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May 25th 2020 Radio
Episode Transcript

Marie: I want to talk to this woman, I have so many questions, part of our awareness series, this is Maitre Sheri Spunt and its family law, good morning Maitre

Sheri: good morning how are you?

Marie: praise the lord. How was your weekend good?

Sheri: it was very good thank you, we had the sun so who can complain?

Marie: so true. Maitre I’m going to start again with those that are questioning their relationships, but I’m going to start maybe a bit on a positive note. And this was a question I got after your first appearance on the awareness series. Somebody wrote and said, what if during this time you realize that you do love each other, they want to get back together, they had divorced, the custody rules were in place, the alimony payments were being made, but because of this, they got back together. And the question, I didn’t know what to say to the listener was, do we cancel? Do you need a lawyer to tell the courts were back together? Do you cancel all the court’s decisions regarding the alimony and the child custody?

Sheri: well I mean it depends what people want. I’ve seen cases where it was right before a final divorce judgment was going to be rendered, and the parties changed their minds, they decided they wanted to reconcile so then everything went back to how it was before and then every time you reconcile, you go back to zero so everything kind of starts all over again 

Marie: alright so somebody can call you and say here’s a decision, we were granted a divorce, three years, five years whatever, we want to get back together again legally. Were even planning on remarrying. I would prefer going to a lawyer and having them inform the courts that this will no longer exist right?

Sheri: well not necessarily I mean basically, even if there’s a judgment that’s in effect, and both parties amicably decide that they’re moving in together and that they’re going to be now resuming sharing custody of their children, that’s an agreement they’re allowed to make, it doesn’t necessarily have to be written or homologated because now they’re on the same page. The problem would be of course if they were to break up again and then if they were to break up again, there would be a change of circumstance so their old judgment would not necessarily apply because there’s been a change of circumstances and things have changed. There would need to be a modification for example for custody

Marie: okay because that’s what would worry me, if I was the husband and I was paying child custody and alimony, if we were to get back together again, I would want those orders quashed. 

Sheri: yes, so for child support orders and for other financial orders like that, so child support orders or spousal support orders being collected for example by the minister of revenue Quebec (the MRQ), they would need a judgment showing that that automatic collection is no longer supposed to happen. So let’s say the parties were doing it between themselves, then that would be fine, if they were collecting and there was an etransfer per child per month for child support or if they were sending child support by cheque, then there’s no one officially that they would have to inform if those payments weren’t happening anymore but if it’s by an automatic collection they would continue collecting until they get a modified judgment.

Marie: alright because I thought you know what, that’s such a good question. We always discuss what happens when you break up, when you fall out of love but what if somebody does want to get back together again in a legal matrimonial category

Sheri: yes, I know people who have gotten divorced and remarried

Marie: ya exactly

Sheri: so, it’s the same people so anything’s possible, and then separated again. And that’s why the courts require that you be separated for 1 year before a divorce judgment is rendered because reconciliation does happen, so if we didn’t have that 1 year delay, that would happen to many couples who would be rushing into it, the emotion, or if there was an affair what have you, it doesn’t give the parties sufficient time to see if they could live with that, they could reconcile it, they could go to therapy, so that’s why we have that 1 year delay in order to see if the parties have any possibility of reconciling and to make sure everyone’s not running into court as quickly as you can run and get married 

Marie: okay, I’m going to go back now a few hundred years, when I was younger and I applied to the courts for a separation. My husband and I were not getting along, he was out of town for a while, anyways long story short I went to a lawyer and he said do you want a divorce and I said no, also my parents and that divorce was a bad word then, and went for this legal separation and he was served these separation papers. What the hell did that mean? You don’t have that, today do we?

Sheri: separation still exists in a few situations. So, for example, if someone is living in Quebec, has not lived here yet for a year, they’re not entitled to issue a divorce application. So, what that means is that they would then as a stepping stone file for a separation until they’ve then been living in Quebec for a year and at which point, we could transfer the request for a separation into a divorce application. So that’s one of the criteria for divorce application that you’ve been residing in Quebec for a year. Other scenarios in which somebody maybe interested in a separation is if for example, the parties are unsure, they’re unsure whether they want a divorce, but they’re sure that they want to separate. So if they want to separate and do a legal separation at which point they can then be autonomously responsible for their own finances and do like a freeze of their assets of that point so that at that point in time, they are separate, their properties are separated, everybody knows whose is whose and how that’s going to work its way out and if that couple decides to reconcile they can then reconcile but they’re not divorced so they’re still married, they haven’t taken that extra step. I also have other cases where clients come to me and they’re like our marriage is over but we can’t get a divorce because my religion doesn’t accept that. Or my community doesn’t accept that but then we allow them on the financial side to be as if they were divorced but that they still are married if that’s what’s accepted for example by their community

Marie: and they can live in separate homes at that time?

Sheri: yes so there’s a legal separation which allows them to no longer, because one of the criteria of marriage is that you cohabitate, so once you have legal separation, that alleviates that obligation. If there’s a couple today who knows that they no longer want to be married to that person, they do not have religious or community restrictions, they’ve been living here for 1 year, there’s no reason to do a separation and then a divorce because its more costly, its more proceedings and there’s just no reason for it. So I think it was maybe something more common that was done before but now if both parties are sure, tis definitely the simpler, easier path to take because you’re not doing multiple agreements, or multiple court attendances, and it just can become a very very voluminous file for nothing if the parties know  that that’s in fact what they want

Marie: okay I have another very interesting question here, gee this is going to be a fun week. How hard is it to get a divorce if you’re in your eighties?

Sheri: its not harder than if you were thirty. I’ve divorced someone as sold as, one party was 92 the other party was 94.

Marie: common

Sheri: no seriously I think that was more involved because the step children wanted them to get divorced in terms of will and inheritance and all of that

Marie: I thought it was because one of them cheated on the other

Sheri: no it wasn’t that but I think that that’s the problem, with the older age group, the problem becomes the family members. Right? And with arranged marriage. But it’s really the same, the only thing that can be more challenging would be access to information and how long was the marriage and do they have access to their documents from before and you know, all their accounting and statements from the date of their marriage to determine what the value of their assets are on the date of their separation but it would be the exact same procedure

Marie: okay Maitre Spunt, you just said something here that piqued my interest and I’m sure some of my listeners. Arranged marriage. You mean there is hope for a woman listening today, even if she’s a senior, to see that day that she’s free that she never thought she would see? You just said something very interesting. You can get out of an arranged marriage in Canada if you call your lawyer even at an age past 80?

Sheri: ya why not?

Marie: wow

Sheri: were in Canada here

Marie: better late than never, girl!

Sheri: absolutely, I mean listen life is too short to be unhappy so you have to find a solution

Marie: especially if you’re into your eighties and you’re feeling pretty good, you might have another 20 years

Sheri: right you don’t need extra baggage

Marie: no, can’t carry it at that age, too heavy

Okay maam, quick question here from somebody, in Canada, if you’re marrying Jewish into Jewish but there’s a get in the middle, can you still get married under Canada’s laws without getting a get?

Sheri: yes. So, the get is a separate entity, it’s a separate marriage contract, the Jewish marriage contract, that is done simultaneously with the civil marriage contract. Now, so you can remarry in Quebec however, if the party that intends to remarry is still religious, under the religious law, without having the get they are not allowed to remarry. So that’s what becomes problematic. So, I’ve seen cases where a party divorces and the party who wants to remarry is no longer religious so if the other party is withholding the get, it’s not problematic on a civil basis. However, if they’re still within the community, both parties are still religious, it’s like holding the other person hostage from being able to remarry, being able to move on with their lives, and we’ve done quite a few cases on that and the Superior Court has even sided in certain cases that if the party was manipulating the Superior Court system but refusing to engage or entertain the rabbinical court that they were barred from filing further proceedings for example in Superior Court. You can’t have your cake and eat it too. You know pretend that you’re going along with it on a civil basis, maybe for financial reasons but holding your soon to be ex-spouse from moving on with their life.

Marie: okay another question and for those of us who are not very familiar with this, I love learning. When you marry, see I nearly married a Jewish gentleman, when I go I go very stereotype, but we were engaged and everything, but my question is when you marry in a synagogue under a rabbi rule, or your religion’s rules, do I automatically get the get or is it something you apply for?

Sheri: the get is something that’s given after, once you’re getting divorced, so get is a document of release, equivalent to a civil divorce

Marie: okay, can I marry in a synagogue with a rabbi and never have a get or is it automatically a part of the service?

Sheri: the get is after so the rabbis started doing something new. When I got married, they would want you to sign in advance that you would not withhold the get from the other party. Sometimes that’s done. But that kind of and this is getting very complicated, obviously its Jewish law and I would by no means call myself an expert in that field but from my own experience, they were trying to alleviate that power of one of the spouses to withhold it so there were discussions about it in advance, not to withhold it, that in the event there was a divorce, you would not withhold it. You then don’t want to invalidate the marriage or the concept of the get either so it’s a very kind of grey zone and it’s a fine line but rabbis were trying to make it more contemporary and trying to find a creative way to avoid these really challenging family situations that occur that if a religious couple do not continue, that they can still move on with their lives and that the other person can’t continue to control them.

Marie: you know what, that was fabulous hindsight though because it’s true, I mean if a get is supposed to be a beautiful thing, a document entrenched in religion and meaning, etc. it’s a terrible thing if somebody would abuse it to try and make you miserable

Sheri: it’s awful, I mean I’ve seen some really unfortunate cases where that has happened and it even went up to the Supreme Court of Canada as well because it’s been an issue that’s been going on for a long time

Marie: I told you it came across my way when I got engaged to someone of Jewish faith which again, it didn’t work out but still I learned. Alright next question here. The kids – with what’s going on now with Covid and because it’s going to last a while, is it possible to change conditions, if somebody calls you and says look here are the conditions for child custody, but my wife and I have agreed during Covid, or at least until the end of the year, or maybe even until September because school comes into play, we’d like to divide the kids. I will keep this child, she will keep these and were not going to see each other until the end of summer because of Covid. Can you make changes on your own? And if you do, should you do a one-pager and each parent signs it? Should we be calling you instead to make the changes?

Sheri: I would say it depends on a case by case basis. So, let’s say in theory there’s a couple and they have 2-3 children, they decide the best interest of their children during this Covid period, maybe because of their age, maybe one child is homeschooling, the other is not, that they want to do that. That’s fine as long as were talking about Superior Court orders. For example, if their Cour de Quebec, so the Cour de Quebec orders under the youth court protection, then those changes cannot be made on an amicable basis, those are subject to the director of youth protection, the social worker recommendations have been made and those court orders absolutely have to be respected. However, if it’s a superior court order and the parties on an amicable basis decide they want to modify on a temporary situation, their custody, and they’re very amicable, they can do that on their own. However, there’s other cases where the parties might make this decision together on the onset, agree, ya I’m fine with it, but if they’re a couple that has previously had a lot of challenges and difficulties in the past in terms of respecting orders, and respecting a schedule that has been put in place, in those situations, I would recommend that a consent agreement would be signed, officially, drafted by an attorney and then homologated by the court. So the homologation process is what makes the consent agreement enforceable and then that would be filed in the court record as the new temporary let’s say order that’s in place and then once the Covid arrangement for this couple is over, then I would suggest that they either find an agreement that they’re going to return to their previous agreement or in the temporary agreement it would make reference to the end date or  it would be contingent on certain factors. You just want everything to be clear for everybody and it’s amazing if two parties can come up with an agreement but in certain cases, it would be better that it would be homologated by the court and everybody knows that they’re really bound by it. And then the next week they can’t say well I changed my mind. Then it gets complicated for the kids too. You want to be able to give the kids stability and structure and you don’t want to risk changing their schedule multiple times, especially during this difficult period.

Marie: ok first of all, from the beginning I’ve always liked you, I think you have this something that impresses me beyond belief, you just give me confidence, the sound of your voice, your delivery, your confidence it’s just wonderful

Sheri: you’re too kind.

Marie: no because you said something now that if I had to pick a lawyer, I hope I get to you first before my ex does because you just made reference, on the question I just asked about dividing the children because of Covid, you started your answer by saying first I want to look at past behavior regarding how that other party respecting prior agreements and I’m like, are you kidding me Maitre, wow.

Sheri: ya I mean again its pattern. And I think a lot of it is about making sure that everything we decide to do is in the children’s best interest and to try and prevent problems before they come and we know that there’s a certain way that works, then that’s the proper course to follow, then let’s do it before it becomes a problem you know

Marie: a gentleman wanted me to ask you, his financial situation has changed tremendously, restaurant owner, not doing very well. Really has no idea even how the future is going to go, and good luck trying to sell a restaurant today. whereas he has a value of an x amount, today he doesn’t even know if he has the x never mind the amount. Trying to find some humor, he did when he was telling me the story but he’s concerned and he wanted me to ask you, what he’s paying plus an ongoing case he has where the wife is trying to get more money, very ugly divorce, how does he refile now that his own life has changed? Can he call you for that?

Sheri: so you would have to do a modification of the judgment based on the change of circumstance. So obviously that’s happening a lot for a lot of people and it’s an unfortunate reality right now that a lot of people’s financial situations are changing drastically. So, what we’ve done in certain files is we’ve made agreements with the other party, perhaps there will be a lower amount of support that’s being paid now and there will be adjustments made once the parties have the financial means to return to a more normal situation financially. We’ve had certain cases where support has been suspended if there’s really no relief but don’t forget, some people are still getting unemployment, or the CERB, other benefits. So those benefits are still taken into account when we’re calculating child support and at the end of the day, whether you’re divorced or not and if you’re living in the same house you would still have to buy groceries for your kids, you would still have to pay your basic expenses and that’s something that parents also have to remember is that it’s for their kids or if it’s for the spouse, it’s for the mother or father of their kids and its always in reason. People need to work together and work within what’s reasonable and I think one of the things that’s fair is reducing it temporarily if necessary and then there could be adjustments later for catch up because this is like I said a difficult time on both ends

Marie: alright next question, alimony and child custody or child payments, are they two completely different files in the eyes of the court?

Sheri: they would be under the same file but they’re treated completely separately. So child support is one thing, that’s support that’s determined by the government, it’s a provincial jurisdiction, and the government determines based on the number of children, based on the salary of both parents, based on the custody schedule, meaning how many days the child is with each parent, has a table that calculates automatically what that child support would be: based on number of kids, based on salary, based on how many days with each parent. And that’s public order. Child support is public order. A parent cannot renounce to receiving it. And the other parent can’t refuse to pay it. It’s a right that belongs to the child to be respected by their parents

Marie: what if john smith, who’s struggling, has a decent job, is far from being considered wealthy, loves his children, they’re separating/divorcing and the wife is wealthy, comes from a wealthy family. I mean, does the court make exceptions? Can they bang this guy out even if she has all the money?

Sheri: again, it depends case by case but in situations for example, her family’s wealth doesn’t necessarily have anything to do with the obligations towards the children. The things it’s supposed to be is a mother and fathers’ obligation to support their children. If a mother is getting an income or is in a family trust or has funds that are coming in, that’s going to be put on her side of the balance sheet, treated as income. So, there is a way to impute an income to a party. So, let’s say she has a few million dollars of assets because she’s invested over time, she’s inherited, or what have you, and that generates monthly income, that’s considered her income. That’s considered part of her income. So, income covers a lot of different areas and the goal of that of course is to make it that it is fair between the parents to equalize it. But if it’s a substantial amount, have assets and such, that is taken into account sometimes from deviating from the basic child support tables. Like you asked me before about spousal support, spousal support is something different, that’s for the spouse and you would have to meet certain criteria in order to be eligible to receive a spousal support.

Marie: Maitre, every time we speak about alimony which is the word directed to spousal support, am I correct?

Sheri: exactly, people kind of interchange it, but one’s child support and one’s spousal support, one’s for the kids and one’s for the spouse

Marie: alright, so alimony- can a husband move ahead in court and ask for alimony from the wealthy wife who does have what you just explained and collects the $8000 a month in interest or whatever?

Sheri: well listen, if the family for example was using those funds to live off of, so let’s say she generated or took in $250,000 a year from that wealth and the family lived off it and dad didn’t work the same hours or the same job that he would have if those funds were not coming in, then that’s an argument that could be made that he’s been financially dependant on her throughout the marriage and that he has not continued to further push his career because of those amounts, because the family had that to rely on and now he’s going to be stuck and how does he make his household equivalent to the lifestyle that the family was accustomed to before the separation. So that’s one of the factors. You have to prove that there was an economic dependency, that he was dependent on that wealth, that he was impoverished that she was enriched during that time. That might be a little bit tricky at that point there. And then then the third criteria is that she has the capacity to pay. Can she pay it out? And then a lo t of the things that people are sometimes quick to assume are that the amounts are arbitrary. Thea mounts that fixes the spousal support again is based on a government form that’s a budget and it’s a detailed budget that lists all expenses that someone would have to pay annually or monthly, so your car, maintenance, your house, mortgage, union fees, telephone, alcohol, tobacco, gifts – everything is listed on there. We input the party’s income, what the expenses are and then you see if there’s a monthly deficit. If it generates a deficit, if there’s a monthly debt, we take that number, we calculate it with a gross up because spousal support is taxable, we determine what she would need net clear in his or her pocket in order to not have a monthly deficit, and that’s what determines the quantum, the amount of spousal support that’s requested, not necessarily that’s going to be ordered, that’s requested and then the term is based on how long will it take for this spouse to become economically independent, to no longer require the spousal support payments. And that’s why I’m saying its very very case based. So, everybody and their sister becomes a lawyer when they hear that somebody’s getting divorced and they compare it to their case, and their friends’ case but it really is based on everyone’s personal situation, how it’s going to be applied.

Marie: okay but what I’m pleased to learn is that if a young woman who is very wealthy or backed by very wealthy family and the family spoils them and they’re thrilled, they got married, but now the marriage doesn’t work out, the family’s pushing them to divorce, I’m glad to hear that if that young man spent 3 or 4 years not pursuing his own career because she wanted to travel and she had the means and all this, it’s good to know that the court will look at a fair balance. 

Sheri: yes because it’s a family contract, you have to see it like that right. It’s an unwritten contract but both parties agreed together that that’s how they were going to live their family life, that they were going to live, that they were going to travel, that he was going to work less because she has the funds to do so. So, you can’t come back later and say well were over now so that’s too bad, figure it out. It’s about respecting that same, if there’s a very traditional marriage and there’s a lot more stay at home dads this days, so let’s say the parties decided chat moms going to work and dads going to stay at home and then the marriage doesn’t work out well dad needs to be compensated for that time and be able to have the opportunity to get things together and get financially independent and start being able to support himself and the family. 

Marie: I have all these questions my god I could do five hours with this woman every day. Maitre are you still there, I don’t want to scare you away.

Sheri: I’m here

Marie: okay I just got an amazing question regarding family law and I don’t know if I should even do this on air or if I should talk to you about it first, anyways let’s go to what we left off here. Marriage contracts – who makes the marriage contract?

Sheri: it could be a lawyer, it could be a notary

Marie: are there standard forms or do you make it up from scratch as you go?

Sheri: no so basically, in Quebec, we don’t have anything that’s called a prenuptial agreement, which is often what you hear thrown around in Hollywood or in the movies. But what we have that is similar is a separate as to property and that would be done in a marriage contract that is basically saying that what’s yours coming into the marriage and the wealth that you accumulate during the marriage save and except for family patrimony, which are certain assets that you cannot renounce to sharing but for example if you own a business, if you start a business during the marriage, or if you had a business before the marriage, that would be protected under a marriage contract. But in order for it to be valid, it has to be notarized

Marie: somebody wants to know if they left 10 million dollars to their child in their will, can they ask that that be clearly separated in a contract, with 52 copies that everybody’s signed? In other words, should they pass away, the son or daughter that inherits that 10 million, the wife or the other spouse, has no right to it.

Sheri: well I mean a will is a will and a will have a probative force of a will unless they can prove that there was coercion or that the person did not sign the document in a free and enlightened way or that they prove that there’s another will that exists. But, if for example somebody wants to make everybody aware, these are my wishes, sign that you saw my will and don’t contest it, I haven’t seen that be done but I don’t see why it couldn’t be done

Marie: what if I know, I’m your husband and I know that your father left you 10 million dollars in his will, I want to divorce, I met a younger woman, the same old same old story that we usually hear. Am I allowed to sue you? Should in that period, your father passed away, I know you’re inheriting 10 million now, can I sue you for a piece of that?

Sheri: an inheritance is excluded from the partition. But just to be clear, a marriage contract is for all assets that are not family patrimony related. You don’t need a marriage contract to protect an inheritance. An inheritance is excluded from partition of the family. And same for gifts. So if there’s a gift, you also don’t have to say I got this gift of $500,000 from my parents and they’re still alive so it’s a gift, that’s protected, but they have to make sure that gift is documented so the other person can’t come forward after and say no that wasn’t a gift that was to both of us. You really have to be careful. If there’s any gift during a marriage and with inheritance, you want your inheritance just for you and not to be intermingled for the family, then it needs to be kept separate. Otherwise, once it morphs into the family finances, its difficult to say no no I still have x amount of my inheritance. But where is it? It’s now melded in with the rest of the family pot. So that’s one thing to be very careful for. And if there’s a gift to one spouse, I always recommend that there be a document that says, if it’s from parents or a family member, this is a gift being given on this date to my son, or my daughter. It’s always better to consult with a lawyer when you have doubts on these questions to make sure you do it right because there’s been a lot of cases where there’s been a big gift, a house for example, and then the couple goes and gets divorced, and if there’s nothing documented that says it was a gift and it wasn’t to the married couple, it was just to your daughter or to your son, then if it goes to court, and there’s no proof of it, you won’t get that deduction back which is something embedded in one of the mechanisms in the law.

Marie: in your marriage contract, can you make an agreement, an arrangement, for example, both of them want careers. The husband would prefer a trad wife. The wife thinks about it and says no problem, you guarantee security, let’s go to a lawyer, let’s put down something, and I’ll give up my career, I would love to devote myself and my career will be mother, homemaker and wife to you and I’ll be there and she goes. Some of these trad wives man, wow, I take my hat off to them but can you ask for some kind of guarantee, I mean since the government doesn’t pay you to stay home and be a wife and mom, can you make that deal with your spouse and say look, you’re going to be working, I’m going to help you in your career, I’m going to keep the home, I’ll be your trad wife but out of every salary you make every week, I want you to kick back x amount in an account for me in my name, can you do that?

Sheri: so, I have seen that before. So basically, you anticipate in advance whether there be a monthly amount, a lump sum amount, you can do gifts in a marriage contract, so I’ve seen it for example, if were married it would be considered a gift inter vivos. But let’s say you were married and you foresee if we have one child, I’m not talking about child support now, I’m talking on a spousal support basis or a compensation basis, that you would say this is the amount that I would be prepared to give you per month, it could be a lump sum, it could be per year. Now the only problematic thing with that and when we do draft these contracts, we make sure that they’re incredibly clear and for one, what the terms mean and two, that no one can after the fact contest it but what if that money doesn’t exist anymore? So that’s always the problematic thing. So it’s one thing when people are in my office and they’re in love and they’re sitting at the table and they’re coming up with these terms that in the event that they were to separate that she would be fine that she would get this lump sum in addition to spousal support that she’s already receiving. What if that money is not there? And that could be a possibility. And then to execute that can be challenging too. It’s always good to have an agreement, and then you can get a judgment rendered to execute it but if the funds aren’t there, it can be problematic too.

Marie: okay, I’m going to go back now to 1970s. her name was Sharon. She passed away unfortunately in an accident. Very well-known Jewish family. Back then in the 70’s, every time Sharon had a baby, her father would deposit $50,000 in her account. He didn’t want her working and he wanted to help the family and the young man she married. I mean I’m not aware if there was a contract. I never saw anything written it didn’t matter. We just knew and sure enough, because we knew her dad and mom, every time she had a baby bam $50,000 and back then, boom, in the account

Sheri: and that was her own parent?

Marie: yup, her dad

Sheri: so that’s something that the husband could have raised to say her family was supporting her also and that would be proof that the family was supporting her during the marriage and that again that they had their lifestyle, part and parcel because of the assistance she received from her parents every time she had a child and that should not be discounted in taking into consideration the family lifestyle and who was contributing what. And you know it’s really funny because when these situations happen, all of a sudden the other party, the family who was contributing to their children’s and grandchildren’s household says oh well I don’t have the money anymore, or I decided this year to stop contributing or I’m not going to support my daughter anymore or my son anymore. That happens all the time. But again, you have to show status quo, lifestyle, and if the status quo was every year you see these deposits coming in, that still has to be taken into account when you’re calculating each scenario and it also have to be considered obviously on a case by case basis. And they’re factors that should definitely be brought up to the court and discussed.

Marie: can you appeal a court decision regarding custody or alimony payments?

Sheri: if there is prima facie, at first glance, an error of fact that was made by the judge, or an error of law. So an error of fact is if for example there was testimony that took place during the trial and the judge then in making his or her decision, wrote down those facts wrong, so basic facts or any facts during the trial, not necessarily based on credibility but if they got the facts wrong, that would be considered an error of fact. Or an error of law is if the law was actually applied in the wrong way. So, for the most part its error of law that would give opening to an appeal process and it depends if it’s a final judgment or if it’s a temporary judgment, will decide whether you need permission to even apply for an appeal or if you have full right to enter an appeal

Marie: what if there’s new evidence, can you go back to your lawyer and say listen, I found out he just won the 35-million-dollar lotto. Our children deserve a bit more financial help now

Sheri: so that wouldn’t be an appeal, that would be considered a modification of circumstance, so now there’s been a change in circumstance that would for example, maybe during the time of the trial and the negotiation, one of the parties that now has all this money had said I can’t afford it, I can’t do it, that would be taken into account to make certain modifications maybe whether it be on spousal support or child support but if there’s final orders, they’re challenging to modify also. Again, it’s also really case by case. If there was fraud, you could ask for revocation. But you would have to prove that

Marie: what about disagreements now with Covid regarding children’s safety. A few things are coming up, I’m seeing some stories now about disagreements especially if there’s girlfriends/boyfriends involved. They’re seeing someone else. Or they’re finding out that they were having an affair. How does somebody listening right now call you and how does it work? How do they proceed? You ask them do you want to leave right away? If they want to get the person out of the house, is that doable?

Sheri: well, again, depends on the circumstances and on the parties but if there’s a problem, if somethings not going well, we always start with a consultation, so that’s the first step. So we do a consultation where we obtain all the information from the client, the history of the file, what’s happening now, what the clients goals are. Then during that time, we would explain what the options are, what the strategies are that we recommend or suggest and then we always try to start with the most amicable route. So, either first reaching out to the other party, if they have another attorney, reaching out to the other attorney, seeing if there’s anything we can do amongst ourselves and again because of Covid, the courts are not working at the same capacity that they were before. Before if there was an incredible, extreme urgency, you could fly in to court, see a judge in chambers – there’s none of that anymore. So, we really have to work with the tools that we have. Of course, if there’s an urgency, it can be treated but we always try and see if we can diffuse the situation and if there’s anything that we can do immediately before having to go into court to see if there’s something that we can fix. If somebody has to leave the home or if there’s different measures that need to be put in place. And sometimes it takes a lawyer being involved to reason with the other party. So for example, let’s say, they haven’t been taking the appropriate safety measures during Covid and you know, we’ve written letters saying this is what the guidelines are and it’s for the children’s best interest that it be respected, whether you agree with them or not, lets focus on the kids and make sure that they’re safe, first and foremost

Marie: speaking about kids, this is a letter I just found, and I will talk to you off air about it, but I can tell you it’s from a listener who has a husband in a CHSLD but parallel to that in the same place she has her daughter who’s very sick with Parkinson’s. She wants to bring her daughter home. they won’t let her. I’m just going to read you a sentence. “My husband was also hospitalized in the same institution. And now unfortunately so is my daughter. I am trying hard to try and bring her home since I was not allowed even to visit her during this period. I want her to be with me so I can care for her and try to protect her from not possibly getting infected by this virus but they refuse to even listen to me. However, they are threatening me that if I move my daughter, I will not be able to place her back later on because she will lose her place. We worked hard in this life. We helped and contributed to our society. But our society has forgotten us. We continue to offer our help and support and we are present and we need to be present. We want our voice to be heard. We the seniors, we paid our taxes, we voted, we elected politicians, we contributed as volunteers in different organizations and institutions, we made donations, even now that we live on fixed incomes. We know our responsibilities. Now we need to know our rights. We want our voice to be heard. We need to see action. We need to make sure that our people who need help are treated as humans and not thrown away like garbage. Seniors and the disabled are still part of this society. And we don’t have to remind everyone that we still exist”. I’d like to forward it to you. She’d like to know since you do family law, she just wants to bring her daughter home. I can only imagine the anxiety this woman lives under, she has her husband and her daughter, she wants to bring her daughter home. They’re not paying any attention to her and they’re ignoring her. I’ve had this question asked of me, Maitre, quite a few times. What lawyer can they call to get help in these situations? Can they call you?

Sheri: ya they can certainly call us and we can try and help lead them in the right direction. There’s obviously a lot to unpack there. But speaking with a lawyer could certainly be the first route. It’s a very very difficult situation that this particular person finds themselves in and its challenging, it’s a challenging time because there’s a balance between respecting health guidelines and making sure that everybody is comfortable in that particular situation its really critical to know all the details and the circumstances of that situation. But it’s really really hard. And there’s people in hospitals who are alone and I think that what’s most important is to make sure that everyone’s getting the appropriate care and if the care is covered at home, that if on an emotional level, if what’s better for that person, then I would almost recommend that and then try and deal with the other part simultaneously once this person is home but it would be really important obviously to know all the details about it

Marie: you know you keep answering like that, you’re going to get that credit card for heaven eh. I’m telling you maam you’re adding the brownie points because I was afraid to ask you this on-air live in case you dissed it, but you didn’t diss it

Sheri: no, listen it’s very hard, people are really living very trying times and sometimes there isn’t an easy answer or an easy solution to what has to be done but I think what’s most important and especially the people that are most vulnerable is to make sure that they’re comfortable and that they’re supported because even that alone, you know being lonely is a huge contributing factor to the fight and struggle through these challenging times

Marie: Maitre, I just had another question being handed to me here. They were living together and they had a child, the boyfriend passed away and never abated the will. The kids name was never mentioned. Can the child contest the will? There are no other children. He did the will three months after the child was born 

Sheri: again, in a case like that, we would really have to see the will and see what are the terms of the will, in what context was the will drafted, was it a real will, did he draft it, is the father on the birth certificate or not, there’s a lot of factors that come into play. When there’s no will at all, there’s an automatic amount that goes to the heirs and an automatic amount that goes to the wife but in that particular situation, it would depend on all the factors to determine what the scenario really is. Because you do have the right to draft your will as you see fit but if the child is a minor, you can still request support from an “héritage” also. So also, it’s a very case by case, whether the child is financially dependent, or not, was it notarized, was it a holographic will. There are different conditions of validity to each will 

Marie: always a pleasure, I can’t wait for next Monday!