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May 11th 2020 Radio
Episode Transcript

Marie: today we kick off our new series. I am so excited. You know the topic is not a yoohoo party time topic, its family law, emotions, pain, sadness but remember there’s also calm, there’s also working things out, balancing everything, clearing up the mess, knowing where you stand, having a plan to get through it and to survive it. We can do this no matter what it is, there are experts and professionals that will help us. Today we will share the knowledge with Maitre Sheri Spunt. I’m so excited about this series, I have so many topics and questions already.

Another Covid week is starting. We can do this. Just remember, follow directives. We have schools that starting today in the outer regions, we know that the greater Montreal area unfortunately more and more and more cases every day. Look, I’m starting to think we haven’t even peaked yet so just “attache ta tuque” pi on est capable and that’s what’s important for me. We’ve got this, we really do. Remember to be mindful, it’s creating more awareness for us and about us. So ya I know it’s hard to find an upside but you can and you have to so that we can maintain that balance. For those that are having a really really hard time, especially sitting at home with someone you don’t want to be with, what happens? Confusion sets in. then you’re going to get sad, then you’re going to get mad because you don’t know what to do to get out of it. Well, unfortunately, these things happen, whether there’s a pandemic or not. Yes, there are ways to move through that, you need a good lawyer, divorces are still happening, were going to find out how, and why and when, will the courts address the subject, what is going well. Well, Mike FM has just a fabulous lawyer who specializing with her team in this and I don’t want to take another minute of precious time, lets welcome Maitre Sheri Spunt, good morning Maitre.

Sheri: good morning, how are you?

Marie: praise the lord maam, get to do it another week.

Sheri: good

Marie: first question maam, somebody wanted me to ask you because I have so many things here. Can you today file and proceed with a divorce if you really feel you need to?

Sheri: well it depends. Right now, the courts are not working at full capacity. So right now, they’re only hearing really urgent cases. And there’s a sort of triage that’s happening right now in the court system where we’re emailing in proceedings and then there’s judges looking at the proceedings to determine at first glance if they are in fact urgent cases. So that would be something falling under custody, child or spousal support if it really is an urgent situation and needs to be heard now, there are judges available for that and they’re doing videoconferencing and such. But there really is a high burden for urgency. You really have to prove that there’s something in place and that it needs to be heard now. So, a divorce that is something that’s been lingering or that it’s important to them might not necessarily fall under the urgency category unless there’s certain specific items that are urgent.

Marie: if somebody calls you and says, I can’t do this anymore and I don’t want it to look like I deserted my family, I’ll go live in a motel or a hotel, I still want to see my kids but you’re my lawyer and I’m pleading with you, find a way because I can’t stay in there anymore, I don’t know what might happen. What would your advice be?

Sheri: so one of the things that we have done, because of our limited access to court in certain situations, is we have reached out to the other party with our client’s request, try and open a dialogue and communication, if it was impossible for them to be able to have that conversation amongst the two of them, that’s usually when someone were to call us, we would intervene, we would speak to the other party, explain our client’s position, explain how this works and what could be a temporary solution. Sometimes that works, that has worked in some of our cases and in some of those cases we’ve made amicable arrangements without necessarily the court’s involvement. Other cases there’s been urgent situations where there’s been at home, toxic environments, which is really detrimental to the children and the family unit and in those cases we have taken proceedings and in some of the files we were lucky enough that another lawyer appeared in the file and we were able to reach an agreement as to one of the parents was going to leave the home on a temporary basis. Let the dust settle and then go from there. So we have had those situations, I mean we really ask everybody during this time, and its one of the things we talk to our clients a lot, we really have to do everything within reason you know and everyone has to be patient and everyone has to be rational, although it’s hard when the emotions are flying. But if we all stay calm and take a moment, we could find a solution that will work for everybody and obviously its hard for the person who’s on the receiving end but if everybody is honest and true with themselves and you take that moment, you could realize this is not the situation that’s in everyone’s best interest and especially not when there’s kids involved

Marie: alright, I love the word “rational”, because I’ve met people that have different interpretations of that word which to me is very clear but anyways. Reaching out to the other part, okay, here’s a question. I’m locked up now with my husband and I realize by week 3 that this really isn’t happening but by week 5 I’m asking myself do I really want to spend the rest of my life with this man whose very good with the kids and everything but it’s just not working for me and this has been a lesson in do I want to live the rest of my life like that. I mean its staring me in the face now every day. Like I said, a nice guy but it’s not doing it for me, I’m looking for something more. If I want to discuss it with him since he’s a nice guy, it’s one thing. But if it’s not a very nice guy and I was not going to leave because of the kids but now that he’s been in my face every day, I’m realizing that no there is no future, it would be better if we separate. Can I have him served officially? Would you recommend that? Do bailiffs even work during this period?

Sheri: that was a very grey line for a bit, we were in kind of a grey zone, what could be served, what couldn’t be served. So there’s different rules that are in place right now like I said we can send things into the courthouse by email and so on. Certain things were sending by email. But officially serving divorce proceedings or something is something that were not doing right now because we can’t even issue a new divorce proceeding. We can’t even get a new court number at this time to issue a new motion. But that being said, there’s other ways around that. Lawyers are still working. Were all up and running so were communicating with the other party. There was a motion that we have drafted, we sent to the other party, now it’s not issued it doesn’t have a court number for example but at least it gets the dialogue going and it gets the conversation going and sometimes we can accomplish more. And I can tell you that we’ve probably settled more files now in a short period of time because everybody is trying to work together and understands that were having certain restrictions and that there’s bailiff restrictions that we didn’t have four months ago and so on. So were serving by alternative means, and were having to be creative and the court has been creative with different solutions to come up with but that being said, we’ve also done certain things in some of my files where we recommend, even though they’re living in the same house, there’s couples who were on the brink of just separating right before this happened, and then cant rent an apartment now and can’t move out and cant fulfill the plans that the family did have. So in certain cases like that, we recommend to our clients to set up a family schedule at home where there’s one day mom’s on and dad’s off, or if there’s two moms, you know that we rotate the schedule around to make it work and that each parent has their designated times and the kids still have time with each parent, each parent has time to work, and this is even in separated and non-separated families but especially for those families that had those plans already to have a shared custody or to change the modalities of their arrangement at home

Marie: okay and without judging anybody, my question is not to judge anyone it’s just a question somebody wanted me to ask you. A husband found out, now that they’ve been in lockdown with his wife and two little girls, that his wife is having an affair. And she might even be in love with this other man because of stuff he found on the phone, ongoing and yes, he did end up searching some of her stuff and he found more stuff. He’s having a problem looking at her every day. He knew we were having a lawyer on today, you’ll probably get a phone call, I said I’d ask the question. Should he keep all these things as proof? He just wants her out of there. He’s so hurt. I told him to calm down, it’s always like at the beginning, it’ll wear off whatever. But he’s listening now. So, what do you do in a case like that? They’re already heartbroken from Covid and all that, fearing for the children, now heartbroken when he found out his wife is having an affair. Can he get her out of the house and keep the keys?

Sheri: ok so first of all, in Canada, were a no-fault divorce regime. So that being said, let’s say in Quebec, you were to file a divorce motion and clients ask me this all the time, I have pictures I have text messages, I have videos. That’s all fine but it’s not relevant to us because it makes no difference in terms of whose rights and whose, there’s no financial difference, there’s no difference with respect to custody with the kids. That’s just not our regime of divorce. The only impact that adultery has right now is that you can get divorced without having to wait out the 1 year. So in Quebec, let’s say you have a divorce agreement in place, two lawyers drafted it, all four people signed it, the two lawyers signed it, the two parties signed it, they’re ready to get divorced, all documents are in place, you cannot get divorced before the 1 year unless there was adultery, mental or physical cruelty

Marie: and you come up with the pictures and the texts?

Sheri: well so yes you can allege it against the other person. So, I mean even then, the other party usually, especially if there’s an agreement, the other party might just admit to it. Yes, I admit to the adultery. And it’s not more scandalous than that. So, its alleged against the other person and that’s there that ends. In terms of the custody and all of that, and yes, it’s an incredibly difficult, emotional time. You feel betrayed that your relationship wasn’t real, how could someone do this to me, how could someone do this to my family. But at the end of the day, what both parents have to remember is that they’re those children’s parents and that the children can’t be punished and should not be punished because of the breakdown of the relationship even though it happened in that very unfortunate way. It’s important for both people to take time away from each other. Even though that’s difficult, it could be somebody moving into the basement, it could be somebody sleeping on the couch, it could be dividing the days of the week, dividing meal time. There are ways to do that. But what’s the most critical thing right now and that concerns me the most right now is the children, right. Because this is a very stressful period for the kids, its stressful for everybody but the children don’t have the same tools that adults have to be able to navigate through what’s happening, the stress, the fact that they’re not allowed to go to parks, the fact that they’re not allowed to go into school, the fact that they’re not allowed to see their friends. They need the stability and love of their parents and not one parent throwing out the other because they’re hurt. You know, we need to internalize those thoughts. I know there’s psychologists working online, friends, chats, you have to use those other outlets and resources and shelter the kids as much as possible about that, that conflict that’s happening inside the home.

Marie: moving ahead, were discussing with the lawyer in our new series, Maitre Sheri Spunt and her team. I love the expression “boutique” firm because it is. A lot of personal interactive exchanges with clients that are living through very difficult times whether you’re the husband, the wife, the mom, the dad. I can only imagine there was a time when you were so in love you couldn’t wait to get married and now you can’t stand each other and you want to get divorced. Talk about two extremes, Maitre. I assume that’s why the emotions kick in, yes?

Sheri: absolutely. And we try and navigate that. When someone calls us, our goal is to try and bring down the tension and work through it one piece at a time to try and get to the solution part. Obviously, it’s very emotional but our job is to try and navigate through the emotions, to then understand what the client’s goals are, what the family unit is made up of, what it means, and what creative solutions we can come up with that everybody can be happy with.

Marie: you know when somebody talks about divorce, I remember I had read somewhere that you need to protect yourself and of course your health, your wealth and your happiness. And I’m thinking, I mean when you divorce, it can affect your health, I can see how, but after when you get your divorce, I would assume happiness sets in again for whoever wanted it. And regarding your wealth, I mean, really? If you have wealth, I understand who don’t like the woman they married anymore, don’t want to give her a penny, but if you have children shouldn’t you be able to override that feeling and make sure your kids are taken care of well?

Sheri: absolutely but the problem here is what happens when parents don’t agree on things. So obviously when parents are together and they’re still one family unit, there’s debates, there’s fighting, there’s arguing, usually a solution is found somehow. There’s also family mediation, sometimes that works or if you’re already seeing a family counselor. However, when couples are no longer together anymore and they’re separated, and they don’t agree on the same thing, there’s only one other person who can make a decision and that’s the judge unfortunately. But there’s also mediation, there’s also online mediators right now who are working trying to get couples to come to a solution but for example, you know the parents who aren’t agreeing to the back to school, parents who don’t agree based on what one of the parent’s jobs are, these are things that they’re now bringing to the court and asking them to make a decision because they can’t make a decision on their own

Marie: okay so you’re telling me that a parent’s job risk can define who gets custody? This must be something new for judges too right?

Sheri: it is new and I mean you mentioned the case from the States. Now I don’t necessarily think that our courts would have had the same reflex there. There’s been obviously quite a few cases that have been rendered in Quebec since this has all happened and in general, one of the things that the courts are looking to the most are stability for the children and best interest of the child. What is in the child’s best interest and I want to be very clear in what I’m saying here. It’s really a case by case basis. If you have a kid at home whose asthmatic or a child who has certain medical conditions, that’s obviously an exceptional case and that’s different but let’s  say were taking very healthy children, a health household, that the parents all taking all the precautions that are recommended, I wouldn’t say that our courts are so quick to do what is done in the judgment in the States with Dr. Green whose on the front line. Here, were seeing in a lot of the recent case law, there’s a conclusion at the bottom of almost every case, that says order the parents to respect the rules of social distancing and sanitization and to make sure that they’re safe so they’re really trusting the parents act in the children’s best interest and to make sure that they’re washing their hands and that they’re making sure that the kids are safe and that when the kids are in their care, they’re not seeing other children. So, they’re really counting on the parents to do that. If everybody’s healthy, if the family is asymptomatic, they’re maintaining the status quo of shared custody for the most part. Except in cases like I’m saying if the children are sick or if there’s seniors in the home or there’s always a case by case basis right so we can’t really have a generalization about what the courts are doing but the logic and the reasoning here about the ER doctor and taking away the custody on a temporary basis is not the narrative that were having in Quebec.

Marie: first of all, I want to say hats off to you. I was floored when you mentioned Dr. Green, so let me fill in for the audience. Dr. Teresa green is a South Florida doctor. Even though tested negative for Covid 19 last week, it did not stop her ex-husband Eric Green from petitioning a judge to revoke shared custody of their four-year-old daughter who equally splits time between both parents. As if nurses and doctors are not dealing with enough already now, they have to worry about their parental rights. This emergency room position on the front line in the fight against Coronavirus had her child custody rights revoked last week over the virus. Wow. That happened in Florida.

Sheri: it’s not that far away right. It’s really a challenging time enough for everyone, I mean our government made it clear that if families are in shared custody, that’s to be maintained unless there’s an exceptional reason. But another method that needs to be put out there and this is something that our courts and judges across the province are repeating over and over is that parents cannot unilaterally suspend access because of Covid. Cannot. Unless for example, the other parent was just diagnosed with Covid-19 and the other household has it. And in that case, you would hope that the parent who contracted it would inform the other parent and say look, until were better, you keep the children and well do facetime and well do this and well do that. But certainly, you would hope that people would use logic and use reason but in cases where the parents are absolutely on different ends of the spectrum and don’t get it, of course you have to go to the courts but the courts do not want parents to start unilaterally taking the law into their own hands, disrespecting orders because they feel it’s in their child’s best interest. That’s not allowed. Another thing that’s in a lot of the courts judgments these days is authorizing peace officers to make sure that the laws are respected. So, for example, if one parent is not passing over the children, if that’s something that they’re saying you know if you need help with that respect you can ask the peace officer to intervene. So, they’re really trying to send this message that unless there’s an exceptional circumstance and there’s symptoms and someone has contracted the virus, keep everybody at home, keep everybody safe, be respectful of the other household. So, for example, I have clients who live in apartment buildings, the other parent shouldn’t be coming into the foyer od that apartment building. They should be dropping off the child outside, 6 feet away from the door, not disturbing anybody else. Everybody just has to be mindful and considerate of everybody’s safety and health.

Marie: okay well I’m just going to read this. For couples who are already in the process of ending their marriage, there are new reasons for contentions now that didn’t even exist three months ago. One of these is a spouse feels an ex is putting their children at risk by not adhering to sheltered in place mandates or refusing to practice social distancing. The courts now have to weigh in a whole new set of factors for these contentions balancing between the legal consequences and personal beliefs and that could potentially turn several child custody proceedings upside down. We’re likely also to see in the future and this is the one that scares me, Maitre, I’m so glad you’re on here for the next few weeks, were likely to see the future battles between parents over whether or not their children will have the Covid-19 vaccine when it becomes available. So, ya quite a few new things are going to be coming up that you will be dealing with I’m sure

Sheri: ya I mean vaccines in general are something that are parental authority. So, both parents hold parental authority of their children which means they make all decisions with respect to religion, health, any medical intervention, schooling, education all of that

Marie: and when do we go to court? When we disagree on one of those topics?

Sheri: if it comes down to that I mean I would first obviously suggest mediation, conflict resolution, if both parties have lawyers to try and have an open discussion. I would try and do all that before we go into a court room. We always try and see what we can settle first, right.

Marie: because the vaccine thing, I already know a couple where the opinions are completely different, the two ends of the spectrum

Sheri: yes absolutely but I think that now there’s going to be a lot of education, a lot of service announcements, a lot of information from government, and I mean this is real. When we’re talking about the chicken pox vaccine and other things, we haven’t seen it really because of vaccines. You have young families who might feel that it’s not necessary and that they don’t need to vaccinate their kids which is, we’re not going to get into that whole debate but that comes from a place of a lack of education with respect to vaccines in general right? Why are we not seeing as many cases of Rubella? All these different types of things that we vaccinate against, it’s because of vaccines. So, when this comes out, everyone has lived this now, everyone has lived the lockdown, social distancing, isolation and all of that so to think that a vaccine is going to come out and a solution is going to come out and someone is going to want to reject it and deprive their child of having it, as hard as it is to believe, I believe that’s going to end up happening. So I do think that our cases of it might be less because people will be more educated about it and I hope that our government takes that role to educate how important that is but if it doesn’t work, then ya you go to court and it can be something that can be debated but a judge would probably defer back to the parents and say you two are probably in the best position to decide what’s in your child’s best interest.

Marie: 100%, if I was a judge, I would do the same and if they couldn’t come up with it I would defer it to the lawyers, let your lawyers decide who gets your vaccine haha

Sheri: ya, exactly

Marie: no judge wants that decision. Okay maam another question, never thought of this one. A sibling who’s a teenager living in a very violent household. The parents both of them nutcases, always swearing degrading remarks. He has younger siblings. Can he hire a lawyer to save his brother and sister?

Sheri: ya if he’s a resourceful teenager, sure. If the parents are not willing to engage in the children or acknowledge that this is a problem, which is in a lot of cases, the parents they’ve always lived this way, they don’t understand that its problematic to the kids or they’re unable to see that right now, a child 12 and up is allowed to be represented by a children’s attorney. There are even some exceptional cases now where younger children, it can be deemed that they’re sufficiently mature to give a lawyer a mandate and really be able to verbalize to a lawyer what their wishes are, where they want to live, what they want to do, and so on. So technically a teenager can pick up a phone and call a children’s lawyer and we represent children also and can call and say I’m in this type of situation and my parents are always arguing and its very challenging and I don’t know at that point. Would I be better living with my grandparent or are my parents separating and I want to live with my mother? You know it’s very challenging especially if the parents aren’t already separated or aren’t planning on doing that. That being said, to answer your question, a child can give a mandate to a lawyer. In Quebec, were lucky enough that a child can give a mandate to a lawyer and be covered under legal aid in general. Obviously, there’s exceptions to that if the parents earn a substantial amount of money, it’s possible that they might not be eligible. But for the most part, children are able to get mandates under legal aid so it means that their legal fees will be covered and a lawyer will draft motions for them and making certain requests to the court. Of course, there’s also Youth Protection. So, there’s the Director of Youth Protection and that’s in Cour du Québec where that is for children who specifically are exposed to violence, emotional and physical abuse and that’s a different court system as well but that deals with kids who are suffering from parental conflict as well

Marie: oh ya because listen, not being able to come out of your bedroom and every morning when you open your eyes, all you hear is mom and dad insulting each other and putting each other down again, you don’t even want to get out of bed never mind come out of your room for breakfast

Sheri: no its terrible and there’s a lot of kids who are unfortunately exposed to that and parents sometimes don’t even realize how it’s affecting the kids but its psychological ill-treatment for the kids to have to be exposed to that and one thing that we tell our clients all the time especially when they’re going through this process of divorce and its challenging, for example like we talked about earlier on the show that if one of the parents cheats on the other, the kids should never ever know that. A child should not be burdened with that information. A child needs to focus on one thing that’s themselves and their childhood, having a good time, learning and that’s it. So, we really need to work harder, parents really need to work harder on sheltering their kids from their own conflict

Marie: ya it’s unfortunate but you hit the nail on the head, sometimes I’ve seen mothers so hurt that the husband cheated and the husband moved on to file for divorce, to marry the younger wife, found out the younger girlfriend was pregnant, anyway so sad, no one to discuss it with and they start talking to the child about their feelings. And I had to tell a girlfriend of mine listen you have to stop referring to her father as the a-hole as the sleaze as the this

Sheri: no no no

Marie: even though it was true, I knew the guy but still

Sheri: no listen, almost every judgment now, any judgment that deals with parents and children, there’s orders to not denigrate the other parent, the other parents family, the other parents new spouse, girlfriend, boyfriend what have you because that’s really a burden that you’re putting on your children that they do not deserve and that’s kind of one of the things where you have to be an adult and keep it to yourself

Marie: ya alright let’s look at child support and alimony payments. In certain cases, you know the husband, because in most cases it’s the dad who are paying the child support and alimony, have been directly impacted by this Covid-19 and their ability to keep making those payments is waning. What can they do? Can they call you to inform the spouse or the court that I can’t make these payments anymore? And on the other side, if the wife got a letter from a lawyer saying well, I’m informing you my client John Smith can no longer make payments, what can she do? If she calls you what is her recourse? So, if you can give us both sides please Maitre

Sheri: so, what we’re doing right now, were doing a lot of temporary orders. So we’ve had a lot of calls, clients coming in, I’m not working anymore, I’m on EI or I’m not entitled to whatever subsidies or benefits are being offered by the government and I’m unable to make my support payments. So the first thing we would do is if the other party is not represented by an attorney , we would try and reach out to them, again open a dialogue, see if we can come up with an agreement on a temporary basis during this Covid-19 crisis that there would be a specific child support amount that’s being paid or a spousal support that’s being paid during that time. That’s best-case scenario, we agree amongst ourselves. If for example, the payment is being collected by the MRQ which is the Ministère de Revenu de Québec, who takes des prélèvements automatiques à chaque mois, then we would need a court order to be able to be clear that they know what they need to collect. So, in cases of that, if we have an agreement, we would draft an agreement, we would send it to the court by email we would ask them to homologate it, send it to MRQ so they now know what’s the correct amount to be collected. So were asking again, everyone to be reasonable. This is not coming from a place of bad faith; this is not coming from mom or dad not wanting to fulfil or respect their financial obligations. They can’t. And for the most part I find that people have been reasonable and we have been able to come up with agreements. At the end of the day you still have to remember, that the other parent, if they’re the primary custodian, they need to buy groceries for that child, right, they still need basic amounts so we still need to find a way to contribute something reasonable that the family and the children are still okay and respecting the goals of what child support is for which is shelter and food and basic essentials.

Marie: if your husband is wealthy and the lawyer managed to get great child support based on his $380,000 a year salary, he has no salary now but he has a huge portfolio and a few million in savings. Can you ask the lawyer, I mean because if I got a letter from my husband, you know what your husband now isn’t getting paid so he can’t keep getting paid meanwhile I know he’s worth 3 and a half million, I’m going to a lawyer.

Sheri: that’s a great question, it happened even pre-Covid as well. Ya of course, again, as angry as people are or as unsettled as they are when they’re going through the divorce process, you have to remember one thing: what is this money for? It’s for the children, right? Its so the children can have all the essentials that they need, maintain the same lifestyle that they had during their marriage and if dad or mom is sitting on a large portfolio and has the financial means to continue paying the same support or a similar support, they absolutely should be doing that. And the courts are not necessarily going to be sympathetic to someone who has the money in the bank and whose claiming that they’re in an emergency. Claiming an emergency to the court right now is like I cannot continue to pay, I will lose my house, I’m going to have to mortgage my house, I don’t have income, I have to buy groceries too. Were really talking about desperate situations. Not somebody who’s just the cashflow is a little bit lower than usual. It really has to be that you’re in a difficult place and you’re seeking the relief from the court to help you during this time to make it easier for you but still be able to fulfill a basic obligation. So, there wouldn’t be too much sympathy to that.

Marie: ya and it also begs the question, what kind of a father or mother are you if you’re the one whose financially secure, you don’t want to send money for your children? I mean who does that? These are your children

Sheri: but it comes from the spite and form the anger and from all of that and until parents are able to break away from that, and see their kids as their kids and that ya they’re divorced now but when you call the courthouse they have this saying, marier pour un jour, parents pour toujours. I tell my clients that all the time. You’re divorced now but you’re going to be parents with this other person for the rest of your lie and you need to find a way to coexist because otherwise your kids are going to hate you both. You know? Stealing their childhood

Marie: I love what you said, parents pour toujours. C’est bien dit, Maitre

Sheri: well it’s not mine, like I said I took it from the courthouse

Marie: parents pour toujours, I love it. Okay, there is a way apparently, you were telling me off air, about how we can address the court by mail. Can you please explain?

Sheri: so, in situations like I said, the courts are really dealing with urgent measures, but now that the pandemic has gone on for so much longer than I don’t know that any of us really knew how long this was going to be, they’ve come up with other exceptional ways to issue non urgent motions. So non-urgent motions which are usually done by a bailiff going into the courthouse, seeing a clerk at the window, getting a court number, paying for it, etc. now, because of the exceptional circumstances, they’re allowing you to do a non-urgent motion, to do a requête introductive d’instance, a first motion, by mail. And you can do it by mail and you have to ensure that there’s the appropriate payment for the frais judiciaires, which means you know there’s a court stamp of a few hundred dollars to be able to issue it. So, they’re starting to allow this other mode, because like I said we get des avis presque à la quotidienne to know what the new steps are and what we can do. So, I think because of the duration, now they’re accepting by mail. The speed by which they’re going to be processed, that’s obviously to be determined as time goes on but at least they’re allowing us to come up with another way to still get things going and you know you were talking about before that people are in these situations and feel very stuck and trapped like when’s my way out and sometimes even before the pandemic, I have clients that we talk you know right after we issue a motion which means that the motion is finalized, it’s been filed in the court record and served already that they feel an alleviation of stress because the biggest step is done, that’s initiating it, it’s out there and now they can start to see the light of the begging of the end of the process. So that can be a way to make it a little bit easier for couples right now who are in a challenging situation to at least initiate the process

Marie: I’m going to leave you with a question now, can I sue for emotional distress when I found out that my husband was having an affair, that my wife was having an affair and the effect that had on my health because it devastated me, it affected my job and could you petition then at that court case, the lover, your husband or wife’s lover?

Sheri: I mean in terms of damages and asking the court for prejudice that it caused to somebody in the context of a divorce, as parents, the answer unfortunately is no. similar to what we discussed previously in terms of the no-fault divorce in Quebec with respect to the adultery. There’s certain nuances of course that we can make to that which would be, if because of the relationship one of the parties is no longer able to work during the relationship itself, let’s say the affair was going on for a few years and because of that, it was debilitating to the other spouse and they were unable to work and there’s a direct link and consequence of the marriage or the breakdown of the marriage that resulted in the other spouse being able to work, that’s when for example a spousal support could come into effect. Or other type of compensation to that end in order to help that spouse become financially independent to work and so on. Another thing for example if you had hours and hours of therapy required, that’s something that we might ask the other party to pay for and this is something that can be agreed to on an amicable basis or that can be asked by a court order. But, specific damages per se is not really something so much that’s done often in family court

Marie: ya I know. You know I grew up at a time when the private eye would wait outside the motel with a polaroid and snap the picture of the two coming out of the motel room because you couldn’t get a divorce come hell or high water unless there were some serious reasons because the family unit was so important to keep mom and dad together again for the children. Today you want to go party and have some affairs while you’re married and if its not discussed with your spouse to agree to an open marriage. This is another question. When it comes to an open marriage, can that turn against you ever should you move ahead for divorce? Should couples that agree on open marriages get something in writing from a lawyer?

Sheri: it’s an interesting question.

Marie: you’re going to hear a lot of interesting questions from Mike FM, trust me.

Sheri: I’m not often speechless, but I’m kind of speechless. But the whole thing about an open marriage in general, what I could tell you, is a few years back I have a cousin who is in a gay relationship, got married, it was not an open marriage, and only later did the spouse spring it on them that this is something that he wanted and unfortunately it later ended up in divorce and I was thinking, that made me think a lot at the time, it’s the same thing as all relationships, heterosexual, homosexual relationships, these are things that you need to discuss and agree on in advance. What your intentions are. What kind of relationship do you want to have? Is it going to be closed marriage? Is it not? And it never ends well. I have had couples who have come to see me after they’re married and it ended because one of the spouses said that they were okay with an open marriage at one point and then changed their minds. So, these are just fundamental points and decisions that have to be made before people get married. As important as deciding what your matrimonial regime is going to be, are you going to be separate as to property or not, are you marrying this person, are you going to be content that this is going to be the person for the rest of your life or not. So, I think that there’s not necessarily, I wouldn’t tell you something that our courts look to in terms of these type of agreements or anything like that, it would be more determining between the couple in advance what they’re comfortable with and what they’re not. And of course, at any point, either spouse can change their mind that they’re no longer comfortable with that or that they want an open marriage even though it was never discussed before

Marie: ya its tricky, I remember because this is something new, we talk more about it in the last decade, but about 25 years ago I knew a couple and there was a club here in Montreal where you could go and do wife swapping or husband swapping

Sheri: key parties

Marie: anyway, she went twice obviously it wasn’t for her, she was afraid to tell her husband that she did not enjoy it, she did not like it and she wished he wouldn’t either. She was afraid to tell him. He thought it was just wonderful. That they had this great open relationship. She was miserable, Maitre. Oy.

Sheri: complicated

Marie: ya there’s the moral values, there’s sexual values. You know it didn’t mean anything I love you it was only for sex.  Right? How many times have we heard a man or a woman say that?

Sheri: a few at least

Marie: ya and you’re like ya you know what, don’t love me as much just be loyal. Alright before we get to the top of the hour, I think the topic that will be the most talked about right now between a couple with children where some disagreement might rear its ugly head is, do we let the kids go back to school, yes or no? what are you getting around that?

Sheri: so, I’m getting mixed from different parents obviously who are in different fields who are either forced back to work or are going back to work. There are already 4 cases that came up in Quebec at least that I know of so far and again the tendency of the court is that and I quote Justice Villeneuve that “il n’appartient pas au tribunal mais plutôt au autorité gouvernementale compétente d’évaluer des risques potentiels de contamination de la population en situation de pandémie”. So, what a lot of the judges have been saying is that the government has decided that they believe it’s safe for the kids to return to school. And the judges are not going to be there to determine whether it’s safe or not, that’s already been decided. Again, I say as a generalization. However, there’s specific case by case situations – child has asthma, child is sick. There was a case rendered recently where the parent’s new partner is very vulnerable and has lupus and is in a situation where they cannot contract Covid-19 and that would mean that that child would be staying full time with the other parent. And the courts determined that that is not in the child’s best interest to not see the other parent for an indefinite period of time. So, in a case like that, they ordered that the child could stay home. So, it’s really a case by case basis but the general narrative right now is that the government has decided that its safe, so unless there’s an exceptional circumstance in your particular case that would deem it not safe to go back, that would be the decision that’s made. But again, it’s tricky because it’s a question of parental authority again and we really urge our clients to discuss it, to talk about it and to try and come up with a solution between themselves before running into court

Marie: you know it’s funny because a family that had 2 kids to appease both parents, one parent was saying yes, one parent was saying no, so they agreed one kid could go to school

Sheri: unbelievable

Marie: I know you’re like excuse me??

Sheri: you gotta do what you gotta do I guess, you gotta come up with creative solutions and you gotta think about your kid and maybe some kids are fine with the home schooling and we have to think about all the kids, so some kids who rely on meals or who rely on school for meals or for structure, stability or maybe things aren’t happy at home so there are kids who really depend on that and then there’s other kids who are okay so every family is different and we have to be sensitive to all of that and as parents, we have to think what is in our children’s best interest, where are they going to be best. And that’s something that we hope parents can agree on together and if they can’t, like I said there’s other tools out there, there’s mediation, there’s alternative conflict resolution, there’s lawyers who can try and help out and at the last resort you ask a judge who doesn’t know your family to make the decision but if that’s what you need then that’s the last resort