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Marie: Good morning Montreal! I guess I come alive when I come to work. Mes amours, on est capable. You had a great weekend, everybody stayed safe? We are trying to keep those numbers down. We are still at the eight or nine hundreds but we’ve plateaued. I want to thank everyone out there for doing their best. Some can do more, some can do less, but as long as we are all pulling our weight man, whatever that weight is.
Mes amours, premièrement bienvenue au 105.1. Je suis Marie Griffifth, Jessica Maheu à la mise en onde, et je suis en train juste de remercier tout le monde, je vais le faire en français aussi. Les chiffres ont baissé un petit peu, on est comme un plateau, au moins la ligne pointe pas vers en haut. D’autre trucs, il y a d’autres détails aussi, mais je voulais dire un grand grand merci.
It’s a hot spot in Ontario right now, Ontario broke a thousand, and their line is pointing up so écoute, follow our leaders directives. Mr. Legault, on est fier de vous, sir, you are on top of this, nobody is perfect but we are learning as we go, but our politicians are on top of it, they are taking care of us. So, écoute, on va être des bons enfants, we are going to be good children, we will be at our best during this. Sometimes though, even with COVID, you don’t have time to concentrate on anything except certain difficult moments in your private life. You know we talk with lawyers, Sheri Spunt, every Monday. I have questions… by the way if you want to add to the questions, I got your questions this morning and I fired them off so we will be looking at them one at a time. Should you have more questions, please send them to info@mikefm.ca.
Today, here on my paper it says: Snow or rain. Either way, thay are both four letters words eh? Snow or rain… if there was snow or flurries this morning, right now it’s changed and we are going to have a high of nine today, more rain throughout the day and rain this evening. Thankfully, winds are only at 20 km, tomorrow it will be +1, tomorrow a mix of sun and cloud so get yourself out of the dull drums! Common, I know it’s a blah day out there but doesn’t matter, keep the sun shining in your heart. I know I sound tacky don’t I? Okay let’s just welcome our guest. Good day maître!
Sheri: Hello! Hi.
Marie: I made you laugh at least.
Sheri: Of course, gotta keep it light, it’s the only way to do it.
Marie: Aw man, speaking of light, there is none out there today.
Sheri: I know, you gotta find it from within today.
Marie: All righty mam, would you like to tackle the first thing on our agenda, if you can read it out.
Sheri: Today lets chat … When a spouse prepares months or even a year before the divorce, can they transfer assets to others and set up the business for bankruptcy without anyone picking up on it?
Sheri: So, sometimes people do prepare in advance.
Marie: Well, because the person that asked the question, was hit with reality and it just about killed her man. She’s working hard through it but never saw it coming and apparently the husband had been working on it for a year.
Sheri: So listen, you can do a lot of things and you can hide money but at the end of the day there are provisions in the law, in the Civil Code of Quebec, that applies in Quebec that protects people from these type of things. So for example, if all the sudden, and this happens all the time, everything is going okay, the parties are living a lifestyle, whether they are living beyond their means, which is I would say most people, and everything is fine but all the sudden they are going to file for divorce and business is doing poorly, they are going to file for bankruptcy, things aren’t well, look there’s nothing in the accounts. So, people move things around but that being said, in the process you are responsible for providing full financial disclosure reciprocally, so both parties need to give full financial disclosure. More often than not, there is 1 spouse who is more in control of the assets and the money, because that’s what we do with couples, we divide the jurisdictions and the tasks because not everyone can do everything so we divide them up. So usually one person is in the know, and one is in the absolute dark. That being said, let’s say we go to get divorced and one spouse is shocked that there is nothing in the joint account, and where is the investment portfolio, where is this, where is that. Then we request all the financial disclosure from let’s say the previous 3 years before the date of separation to see what was there, what existed, and how much was it worth. Now if we see there was a huge decline, and we would call that a dilapidation of assets, there is a recours, there is a recourse available to the other spouse for that. So then we would basically ask that that’s the amount and those are the numbers that are subject to being partitioned, not the new number that looks all little and dwindley and sad, because everything is lost. So the recourse is there, it’s available, same goes let’s say if someone has a gambling habit that becomes discovered and there is a dilapidation of assets one year to proceeding the divorce, then there is a recourse for that as well. Or just for any frivolous spending, spending that wasn’t for the purposes or betterment of the family, that it was really frivolous spending to only benefit one spouse.
Marie: Alright, because in this case, you know, whether it’s the man or the woman, when one of them has decided that they don’t want this marriage anymore, whether there is kids or not, you wanna believe that they can sit with the spouse and announce it calmly, but stuff like that doesn’t exist someone told me unless you are both on the same page. One will always be hurt, depressed or mad.
Sheri: Ya, that’s the hard thing, it’s hard for people. You know how you said at the beginning of your show that everyone has to act like good children? Ya well if only everybody did that and acted like good children, courteous and followed the rules, then it would be really easy. And t’s not. Whether it subconscious or not, there is so much anger, there is so much hurt, so much trauma that comes with a separation that often people are not prepared to act like good children, right?
Marie: Quick question mam. The wife comes to see you, you check it out and you discover that he transferred in the last year his savings, close to two million dollars to his parents.
Sheri: Sorry, how much money did you say?
Marie: Nearly two million.
Sheri: two million, nice.
Marie: That’s why she came to see you, haha.
Marie: And the answer was, should it be discovered, oh it’s money I owed to my parents and I’m paying it back.
Sheri: So again, it would have to be shown that there is a very precise paper trail that shows that there was a loan, and if there was a loan document.
Marie: And if there wasn’t, the judge I assume says you just made it up, I can’t accept it?
Sheri: Yes, exactly. Everyone is accountable so people think they are creative and doing all these very smart things quote on quote, and they are not because everything will come out in the end. There is punitive to that as well, any bad faith can be used against you. Your credibility will be shot out the door, how will anybody believe what you are saying anymore when you tried to do something so dishonest with assets that are either part of the matrimonial regime or the family patrimony. And that’s a great thing, just a note for your listeners: loans, gifts… create legal documents for these things. Because if a gift is given just to you and not to your spouse, and not to the family, it should be in a gift document, if that’s the intention of the gift. If there is a loan that has to be paid back by both spouses, make sure it says that the loan says that it needs to be paid back by both. Because then in the context of a divorce, one can say well it was just a loan to your daughter, I had nothing to do with that loan and never even agreed to it or spoke to you about it, what do you want money from me for? Anything that you are doing, if it’s a gift or a loan, put it in writing. If there is in amount that is paid as a down payment on the house that was a gift or a loan or what have you or you want it to be separated differently at the time of a divorce so that that person shouldn’t benefit from that large down payment that was gifted by your great aunts, put it in the documents, put it in the deed. We go through life obviously presuming good faith of everybody and that everything is going to be okay but do everything by the book so that there is no surprises for anybody. Even if things are going to work out fine let everyone be on the same page and understand where that gift or loan came from.
Marie: Maître I have to tell you, as I got older in life, I think I got a little wiser anyway, one of the things I discovered was that lawyers are worth their weight and gold. When we always think why do I have to pay this lawyer, lawyers you are worth your weight and gold man.
Sheri: Thank you, I appreciate that. But you know what, it’s the same thing when you are dealing with fields outside like commercial real estate or anything like that. We hire lawyers, I’m a lawyer but not a commercial real estate lawyer. It’s the same thing, you have to get people who do to do. Like if someone is a specialist in a certain area, ya it’s going to cost money but I always tell my clients that you need to invest money to come out ahead. So it might cost you money upfront to fight for the child support you aren’t getting or for the spousal support you aren’t getting, but you have to spend that money to then have that result. So it’s the same thing for us, if we need patent lawyers or anything like that, I don’t do patent, ya I can try to figure it out myself, ya I have a law degree, but the results won’t be the same if an expert was doing it.
Marie: Well said. Alright, we are twenty minutes passed the hour, we are going to take a quick break. Ladies and gentlemen, we have family lawyer and expert Maître Sheri Spunt.
Si vous avez des questions, any questions, send them to info@mikefm.com. When we come back : can a wife be pursued for her ex’s debts ? We will find out, stay with us.
Marie: Moving right along, and we will be at the bottom of the hour in about seven or eight minutes, that will take us to about 10:30, our guest every Monday is our expert, maître Sheri Spunt, and this is a question that is not on the agenda, it just came in so I’m just throwing it out there. You separate, the wife keeps getting harassed for debts that the husband owed. As a lawyer, when you represent the couple, how do you check to see if there are debts somewhere that he hasn’t told you about where he has also listed the wife as a guarantor or something.
Sheri: Well if she was listed as a guarantor, then she would’ve had to sign for it. It’s rare that we represent both parties because usually the parties have diverging interests, which means that they are not on the same page. So it’s very rare that we have those type of joint mandates. If we are representing madame and she finds out that there is someone chasing her for certain debts, it depends on what kind of debts that they are, the nature of them. Because you can have a personal claim against just the husband and if it looks like you are doing transfers to fraud your creditors, for example transfers of properties to shelter assets from creditors, then they can also sue in their claim. So for example if the couple is doing it together, sometimes people put their house under only one spouse’s name if the other house has a company for example and then try to shelter it and say oh well it has nothing to do with my wife. But if at the root of it they see that this is something that has been hidden by the couple in order to evade having to pay certain debts or whatever, then they can come after the other spouse. The other spouse isn’t free and clear just because their name isn’t on it and that they didn’t sign it. It really looks to the intention of the debtor, the one owing the money.. what did they do? Did they do something intentionally to make it seem like they don’t have the funds to cover any debts they may be?
Marie: By the way maître, there is a young lady who is going to be calling you. Her parents are very wealthy and she found out he owes a lot of money and anyway, I guess every case is unique but I’m going to ask the question anyway. When something like that happens, can they go beyond you and even to the in-laws if they smell money there?
Sheri: Well we can send subpoenas so let’s say we sense that there are certain funds that were transferred to their own parents or so on, we can then send out subpoenas to the in-law’s bank accounts, any investments that they might have. A subpoena is basically a court order to provide a certain document for a certain date in court. They can try to contest it, that they don’t want to acquiesce the documents being requested, but it’s an order. So that’s one of the ways for us to find out where that money is and then if we start seeing the paper trail between one account and another, that’s how we know that there is a problem and that the hypothesis is correct, that the money is going from one place to another.
Marie: Okay, if there is no transfer of money but she wants to sue the family, the family is very wealthy. Can you take something like psychological harm and suffering from depression to sue his family for damages?
Sheri: In Quebec, punitive damages in terms of family are not really there. It’s not really something that is common, you know things are taken into account of course. If there is money that has been misappropriated then that will come off of the other spouses share for example. If they have done something that should be sanctioned, the best way that that can be done is with an unequal partition of assets, either of the family patrimony or of the matrimonial regime.
Marie: Okay, next one. So he plans this, and he lined up his ducks. It’s looking good. The wife though settles, she accepts the amount. The lawyer checks everything out and says ya it’s a good amount, we were talking about that last week, just take it and let’s close this file. So she does, the wife settles on the alimony and the child care and a few months down the line she hears that the young young girlfriend that he left you for is living high on the hog, he opened a business for her, bought her a condo, apparently he is financing everything, um.. there was no record of money like that when you did your settlement. What does the law allow for to pursue this?
Sheri: Well, it all depends. It’s a case by case basis. Like we talked about before on other shows is that the only thing that merits re-opening a settlement or modifying a judgment is if there was a change of circumstance… and that is a high threshold. There needs to be a change of circumstance or information that was completely unknown. So let’s say (I’m coming up with a very frivolous example) that one of the spouses was keeping or hanging onto all sorts of vintage cars that were actually bought during the marriage and the other spouse had no idea and finds out that there were 10 vehicles that were bought during the marriage. Well in those scenario, you can go back to court and say that there were all these other funds that I had no idea about and I am entitled to half the value of that which comes out to about $150,000, for example. But you will really have to prove that there was no way for you to know before, that you didn’t know that the money was kept from you or whatever and the fact that they settled for spousal support let’s say the spousal support determination form (we have these standard forms in Quebec that tell us how much you should be claiming for spousal support and it’s grossed up because spousal support is taxable and deductible). So let’s say one of the spouses should actually be receiving four thousand dollars a month, but they acquiesced to settle on only receiving twenty five hundred dollars a month, then they can maybe take the motion to court, an application for modification of child support because their need is actually for four thousand dollars a month, but they are only getting twenty five hundred dollars a month, and they need fifteen hundred dollars more a month and they see that there wasn’t full transparency, it wasn’t clear and enlightened consent because they see that there are all these additional assets worth three hundred thousand dollars, for example.
Marie: Okay, you know what, I listen to you and I just admire you. I assume judges do the same. Man, you are so passionate, how do you remember all these things also?
Sheri: Thank you Marie. It’s years of experience and you know we work in the field but we still come up with new things every day and scenarios that we’ve never seen before, which is what keeps it interesting for us. But it’s based on the same principles and every client we see is in a different situation from the next and our goal is to help one client at a time.
Marie: Ya, next question mam. She does very well, she’s a professional. Two-three hundred dollars a year. She married a young man. He’s not a professional, didn’t matter though. Long story short, she won’t put up with that and is going to give him his walking papers. He wants of course alimony. There are no children. She wants him to get a job. How does that work? Can you go to the court and say to the judge listen, your honour, he’s a lazy bum and let him get a job and make up the difference. Shouldn’t he be forced to go work?
Sheri: Yes, but just to speak to this because there is a misconception in Quebec, because we are under the Divorce act in Quebec and all through the country, the cheated part. That actually has zero bearing on anything. We are a no fault regime so the fact that the spouse cheated doesn’t lead to punitive damages. You aren’t entitled to partition some of the assets because there was cheating. You could’ve cheated with fourteen, fifteen people, fifty people, doesn’t matter. The only thing that matters is now what are we dealing with, what is the breakdown, what are we are looking at. So you can argue that I’m at work earning an income for my family and this guy is going around and sleeping with people while I’m at work and taking care of the family. So obviously in terms of coloring of the file, it certainly doesn’t look great, but from a practical standpoint, what does that mean and what can the courts impose? There are two scenarios. Let’s say the couple had an agreement that the husband would stay home and take care of the household and take care of the children, and do the groceries, and do the cooking and cleaning, that was the family’s agreement and that the wife would work. Let’s say that was the agreement and the husband didn’t follow through with all that and didn’t agree to all that but it was happening anyways, it could be considered an implicit consent that she was okay with that, even though that wasn’t what they initially had agreed to. So the husband could argue later that this was our family plan, she was fine with it and I need spousal support now. Ok fine, so maybe he does need spousal support now. But we have to determine two things: 1. How much? (and that is based on this formulaire 3, it’s a fixation de pension alimentaire pour époux). It determines exactly how much money that spouse would need to not be in a monthly deficit, so everything from groceries to pharmacy to magazines to tobacco to Christmas presents to yearly vacations goes in there, with whatever income that person earns. If it’s nothing then it’s all essentially deficit and that determines the amount. 2. The term. How old is he? How long is it going to take this person to become financially independent? Does he have an education?
Marie: I can tell you, he’s thirty six and he’s a high school graduate.
Sheri: Okay, so he’s a high school graduate, he’s thirty six, so the plus is there is that at least he’s young and has his whole life ahead of him. You know what, he can go get a job anywhere from Starbucks to the gas station to going back to school. Going back to school obviously takes time but if it means that he is going to be able to support the rest of his family, perhaps it’s worth it. So really someone who is young has the potential to remake their life and then the courts are going to judge how long it’s going to take this person to support themselves. They might say two years, three years, but the other thing they factor in is what was the length of the marriage? If it was a one year marriage, we’re not talking about anything substantial. If it was a fifteen year marriage, then we are talking about something more substantial in terms of the term, but they would still ask the same question: how long will it take this person not to have a monthly deficit in order to be gainfully employed?
Marie: They’ve been married nine years.
Sheri: Ya so the person is going to have to start rolling up their sleeves and find a job. You don’t have to take a top dollar job right off the bat but start getting a job, start making money and contribute to your expenses and to your kid’s expenses and go from there. You know Rome wasn’t built in a day but you have to get on the job market, especially when they are young and there is no reason that’s holding them back, then why not.
Marie: You know, every time you talk about you can go out and cheat with 32 people and it doesn’t matter to the court, but it was refreshing to hear you say today that that information might be in the file and can color the file.
Sheri: 100%
Marie: It does say something about your character, doesn’t it?
Sheri: Ya, it does. In general, and you know like what type of priorities you have as a parent. Let’s say the person is running out and having affairs and missing Sunday night dinner or Friday night dinner, like what are your priorities and are you a family parent or are you not a family parent?
Marie: Alright mam, we are going to go on another quick break. When we come back somebody wanted to know what is the procedure if a couple wants to move their divorce and there are kids involved. So stay tuned everybody, you are listening to Mike FM 105.1
Marie: Alright ladies and gentlemen, we are back with our guest and twenty minutes before the hour, that will take us to eleven o’clock, in our Mayo Clinic legal advice, medical advice, maître are you still there?
Sheri: I’m here!
Marie: You wanna tackle that one?
Sheri: Yes, for sure. So we’ve done some of those trials, so there are relocations. Sometimes it happens after the divorce has already been rendered, after the Consent has already been signed, one of the parents decide they want to relocate. So there are a couples ways that this can go. One is that it’s amicable, which means the other parents agrees that other parent can move. Great. What happens there is that there’s a quick application that’s done to request a relocation, both parties sign a consent agreement that deals with everything. It has to deal with what’s the child support going to be now that they won’t be living in Quebec, what’s the access, what are the modalities of access, who is paying for travel for the other parent to see the child, how many times a year are they seeing the child, what does the summer schedule look like, what do the daily phone calls look like, is it facetime? Is it phone calls? How often and at what time are they? So we put all of that in place and that’s in the best case scenario where the parties agree, it’s signed by both parties, we recommend that both parties have independent legal advice. That way, if one of the parties says I agree, I always counsel them: take the consent to another lawyer, have them review the consent and make sure you are comfortable with it. Then the other lawyer may or may not sign the consent if they’ve been retained or not. That’s best case scenario. Scenario number two is you already either have a consent done and the divorce is already rendered or you are in the process of getting divorced but one of the requests that one of the parents have is to actually move. For example, let’s say someone is from the States and never lived here and wants to go back to the States now that the marriage has failed, that’s one of their requests. So what do we do in those scenarios? Well it’s a very difficult decision for a judge to make because they have to weigh many factors. Les facteurs de rattachement is what they are called. They basically go through this whole list to determine what is in the child’s best interest. Is it to stay with mom or dad or if there’s two dads or two moms which dad or which mom. One of the things that we do to provide a tool to the judge is to do a psychosocial expertise, where we hire a psychologist to evaluate the family system. So sometimes in files there is a parental capacity assessment and then they will determine what is in the best interest of the child, where do they think the child will thrive the most, and what is the decision and residential schedule that’s in their best interest. And then they will make recommendations. Now I’ll tell you, I had a child a few years ago already where my client was requesting to move, the other parent was here in Montreal and wanted the parent to stay, we had an expertise done by someone that has been used by the courts hundreds and hundreds of times, and the recommendation that he made was that the child should stay here with the other parent. Our position was that they move with my client, the mother. The expert came to court and testified and in examination and cross-examination, I brought light to the court that the report was incredibly biased, that it was a biased report, that there were so many factors that weren’t considered and that it was not in the child’s best interest to stay in Montreal and that the child should in fact move and we won the trial. The judge ordered that the child move with my client to the states. So that being said, an expertise, even if it’s a joint expertise and this one was a joint expertise, is one tool that the judge can use, but they are not bound to it. They get to decide was is the weight they are going to give to that expertise, la valeur probante. Is it flawed, is there holes? Is it biased, is it not biased? Did they factor in everything? So that’s an example where we provided the tools to the court to help but of course you don’t know what the outcome of the report is going to be until it’s finished. Even though it seemed like it was devastating for my client, we managed to contourner le rapport pour démontrer à la cour que c’est vraiment pas dans le meilleur intérêt de l’enfant, et que l’expert n’avais pas pris en compte tous les décisions nécessaires pour cet enfant.
Marie: Vous savez maître, ça ne me surprend pas de tout que vous avez gagné et que vous avez changé l’idée de la cour.
Sheri: Merci, mais c’est pas évident. Il faut travailler avec tous les détails du dossier pour connaitre le dossier et vraiment savoir à la fin de la journée, c’est quoi dans le meilleur intérêt de l’enfant. Ce n’est pas juste une question de pension alimentaire pour payer plus ou moins, ou quelque chose de qui gagne ou qui perd, ce n’est pas ça. C’est l’enfant à la fin de la journée, il faut assurer que tous les décisions de l’enfant doivent être prises en compte.
Marie: Okay, my audience is going wild today. Here’s another question. Somebody that had a criminal record for marijuana and hashish and the visiting rights with the children because the wife 4 years ago made a huge deal of it and made it out to be the worst criminal in the world. He would visit his children supervised, god forbid he rolls a joint in front of them. Now that it’s legal, what can he do? Can he come and see you? He’s still being punished. Can he review the visiting rights? Because it’s not illegal anymore.
Sheri: The things is, is that to what I would say in a case like that, and we did that before it was legal, is that that shouldn’t bar a parent from having access. We kinda say what you do on your free time is yours, I’m not acquiescing to hard drugs and all these things, but what we put in a lot of applications and things like that is if you have the kids, there is no consumption of alcohol or of any other legal or illegal substances during the visit or prior to. So it’s an undertaking, and if it’s a consent agreement for example, it’s a court order and you 100% have the obligation to follow it. If it’s a consent, it’s the same thing, so that’s one of the things I would put in place. If it’s a huge deal and there was actually no access, then I would definitely revisit it and request that there be access and there could still be undertakings. Whether it’s legal or not, you shouldn’t be stoned out of your mind when you are watching your kids either, that’s for sure. What you do on your free time is up to you and I would argue that if you were to have two glasses of wine at night versus smoking marijuana, someone could argue that they are not incredibly different. Well no they are not incredibly different, just one seems to still be more socially acceptable but the whole thing is that if you can undertake not to consume while your children are with you, that’s obviously better for everybody, right?
Marie: What about cigarette smoking?
Sheri: Same thing. People should not be smoking cigarettes in their homes with their children. We have tons now of scientific evidence and we know what second hand smoke does, we know the outcome so that can be something also that a parent undertakes also not to smoke cigarettes in the presence of their children. They smoke outside, that they don’t smoke in the house or in the car. If it’s a decision that makes sense and is in the best interest of the child, then it should absolutely be put into place.
Marie: Alright, two more questions, I think I can fit them in there. Boy, this Monday eh?
Alright, going back to when you divide assets, what if you find out after you’ve accepted the agreement, your lawyer says accept it it’s a great agreement and so on. What if you find out there was a property overseas in his name that is quite valuable that was not on the list when you divided up assets? How do you go back to that?
Sheri: So it would be the same as what we talked about in the first half of the show is that if you can prove that there is an asset that you knew nothing about-
Marie: Like the villa in Greece by the ocean, you know?
Sheri: Ya like, can we go there, do you have one? Hahah
Marie: I’ll be your helper!
Sheri: Take me there now Marie! Start the private jet!
Sheri: So the whole thing is that it’s the same scenario. If we can prove that there was no way of knowing that that property existed, that it was hidden, that it was intentionally hidden and it wasn’t disclosed, then we ask for a modification in consequence. We say that there is this asset that exists and it’s worth 4 million dollars and there is a debt of x on it and he or she is entitled to whatever the proceeds are of that property, divided by two.
Marie: Especially the children.
Sheri: Ya, for sure.
Marie: Okay, the second question now is a grandparent question. Now, we’ve touched a bit on it but this one is pretty clear. Your daughter marries and she has 1 child. Then gets cancer, passes away. The child is 3 years old. Dad remarries. The child now has a step mother but she’s been spending a lot of time with the grandparents obviously. They get along with the son-in-law. The son-in-law gets cancer.
Sheri: Ugh.
Marie: I know, I know. Doesn’t look very –
Sheri: Very depressing for a Monday.
Marie: No, but it’s a question I have to ask mam. Anyway he’s fighting it now, I know he’s in treatment. So let’s just say, god forbid, he passes too, both her biological parents now have died. Can the grandparents who are blood to this child, can they go and just take this child and bring her up? Can the stepmother insist to keep the kid?
Sheri: Well, the stepmother can try and fight it. But the father, before, like right now in real time, let’s say he is ill now, this is the time that if there isn’t a will, a will should be drafted and very very meticulous instructions should be made to determine what the custody is or who they want to be the legal guardian of these children. Do they want it to be his wife’s parents?
Marie: Actually maître, here is something tricky. He had another child with his second wife. So the grandparents have no problem, the siblings can keep seeing each other, I mean, they are half-sisters. But really? You know what I mean, it’s a tough one.
Sheri: The father really has to make the decision of what he thinks is in his children’s best interest. A lot of judges in general whether its half siblings, adopted siblings or whatever do not generally recommend living at the sibling’s because that’s hard right? Because that’s kind of one of the only constants that exists in the child’s life is their sibling. However, if the father thinks it’s in the children’s best interest maybe to be separated and to have the grandparents look after the first batch of children that was with the first wife and the other… it also depends on the age of the grandparents. But again, it really depends on what is in the children’s best interest and it’s up to the father to decide in his will who he wants to be the legal guardian of his children. Now, if he decides he wants them to be the legal guardian and then he passes and then the stepmother discovers that the grandparents aren’t well or maybe one of them is an alcoholic or I don’t know what, they could always try and petition the court to say that it’s not in the children’s best interest to be with the grandparents. But then they are essentially contesting part of the will, right?
Marie: Ya no, that’s not the situation here.
Sheri: But the best advice I can tell anybody is make your will crystal clear. Clear, clear, clear as day. Who is taking care of the kids physically? Who is taking care of the child’s financials? Who is deciding what school the child goes to? Who is taking over parental authority? If you outline everything incredibly clear, you will save your entire family from litigation and fighting and arguments and making your wishes to be clear. Also, what happens god forbid if the grandparents god forbid get into their own accident and they are not able to take care of the child? You need to have a backup and then a backup and then a backup. So nobody is pulling their hairs out and asking what would his intention be if the grandparents were no longer able to do it. So you really have to think of every scenario. I remember myself going into my notary appointment to prepare my will and my mandat en cas d’incapacité et tout le reste, quand j’ai sorti de là j’étais tellement déprimée parce que tout le monde que je connaissais jamais avais décédé dans la même demi-heure de temps. Because if your parents die then what happens and if your sister dies, then what happens? Basically we mourned everybody in the consultation of one hour and c’était vraiment difficile après ça de retourner à la notaire pour vraiment indiquer tous les instructions parce que ce sont des conversations qui sont vraiment difficile à avoir. But you still have to have those conversations even though they are hard and you do have to think about every scenario.
Marie: Okay, and here we are going to end on a bit of a very weird question.
Sheri: No pick me up?
Marie: No, very weird question mam. It’s okay I’ll tell you a funny sex joke at the end.
So husband gets ill. The wife is a good person and everything but she just can’t deal with it and she doesn’t want to end up being a nurse. It scares her and she just can’t deal with it. His sickness is serious and anyway, she wants out. How much will the court frown on her? She’s even embarrassed to go to a lawyer. How do you go to a lawyer and say my husband is sick but I don’t want to stick around and take care of him.
Sheri: I’ve seen it.
Marie: What??
Sheri: Listen, things change and it could already be in that situation that they’ve already grown apart prior to the person becoming ill. But again, it’s a no fault divorce so you know… it is what it is.
Marie: Can she still ask for alimony?
Sheri: Well if they have the ability to support then yes.
Marie: Well he’s doing well.
Sheri: So, fine. So again, dying or not dying, sick or not sick, if she’s not working then she might be entitled to spousal support. One, was she financially dependent on him throughout the marriage?
Marie: Yes.
Sheri: Two, was she impoverished and he was enriched because of the marriage and three, does he have the capacity to pay? So those factors still have to be asked and still have to pass that test and if that’s the case, regardless of the fact that the person is ill or sick, she’s either going to get the money now or the kids are going to get the money now or get the money after.
Marie: Okay, so that was the situation because somebody said well, why don’t you just hang around and if he passes away, you are going to inherit. She’s not, she just can’t do it, she just wants out and if he passes away, and she filed for divorce while he’s sick, if I was the husband I would not leave her anything in the will. He’s allowed, right?
Sheri: Ya, of course, and then leave the rest to the children. As long as it’s not against the family patrimony rules, right? It has to be consistent with the rules of family patrimony and the matrimonial regime, he can’t exclude her in his will out of those things but any other assets and things yes. But really the outcome of the divorce on the financial level is not going to be any different just because she’s leaving him while he’s ill.
Marie: Oh boy, it must be hard to be a judge and not show emotions or your personal opinions when you hear things like that, eh?
Sheri: Ya, some judges are very poker faced and some wear their heart on their sleeves. But when they wear their heart on their sleeve, then you know you have to work harder because if they are not on your team, roll up your sleeves because you have to start attacking it pretty head on.
Marie: And I would think that a judge that wears his heart on his sleeve would be a little more open to appeals, yes?
Sheri: Well it depends, the only time we can appeal in Quebec is if we can prove that there was an error in fact or an error of law that was applied by the judge, you know? But sometimes it shows a little bit of open-mindedness of the judge and sometimes our job is to convince the judge otherwise. I’ve had judges walk into the courtroom who were totally convinced from just reading some of the material and not even all of it of the outcome of the decision they are going to render. As soon as you feel that they are already decided like that, then again you got to really work it to try convince them otherwise and differently from what their préjugés is, or whatever they are already thinking.
Marie: Why do I have this feeling that you’ve changed many judges minds mam, haha.
Sheri: Ya, we gotta work hard, we work hard, that’s for sure.
Marie: How is your little boy? How is school going?
Sheri: Good, he is good thank goodness. We’ve had some cases in the little school so they have JK, Pre-K and kindergarten separated, so that school had cases of my son in Grade 1. His school, the big one, so far so good, knock on wood. So he’s still going to school, business as usual. So I just said be grateful for every day that you are there. He wears his mask all day, he knows how prudent and careful he has to be. We went to the park on the weekend and the park was packed so they didn’t play on the jungle gym and they are okay with it because it’s the way of life right now for them.
Marie: Oh yea, kids are resilient, man, are you kidding me.
Sheri: Ya like imagine telling kids before the pandemic like we are at the park but you can’t play on that, they would have freaked out. Now it’s like ya I’m not going there, too many people there, they are trained already.
Marie: Ya, right on. What’s his name?
Sheri: Henry
Marie: Henry, I love it! Actually I knew a lawyer called Henri.
Sheri: It’s nice because it works in both languages, at school they always call him Henri.
Marie: Maître alright, can you give your number please?
Sheri: yes, (438) – 383-5458.
Marie: Alright, thank you for being available to Mike FM listeners, just a fabulous show today man, just the questions, everybody went wild. We are going to have to save the rest of the questions. So have a great day and we will be speaking again!
Sheri: Perfect, sounds good. Have a great week, take care everyone, bye!
