Guest Post: Spousal Support: Heads She Wins, Tails He Loses

I have been a fan of Ontario lawyer/writer KAREN SELICK (karenselick.com) for many years and appreciate her “tell-it-like-it-is” approach to some of Canada’s absurd laws. Karen wrote the piece below on spousal support seventeen years ago in the November, 1997 issue of “Canadian Lawyer”, when the Spousal Support Advisory Guidelines were nothing more than a law professor’s dream. Enjoy!

“The law of spousal support has become so repugnant to me lately that I often ponder giving up the practice of family law altogether.  It’s almost impossible to feel good about what you’re doing.  If you act for wives, you have to inform them about the kinds of claims they can make—including claims which I consider to be unjust or downright ridiculous.  If you act for husbands, you have to be prepared to be on the losing side most of the time. 

It seems that no matter what course a couple’s married life took, the wife can always find some reason to claim spousal support.   If she  worked outside the home and supported her husband while he became a brain surgeon, her claim is for “compensatory support.”  If she did just the opposite, sitting around eating bonbons while the brain surgeon supported her, her claim is for  “developing a pattern of economic dependency.”

I’ve even seen cases where the wife has claimed both grounds in the same action, oblivious to the possibility that the bonbon-eating lifestyle she enjoyed in the later years of marriage has already more than compensated her for whatever work she did in the early years, or to the idea that if she was such a great provider in the early years, there was nothing stopping her from maintaining her lucrative career throughout the marriage. 

In fact, the only common thread running through most support orders is this: males pay.

I remember reading once about the peculiar notion held by some eastern philosophy that if you rescue a person from impending death, you become responsible for him for the rest of his life.  Canadian courts seem to apply a similar prescript to support cases.  Once a man has kindly provided a woman with a higher standard of living than she could reasonably have hoped to achieve on her own, he’s stuck with providing it for years to come—maybe even the rest of her life–regardless of how she has behaved toward him or the reason they separated. 

The Divorce Act enshrines this principle.  It tells judges to alleviate any economic disadvantage arising from either “the marriage or its breakdown.”   That “or” is a powerful word.  Suppose the marriage gave the wife an advantage rather than a disadvantage: a more affluent, leisured lifestyle than she would have earned on her own. Then, obviously, the termination of the marriage constitutes a disadvantage. 

If a man genuinely caused his wife some disadvantage during the marriage, he pays for that reason.  But if instead he bestowed an advantage upon her, he pays for having stopped.  Heads she wins, tails he loses.

Another objectionable thread woven through both the legislation and the case law is the notion that if a woman can’t support herself after separation, the courts should make her ex-husband support her rather than see her go on welfare.  Maybe the legislators and judges who came up with this idea thought it would placate opponents of welfare. If so, they’ve misunderstood the nature of the objection to welfare. 

Welfare is objectionable because it is coercive and one-sided.  It’s not like charity, which is voluntary.  It’s not like a contract, from which both parties benefit.  No, welfare simply forces some people to hand over money to others whose predicament they didn’t cause and who have provided no value in exchange. 

The same could frequently be said about spousal support.  Take, for instance, the recent Ontario case, B. v. B.   The trial judge accepted the husband’s evidence that this was a marriage “made in Hell.”  The wife, whose IQ was only 68, didn’t work outside the home, but also didn’t do housework.  She watched a lot of television, while the husband assumed responsibility for cooking and cleaning, in addition to being the sole breadwinner.  They argued a lot, and she was occasionally violent towards him. 

The trial judge awarded her only time-limited support, saying “…this husband started to pay for this marriage about three months after it occurred, and then he paid for the next 15 years, and I am not prepared to make him pay for the rest of his life.” 

On appeal, the Divisional Court removed the time limit on the wife’s support, stating explicitly that the burden of the wife’s support should fall on family members, not on taxpayers.  Why?  What principle of justice or morality warrants making Mr. B. pay, as opposed to some unrelated taxpayer? Neither of them caused the wife’s need for support. Neither of them ever received any benefit from her existence.

In fact, we’ve thrown out just about every principle there ever was—from the notion of contract to the notion of fault—that made matrimonial law rational, comprehensible, predictable, controllable or just.  While some people may feel that no-fault support has been a liberating event, it’s clear that for others, it has meant nothing but grief and involuntary servitude. 

It’s about time we re-examined the unfashionable idea of marital conduct to see whether justice can ever again form part of matrimonial law.”

Lawdiva aka Georgialee Lang

Why I Support Canada’s Proposed New Law on Prostitution

BarristerOn Tuesday I will make submissions to the House of Commons Justice Committee on Canada’s new prostitution laws, which passed second reading several weeks ago, and will surely become the law of the land, perhaps with some amendments.

As many of you know, I was counsel for the Evangelical Fellowship of Canada in Attorney General v. Bedford and one of the few voices in the Supreme Court of Canada that urged that prostitution not be legalized.

Of course, we all know that the law criminalizing activities related to prostitution was deemed unconstitutional by the Supreme Court of Canada last December, thus opening the door for our federal government to create new law, taking into account the necessity for it to pass constitutional muster.

The new law does just that. It decriminalizes prostitution for the women and girls that trade in sexual services, but makes it illegal to purchase sex in Canada, thus targeting customers (johns) and those who seek to exploit (pimps) the mostly female, often aboriginal victims of the sex trade. It permits the selling of sexual services so long as it is not conducted in the vicinity of children 18 or under. It also forbids the advertisement of sexual services.

The basis of my objections to the legalization of prostitution is founded on one of Canada’s underlying principles, that respect for the human dignity of each person is foundational to our society, a dignity whose inherent value was confirmed by our highest court in the Rodriguez case (euthanasia) and finds expression in the 1949 United Nations Protocol on the trafficking of humans, a convention signed by Canada which provides:

“Prostitution and the accompanying evil of the traffic in persons for the purpose of prostitution are incompatible with the dignity and worth of a person and endanger the welfare of the individual, the family and the community.”

The view that prostitution subordinates and victimizes women and girls is not particularly popular, but I have seen it first hand when I lived on Granville Street in the early 1970’s and in Vancouver’s west end in the 80’s. The image of a “happy hooker” is a Madison Avenue gimmick that has no basis in reality.

When my husband, Doug, ran the Vancouver Vice Squad, I saw again the squalor and exploitation of young, addicted woman, both tragic and poignant.

To those who say that legalization is the only answer, one only has to look at those countries who have based their social policy on sex work as a legitimate job with benefits paid and tax collected.

Perhaps the best example that the harms inherent in prostitution are not alleviated by legalization is the State of Victoria in Australia where prostitution was legalized in the 1990’s.

It was said that legalizing sex work would assist in eradicating the criminal element, guard against unregulated expansion, and combat violence against prostitutes.

How wrong they were…violence was not eliminated, street prostitution was not curtailed as they naively expected, working conditions were no safer than before, prostitution escalated and turning sex work into a legitimate business opportunity for women and girls did not dignify or professionalize prostitutes.

Instead there occurred massive expansion, particularly in the illegal sector with unlicensed brothels. Women were not empowered to become self- sufficient entrepreneurs, as they could not compete with the businessmen who took over the brothel business. Street prostitution was not eliminated as street workers had a host of social problems including addictions, mental illness, and an inability to be hired by legal brothels because of their lifestyles.

Canada’s new prostitution bill addresses many of the safety concerns identified by the Supreme Court of Canada, but more than that, the tenor of the law does not accede to the notion that prostitution is acceptable and legitimate in a free and democratic society.

In my view, prostitution not only harms the women and girls involved but also undermines the social fabric of Canada. It is too easy not to try to provide a way out for our mothers, sisters and aunts who are trapped in this degrading practice. It is a basic issue of human rights.

Lawdiva aka Georgialee Lang

Transgendered Widow Sues for Life Insurance Proceeds

GEO#1It’s over ninety degrees in Texas but it’s going to get a lot hotter. A court battle is heating up over the estate of Thomas Araguz in Wharton, Texas. Araguz, age 30, was a fire captain in the Wharton Fire Department before he lost his life in a blaze on a local chicken farm on July 4, 2010.

Araguz’s life insurance policy of $500,000 should be distributed to his wife of two years, Nikki, and his two children from a previous marriage, however, Araguz’s parents and ex-wife are asking a court to block the distribution and anul Mr. Araguz’s marriage to Nikki Araguz, because she was born male and had sexual reassignment surgery. If that occurs, the children will receive the entire life insurance policy proceeds, presumably to be managed by the children’s sole custodial parent, Araguz’s ex-wife.

The family is relying on a case decided in Texas in 1999 where the court held that same-sex partners cannot marry and the State of Texas does not recognize gender reassignment.

Nikki was born Justin Perdue in 1975 and claims that her husband knew about her gender reassignment and supported her during reconstructive surgery. The problem is that earlier on, Mr Araguz’ ex-wife was challenging Mr. Araguz for custody of their two children and to present the best case in court, both Thomas and Nikki Araguz swore under oath that Mr. Araguz knew nothing about her previous life as a man.

Now Nikki says that they both lied to the court in order to receive a more favourable result in the custody action. Public opinion in Texas is mixed but most people believe the money should go to Nikki. I believe a fair result is the division of the proceeds equally between the two children and Mr. Araguz’ widow.

UPDATE:

In 2011 the Texas Court ruled in favour of the Araguz family and against Nikki Araguz. However, in April 2014 the appeal court reversed the decision and ordered a new trial with a stipulation that Ms. Araguz cannot be prejudiced by her change in gender.

Lawdiva aka Georgialee Lang

Hetero Couple Divorce in Order to Remarry as Same-Sex Spouses

GEO CASUALAre you as confused as I am between sexual orientation and gender? Are you clear on what the difference is between transvestites, transsexuals, transgendered, or cross-dressers? Me too, I can’t figure it all out, but perhaps the story of Andrew and Kate Ratcliffe will help us out.

Andrew and Helen married when he was 22 and she was 17. Although nobody thought the marriage would survive a year, it flourished, producing three children and 28 years of married bliss ( or a reasonable facsimile of same!) However, at year twenty Andrew confessed to Helen that he wanted to be a woman. She, of course, was shocked and angry, as any spouse would be.

Andrew reported that even in his teen’s he yearned to wear women’s clothing, but upon his mother discovering female underwear in his bedroom he repressed those feelings and threw himself headlong into the macho male world of motorbikes and cars. As a young married couple in Britain, Andrew and Helen immersed themselves in the “goth” scene, where Andrew could legitimately paint his face with black eyeliner and lipstick. Once their children arrived they abandoned this pursuit and he got a crew cut, along with multiple tattoos and body piercings.

Life carried on, but along the way, Andrew ran into some old friends who he discovered were cross-dressers and his new journey began.

After he told Helen, but not their children, Andrew and Helen spent their date nights as two women on the town. Six years later he began to explore a sex-change operation, but was advised he needed to live openly as a woman for two years. It was at this point that Andrew changed his name to Kate and let their teenage children know of his situation and plans.

The new couple experienced a set-back when Andrew/Kate learned that he would have to divorce Helen before he could finalize his transition. Helen balked, couldn’t cope and they separated, but only for a time.

They reunited and Andrew/Kate had her surgery, paid for by Britain’s National Health Service. Their happy ending concluded with a white wedding, each of them wearing wedding gowns, as Kate was escorted to her bride, Helen, accompanied by her father.

Kate, still called “dad” by her three adult children, remarked that if she had known how easy it would be, she would have made the change sooner.

So, the question is “Do cross-dressers generally feel they are in the wrong body?” Apparently not. The research says that most men who cross-dress simply like to dress up in women’s clothing because it makes them feel good and right with the world. They are not gay, but rather straight men who have an intense desire to put on makeup and wear jewelry.

Social scientists don’t know how many men cross-dress because many men only disclose their behavior to their wives. In earlier times, cross-dressers were called transvestites. Cross-dressers can be like Andrew/Kate, men or women who are born male or female but feel they have the wrong body. These persons are called transsexuals and usually take hormonal treatments and have surgery to transition from their biological gender to their psychological and emotional gender. Researchers often say that it is not really a “transition” because their brains are born female, while their anatomy says they are male.

But transsexuals are not necessarily transgendered, according to most authorities on the subject. Transgendered persons are those who have any form of gender identity issue that causes them to be criticized, discriminated against, or even shunned because of their appearance, mannerisms, or voice.

Gender dysphoria, as it is referred to by psychologists and psychiatrists, was once considered a mental illness, but modern research and studies tell us that the basis for it is much more complex with biological, hormonal and neurological factors.

Thankfully we are becoming better educated and hopefully, more tolerant of people who are different from us.

Lawdiva aka Georgialee Lang

The Case for Shared Parenting

There is a groundswell of activity and energy swirling throughout North America as lawmakers take a closer look at shared parenting, also known as joint physical custody.

Despite the best efforts of dinosaur lawyers and jaded feminists to disparage a better model for parenting, shared parenting is a child-centered response to the institutionalized model of parenting that has plagued families far too long.

Based on twentieth century cultural traditions of stay-at-home moms and working dads, the maternal preference was shored up by untested psychological theories about mothers and children that unwittingly led to a template of a “visiting” parent, usually relegated to every second weekend for a total of four nights per month.

The primary caregiver model became the default position without consideration of the quality of parenting, the psychological functioning of each parent, or the history and nature of the parent/child relationship.

Good parents were lumped together with dysfunctional parents because judges relied on precedent, a straight-jacket that we now know has hurt generations of children and needlessly disempowered parents.

Later most jurisdictions added a week night visit for the non-custodial parent. Who are we kidding by using gender neutral language? It’s “Dads” that are marginalized by these entrenched legal and judicial practices.

But the tide is slowly turning as the public clamour for a more civilized way to determine custody, and social science researchers provide empirical evidence that compels a reconsideration of a parenting regime that is far past its due date.

Dr. Joan Kelly, well-known psychologist and parenting researcher, confirms the literature demonstrates numerous benefits to children when their living arrangements enable supportive and loving fathers to be actively involved in their children’s lives on a weekly and regular basis, including overnights. The outcomes for children include better psychological and behavioral adjustment, and enhanced academic performance.

She also notes that children and adolescents who have lived in a shared parenting arrangement are generally satisfied, feel loved, have less feelings of loss, and do not frame their lives through the lens of parental divorce, compared with those who have been placed in the sole custody of their mothers.

With the endorsement of 110 international research scholars, Dr. Richard Warshak recently published “Social Science and Parenting Plans for Young Children: A Consensus Report” in Psychology, Public Policy and Law 2014 Vol. 20 #1- p.46-67 which concludes that shared parenting should be the norm for children of all ages, including very young children. The consensus was that 50/50 parenting is also indicated where the logistics of the parents’ schedules are compatible with that arrangement.

Of course, it is universally accepted that deficient, negligent or abusive parents, and those that may have mental illness or substance abuse problems will rarely be candidates for shared parenting.

Public sentiment on shared parenting can be illustrated by Massachusetts’ 2004 non-binding election ballot where 85% of voters, numbering 530,000 people, agreed that children should live with both parents following divorce. In another survey of 375 people called for jury duty, 67% of them favoured shared residential parenting. (Braver et al 2011)

Presently seven States promote shared parenting including Arizona, Alaska, Oklahoma, Iowa, Kansas, Arkansas, and Wisconsin. A Florida bill for alimony reform and shared parenting was expected to pass, but was crushed by a veto from Florida’s governor. The proposed amendment sought to increase the minimum amount of parenting time from 25% to 35%.

Connecticut established a Task Force to study the issue of shared parenting, with a report expected this month. In Maryland, legislators initiated a Commission on Child Custody Decision Making with a report due in late 2014.

Canada’s Bill C-560 on shared parenting is scheduled for second reading in the House of Commons in mid-March 2014. In previous iterations of this bill there has been non-partisan support from the Liberals, Conservatives and the Green Party, the latter two include shared parenting in their platforms.

For those who ignore the burgeoning research and say the jury is still out, or those who continue to rely on the tired refrain that shared parenting is impossible with the rancour that accompanies divorce, a new day is dawning.

It can’t come too quickly for Canada’s children.

Lawdiva aka Georgialee Lang

Same-Sex Marriage is Sweeping America

Barrister While Canada was way ahead of most countries in legalizing same-sex marriage, the United States languished, but is now quickly catching up.

You may remember several years ago when actor and certifiable “hunk” Brad Pitt said that he and Angelina Jolie would not marry until same-sex couples in America had the right to do so. The most recent news from the Pitt/Jolie camp is that their wedding ceremony in Hawaii is set for December 2013, followed by an extravagant winter reception at their French manor.

Not entirely surprising, since same-sex marriage is legally recognized in numerous jurisdictions within the United States and is recognized by the federal government for such purposes as taxation and immigration.

As of October 2013, fourteen states (California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New York, Rhode Island, Vermont, and Washington), the District of Columbia, several counties in New Mexico, and seven Native American tribal jurisdictions – covering 33% of the US population – issue marriage licenses for same-sex couples.

Oregon recognizes same-sex marriages performed in other states and the issue is being litigated in a New Mexico Supreme Court case, where officials are seeking a ruling of statewide applicability.

Meanwhile, six states now recognize “domestic partnerships” including Oregon, Wisconsin, Hawaii, Colorado, Nevada and Illinois.

A new day has dawned and best wishes go to the engaged couple!

Lawdiva aka Georgialee Lang

Ten-Year-Old B.C. Boy Champions Case for Gender Identity Syndrome

GEO CASUALA ten-year-old boy from Comox British Columbia, who calls himself Harriette, has gone public with his crusade to reform the law that prevents him from acquiring a new birth certificate to reflect his preferred gender.

Harriette’s birth name is Declan Forrest Cunningham, but he recently announced to his Grade 5 teacher and classmates that he is transgendered and lives as a girl, with the full support of his family, who decry the Canadian bureaucracy that refuse to issue him new identification.

Harriette could be a poster child for a debate that is brewing over the treatment of children who are confused about their gender.

Picture a little boy in a pink tutu, fairy wings and ballet pumps. Now imagine that boy being treated with hormone-blocking drugs in a clinic established to diagnose and treat children who believe they were born in the wrong body.

Gender Identity Syndrome, first identified by the American Psychiatric Association in the 1990’s, has spawned a new industry, one where children as young as five, are receiving puberty suppressing injections, despite a paucity of research with respect to the side effects or medical dangers that may accompany these treatments.

At Tavistock Clinic in the United Kingdom over 165 children are being treated by the clinic’s team of social workers and child therapists. Seven of these children are under the age of five, despite Tavistock’s own research that indicates that up to 80% of these children will change their minds about living in the wrong body, once they reach adolescence.

Nonetheless, proponents of hormone therapy believe the treatment is worthwhile to prevent the mental distress these children will experience as their bodies mature. The treatment is also said to be beneficial to those children who will eventually have gender-changing surgery. Others say the treatment reduces suicide and self-harm rates.

Contrary opinions abound. Professor Russell Viner, a hormone specialist at London’s Institute of Child Health believes the impact on a child’s developing bones and brain has not been ascertained and warns of the potential danger. He notes the drugs reduce a patient’s fertility level.

Dr. Kenneth Zucker, a world authority on gender issues, with a Toronto clinic, is opposed to hormonal treatments for children. He says:

“Suppose you saw a black kid that wanted to be white. Wouldn’t you try to understand what was happening…You certainly wouldn’t recommend skin-bleaching.”

He says that gender confusion is an issue of nurture, not nature and believes dysfunctional families or cultural backgrounds play an important role. Other experts say that children confused about their gender may have experienced sexual abuse or have psychiatric ailments and need psychotherapy, not drugs, and not sexual reassignment surgery.

While it is reported that most adults who complete sex-change surgery are happy with their new lives, for others the surgery is anything but positive.

After allegations were made in 2009, psychiatrist Dr. Trudy Kennedy of the Monash Gender Dysphoria Clinic in Melbourne, Australia was forced to close her clinic for a time, while she dealt with numerous complaints and three lawsuits alleging negligence and faulty diagnosis.

Certainly the medical and ethical issues of prescribing intrusive treatments on vulnerable children requires more intense scrutiny than it has received to date.

While the Cunningham family believe their young son’s passion to find justice for himself is laudable, they ignore the potentially negative consequences of his public campaign. He is a child in his formative years who deserves to develop and mature away from the prying eyes of the media. If I was cynical I would say that it is his parents that seek the spotlight…another reality TV show?

Lawdiva aka Georgialee Lang