal. If there’s a will there’s a way and it takes 2 to tango and it takes 2 parents to really put their differences aside to be able to show their children that they could still parent the same way that they did before. So there’s always a solution, it just takes 2 level headed people to realize that that’s what’s in the best interest of their child.

Marie: alright lets say the parents have joint custody but one of the parents has a serious condition, its breaking their heart but they told the ex spouse look I cant, I cant risk it I cant see the kids, ill talk to them ill video chat but I cant take the kids, I cant do this, you know in case something happens with this Covid. Do they have to call a lawyer to change the conditions because that father doesn’t want to be told you know a year down the line, well when it was Covid, you didn’t want to have anything to do with our kids. Should he be putting it on record? Should he be calling you?

Sheri: putting what on record?

Marie: that he can’t keep getting the kids, they had a joint custody, but he’s too scared because he has a condition

Sheri: that’s a decision that the parents have to make together. In a situation like that, where the father is compromised, and he cant receive the children because they’ve been in school, that’s a serious conversation that the two parents have to have and we talk about the fact that maybe this year its not the best thing for the kids to go to school and again that’s the weight that every parent has to make, the relationship between a father and the children is incredibly important so how do you put that relationship on hold for a year or for who knows how long. In a situation like that, if they don’t agree, they would have to go to court and a judge would have to decide what’s in the best interest, to go to school and not see their dad or to see their dad and be homeschooled

Marie: Alright lets say the mother is not well. She has her own health problems, they have joint custody she has no problem for the kids going back to school but she’s petrified that they go home to her. So she accepts, the husband offered to take the kids during Covid. And the kids are fine with that too and hell register them full time at the school near his house. Does she need to put it on record with a lawyer because they’re changing conditions that were decided by a court.

Sheri: in theory, every change should be documented and there should be a new consent that’s reached. A consent is an agreement that two parties reach in writing, its signed by both parties and then its homologated by the court, that just means then that a judge reads over the document and then says I order the parties to respect the terms and conditions that they agreed to in this document that they both signed and then it gets filed as a judgment. And the reason for that is its then easier if there becomes a problem. So if a problem comes up, for example the dad or mom says that the situation is no longer working, and that the parent made other arrangements or is not able to receive the children or whatever it may be or the one who doesn’t have them is no longer okay with it and now wants a change all of a sudden, its hard to execute on it right away, no one can then say to the authorities I’m supposed to have custody versus you, no you’re not look at our last judgment and then well refer back to the last written judgment that doesn’t reflect what the reality is then. However, if the parents do not go ahead and sign an agreement and they’re just doing it and its factually and we know now that the kids have been going to dad for 6 weeks consecutive and now all of a sudden mom is no longer okay with it then she would have to take a motion to court or he would have to take a motion to court to then maintain the status quo with the dad, he would say this was our arrangement this is what we had in place but then you would have to kind of battle it out to say well it was always supposed to be temporary and then its his word versus her word and then the judge has to determine you know what was the intention of the parents and more importantly, what’s in the children’s best interest at this time. Will it be to stay with dad or to go back to mom and to a previous arrangement so its always just cleaner when its in writing and its homologated and its just simpler for everybody because everyone knows what they’re following and it doesn’t seem like its temporary or that it can change again so easily. If there’s something not in writing it can seem like its so much easier to shift or to change and that could create problems as well. So we always recommend in writing.

Marie: okay I don’t know if you read the story about Heidi Klum and Seal and their 3 children they had together

Sheri: she wants to move right?

Marie: actually she wanted to take the children with her because they’re filming, it was just for a few months, they’re filming the next top supermodel, whatever that show is, the German version in Germany and the judge was afraid of Covid but if I were a judge, there’s more Covid in the US where its totally out of control than in Germany, but anyways that was his reasoning, eh was afraid to let the kids travel because he didn’t want the kids to get Covid. Private jet, hello! Ok, what other thing is worrying you. So he was really not giving her the ok because she needed the ok for the passport. Do you know what the judge did? Before he rendered his decision, he wanted to speak with the oldest child.

Sheri: do you know how old the oldest child is?

Marie: she was I think 14

Sheri: ok and?

Marie: he decided to let them go and he convinced the dad that its temporary everything’s fine she’s taking all the precautions but what was most important he said is that your children really want to go with their mom and film this and be with her while she’s filming this

Sheri: interesting, so in Quebec basically our legislation is that after the age of 12, we start to take into account the children’s wish. Now that’s not 100%. That’s one of many factors that’s to be determined. If the child’s wish is not in line with the child’s best interest, then the child’s best interest will trump that. Now in Quebec still more and more its becoming younger and younger. We even have case law that takes into account a child’s wish as young as 10 years old and again, its one of many factors but still a judge will take a child into chambers so into their office and will ask them what they want to do and what are they thinking. So that’s actually the court of appeal who had put that in place in terms of listening to the wishes of the child at that young age if they feel that the maturity level of the child is sufficient. So there could be a child who is 12 years old who doesn’t have sufficient maturity to determine what’s in their best interest. So really it’s a tool that’s used. So lets say the judge was on the fence and it was the Covid point that was tipping the scale towards lets say staying in the US with dad and then the 14 year old child spoke very passionately about the fact that he or she wanted to go with mom, and also spoke that the siblings are all close and that this was a family plan or whatever that child told the judge, that would have been enough to tip the scale to decide that that was in the child’s best interest and yes maybe there’s the Covid risk but there’s these other things that are more important at that time for those children.

Marie: actually in the story it had a few details. The judge asked what about your brother and sister and the child he was talking with said all three of us want to go with mom, this is exciting for us and we want to go with mom to film this show. So he kind of gave in, you know he didn’t argue anymore

Sheri: ya at a certain point right and I mean I guess the fact that its temporary too but lets take this opportunity to talk about that also, if they’re going for quite a few months, the dangerous thing with that is that it does create a precedent, can create a status quo which means that lets say the kids go there and they start school there and they’re doing school for 6 months and they’re happy and they have their school mates and they’ve started to make a life for themselves, its very hard for them to switch schools mid way through or now the 14 year old is going into the next grade so it does create a precedent, it does create a status quo that makes it difficult to change or to challenge after the fact. And then you want to make sure that its not a disguised relocation.

Marie: I was just going to say you never cease to amaze me. Nothing gets by you, girl eh.

Sheri: thank you. But these decisions when they’re being made, everybody has to be very careful. Like I explain to my clients, it might be on a temporary basis, “c’est pas grave”, its not a big deal, it’s a few months and they’re going to have a great experience but its what will that promote later. There was actually another article that youre making me think of that was in the Star I believe that the Canadian courts were stopping “reckless father” from taking the children to the US during Covid and the case was determining whether it was necessary for the children who were age 9, 13 and 18 to go to the states or not for whatever the reasoning was, I think it was just for a temporary visit or whatever, and the courts decided that it wasn’t in their best interest and it wasn’t necessary for these Canadians to go into the US. So you always have to weigh the balance of what is it for, how important is it, what are the risks, and what’s in the best interest of the children and that’s always the underlying factor. And that’s why also if I have clients come in and they say to me what do you think, what are the chances and what other cases have you had, every case is handled on a case by case basis, everyone, because you really have to think about those particular children not the other 9 year old that the judge saw last week. That’s what’s important.

Marie: were going to go to a quick break but when we come back, I have a listener here who sent a question that has to do with, he feels the wife is sexualizing the children, the two daughters. I don’t know I mean all of a sudden the judge becomes a fashion expert now

Sheri: all I have to say is thank goodness I have three boys

Marie: hey listen you might have a husband who gets upset if you put a flowered shirt on one of them

Sheri: oh no no my children know that colors belong to everyone

Marie: excellent. Alright Maître Spunt well be right back

Marie: Maitre Spunt I’m so proud of you, I feel like a mother here, nothing scares you girl

Sheri: well we have to be ready for everything. In family law we see it all.

Marie: okay question, sexualizing a child. Look, we all have opinions, we all have our own styles, do some moms go overboard, maybe, who am I to say, is there a standard, is there something the courts use, how do you move ahead if a dad is worried that the mother has gone a little overboard. I mean I can defend an 8-year-old wearing eye shadow because they were playing dress up, I cant defend an 8 year old wearing eye shadow every time she goes out though.

Sheri: right, so that’s a question that falls under parental authority. Both parents have parental authority over children, it’s a broad part of parental authority in terms of it affects the child’s every day, if one parent is uncomfortable with it, but if this would go to court for example, lets say hyper sexualized very short skirts or now I see a lot of young children, 11, 12, 13 wearing crop tops and it looks like a sports bra but now its acceptable and considered that the child is wearing a top and all of these things, I would first tell the parent first, lets try and talk about it, talk about it amongst yourselves. So first, the father or the mother has to address the issue to the other parent. They have to say why they have an issue with it and then see if its something they can solve from there. If its not possible to go from there lets say they already have lawyers from their divorce then I would suggest that the lawyers get involved to communicate the concerns. So it could be during school hours or play dates or whatever, restrictions that the parents want to put in place. Now if that doesn’t work, then you could go to court with something like that but you really have to prove what kind of impact is this having on the child. So lets say maybe this child is getting involved with the wrong friends or all her friends are just like that or they feel that she’s getting sexually involved with other children at school or this is part of a whole bigger issue then that’s something that can be addressed at court. But you know it would also be very hard for a judge to order that a daughter has to be wearing pants or this or that at every juncture and that’s why I would say that the thing that would make the most sense obviously is for the parents to come to an agreement and for them to sit down, table talk with the child and explain the situation. Obviously sometimes its very hard with a defiant teenager who wants to wear what they want and who might crumple up clothing and stick it in their backpack and leave the door wearing one thing and change later on into the other. So it’s a very challenging thing it’s a really interesting example because how do you execute that, right. But I would think that the broader order from a judge would be to order the parties to make their best effort to coparent and to be a united front for the child and to have the same rules in both homes because then the child might also start to reject the other parent and that’s problematic too. So lets say for example, Katie wants to wear a short skirt and her little crop top and dad doesn’t allow her to wear it at his house and that’s not fair you’re not allowing me to live my life and everybody’s doing it, Katie might start saying I don’t want to go to dads house anymore, I don’t want to be there, I don’t like his rules. And that’s where the concept of parental alienation gets tagged on many families, the dad says it’s the mothers fault, it’s the mother who is promoting those types of rules, or doesn’t have those rules at her house which then makes it that dad is bad cop and the kid doesn’t want to go there. It’s very delicate

Marie: what about, examples, I’m not for giving children cell phones. Lets say one of the parents has my beliefs, and also I don’t think its safe, radiation downloading into your brain while the kids spend hours on their cell phones has now been proven, so I don’t want her to have a cell phone for her 10th birthday. Dad buys her the super apple cell phone for her 10th birthday, what do I do.

Sheri: again, it creates this conflict between the parents, the child and the family and spoiling the child. Children now today are having cell phones younger and younger which I am not very for it, I am against it, my children don’t own an ipad, you know if they want to play with it at their grandparents house on the weekend and that’s under their rules that’s one thing but the devices have really gotten out of control. I’ve seen 10 year olds with cell phones and that’s a challenging thing too because again the parents do have to be united because you cant have one rule in one house and one rule in the other because that is what is going to deter the child from wanting to be at the other parents house. So again there’s no judge that’s going to specifically say this child is forbidden from having a cellphone but you would really hope that the parents would work together. These are actually things that we often negotiate between lawyers, these type of things because the judges are like we cant deal with that here, how do you want us to enforce that, the police are going to show up at the house and enforce the judgement because the child now has a cell phone? It doesn’t work like that, right. So its more like we have to kind of work together, the parents if they cant work together then we try and get the lawyers to reason with our respective clients and try and come to a consensus. The whole thing is the wellbeing of the child but then also there’s two parents, so there’s two parents who decide how you’re upbringing the child, not just one.

Marie: alright, next question. Custody is split. The dad brings the child to the mom, or vice versa and asks them to sign a document. It says should our child develop Covid while they are with you, its your fault you’re responsible. So the document says I want you to sign that you’re going to do everything in your power to make sure the child doesn’t get Covid. Should you sign it?

Sheri: okay first of all, you’re telling the child to bring this document with them?

Marie: nono, the other parent when he brings the child back

Sheri: I mean, again, to what end? They’re going to hold them legally responsible? Like I’m out for custody because of that? If the child were to be infected and that household is infected, it wouldn’t be recommended for the child to then revert back to whoever is living in that other house. But I mean that sounds to me to be a little bit much to make them sign that but I mean it depends what else it says but I mean if the child is infected with one parent, the best thing would be for them to stay with that one parent until everybody’s better, until the 14 days have lapsed, until they both test that they’re Covid free. But I mean the responsibility, who’s going to uphold the parent to that? They’re going to say I’m not going to pick up the child if they’re sick?

Marie: you know there’s certain areas today where if you’re going to go in for a course or whatever, they make you sign a document that says you cannot hold them legally responsible should you get Covid while you’re there for whatever reason or if you traced it back to their studio or whatever. Can a parent ask another parent to sign that, that should the child get Covid while they were with me you cant use it against me?

Sheri: use it against you to what end?

Marie: to get full custody of the kids

Sheri: no, like m saying if the kid is sick, you shouldn’t be going back and forth between the parents but I think the courts are going to be very delicate in handling these types of issues. But like I said the example from BC where the judge was like there’s no reason to bring the kids into the US right now, they’re going to have to decide, on a case by case basis, what makes sense, but if the father is sick and the kids are sick, they shouldn’t be then ping ponging back and forth between houses.

Marie: and when you referred to parental authority, should the child get Covid, how to treat him, who has final say the mom or the dad?

Sheri: treat in what respect?

Marie: treat him for Covid, should he get on a ventilator, maybe the other parent says no, putting him on a ventilator is worse

Sheri: well listen, we deal sometimes with Jehovah’s witness cases for a blood transfusion or this intervention or that intervention, but I would say in a case such as that where were talking about the child really needs a ventilator, I cant see one parent being able to prevent something like that and if that was the case we would obviously go into court with a very urgent motion and a doctor at that point would definitely testify in terms of the health and safety of that child

Marie: ok so the court would look at what the doctor recommends at that point if the parents are fighting

Sheri: ya

Marie: oh man, thank god you’re there and so are the judges

Sheri: ya well its for these urgencies, that’s what our court system is there for, I explain to my clients when we do go in for emergencies, I say you have to picture the court room like an emergency room, it will hear things if they’re urgent, if the child is in danger, if there’s something going on that really needs to be treated on an urgent basis, we can get into court the same day or if not, the next day or the day after so they’re there to really hear those urgent things. Things that are less urgent, we can file them in court and they can be heard within ten days but when there’s something urgent, there’s always a judge who’s available there and ready to hear it.

Marie: when you have an autistic child or a handicapped child, I have seen that unfortunately too often the dad is the one who breaks up the family sometimes not because he’s a bad guy or that he has another girlfriend, he just cant deal with it, the fact that his son was born handicapped or with t a problem. Mom will stay and bring up the child of course and take care of them. Does the court work more favourably at that point with the mom to make sure if the dad is financially very well off at least to make sure he supplies for the child’s care?

Sheri: well that’s in any case. When were talking about a differently abled child or not so in any case in Quebec, based on the custody arrangements that are in place, we have “les barrèmes” so we have provincial tables that determine the exact amount of child support that should be given on each file based on both parents income, how many days a year the child is with each parent, and that generates a number and base don how many children in that household as well, and that generates a number on how much is a monthly amount that will be paid to the parent who has the majority custody or the lower income in that case and then from there in addition to that there’s something called special expenses, and special expenses are anything outside of child support. Child support is to cover basic expenses, for example shelter, food clothing and other basic needs. Special expenses are for example, if the child is differently abled and needs specific things like equipment to aid for walking, or on an academic level tutoring, whatever they may be, those expenses are to be paid pro rata to both parents income. So if dad makes 70% of the income of the two of them, dad pays 70% and mom pays 30% for example.

Marie: and if its reversed, does mom pay 70% and dad pays 30%?

Sheri: yes if mom makes a lot more money, it is really paid as a ratio of the income. So that has nothing to do with custodial time, with how many days one parent is with the child, its really strictly based on the income that determines the percentage of paying for the special expenses. That could be tutoring, dance class, ballet, soccer, piano or a shadow or whatever it might be that the children need

Marie: ok, gentleman marries a lady, lady already has a small child, they live together 10 years, they had another child together, so he leaves, found another girlfriend, doesn’t want to stay with the family, doesn’t care about the child they had together, she goes to court of course, he’s financially well off, he accepts to give her money for the child they had together but not the other one.

Sheri: was he acting as a parent to the other child?

Marie: ya, for 10 years

Sheri: ok so we have the concept in Quebec that’s called in loco parentis. So its Latin for acting in lieu of a parent. So basically, in that particular situation, because they were acting as a parent to that child, its treated as if they are a parent to that child. The one thing that has to be determined though is is there a biological father somewhere, yes or no, is that biological parent supporting that child at all. If they’re not, then this other parent really was acting that way financially, emotionally and on every level, then they wouldn’t be treated the same way as a biological parent so that would mean you would go through the same provincial tables to determine what is the child support for 2 children.

Marie: alright so the court does acknowledge that for 10 years you were

Sheri: it could even be for 1 year, it could even be a 1 year situation where that happens

Marie: alright, any couple listening right now where he or she has not announced to the other one that their mind is made up, they are going to file for a divorce, how quickly can it go if they agree ad what’s the procedure if they don’t?

Sheri: so step 1 for every couple is to have a consultation with a lawyer. We welcome clients to our office, were reopened now physically, so we welcome clients they come in for a one hour consultation, and during that consultation we basically talk about the history of the file, so the context in which they met, in which they married, if there’s children, we talk about the financial aspect, we talk about the custody, we talk about the matrimonial regime, family patrimony all within one house. So basically we accumulate as much information as we can and then we provide a strategy and recommendation for moving forward. If the client then decides to move forward after our consultation, the one hour paid consultation, then we decide whether they want to retain our services, or another attorney’s services, and sign a mandate with us to retain our services to represent them in their divorce. Now, even if its an amicable divorce, a lot of people don’t understand that someone still needs to ask for the divorce so that’s the tricky thing right because you’re like I thought we were agreeing why do I need to file papers. Either way, papers need to be filed in the court record, which is when you issue your divorce. So someone says, we lay out all the facts in the document, and someone is asking that a divorce be rendered, the other person gets a copy of it and in very amicable situations where the parties are really okay and on good talking terms, to alleviate the stress and drama lets say of a bailiff coming to the door, I have given a copy to my client to bring to the other spouse to sign the back of it. So in that scenario, they bring it back to me and we do it that way to alleviate that extra party. Then, we always recommend that both parties have their own lawyer so that everybody understands what their rights and obligations are. And then we can negotiate back and forth the terms and conditions of the divorce. And the best case scenario, we agree early on, one of the lawyers drafts the consent, and then it goes back and forth a few times to iron out the details then both lawyers sign, both clients sign, and then that gets filed in the court record, homologated which is what we talked about earlier on the show which is when a judge reads it over and says I order both parties to respect the terms of this consent that they both signed, and then the divorce happens only 30 days later to make sure that nobody appeals in. in another scenario, clients come into my office that day, they come in together, and they already have written up all their terms and conditions of exactly how they want to do it, then we can actually do something that’s called a joint divorce so they apply as co-applicants and so basically its saying we want a divorce with these terms and then we draw up the consent for them, they both sign it, we sign it and we homologate that in court. It doesn’t always work the joint application because sometimes people think that they do agree on everything but then they actually don’t. and then it becomes tricky because if I meet both clients together as joint applicants and something goes wrong, I then cant continue with either of them because then I’m considered conflicted out. So I still always think that its better for both parties to have their own lawyer and we can still do it as quickly and as efficiently but then it makes it easier that one person cant come back to court later and say you know what, it was actually my husband who found that lawyer and I think she was biased, and I wasn’t given independent legal advice and I didn’t understand that I was renouncing to X Y or Z. it has to be iron clad. To write that both parties had independent legal advice, it makes it so that no one can come back and say well wait a minute, not sure how I felt about that or not sure that I was represented the way that I wanted to be so it is quite important to make sure that everybody understands and is on the same page.

Marie: ladies and gentleman, its Sheri M Spunt, you can Google it should you need help, highly recommend it.