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Law Matters - Jeff Zilkowsky

Train creeps

I’d guess that most people in B.C. have traveled on the SkyTrain in the Lower Mainland.

I love it.  I can get downtown from my home in New Westminster faster than driving and it gives me time to catch up on overdue texts and emails with friends.   

But, there is also something a little lawless about it, isn’t there?  

If you have taken the train in the wee hours of the night, you’ll know what I mean… 

It’s not uncommon to see someone drinking, vomiting, or causing a scene.    And, for that reason, I am very thankful and appreciative for the Transit Police.   They truly have a hard job, keeping the train safe for the rest of us.  

But, sometimes, Transit Police are not always there to help…  So, what happens then?  What should you do?  What can you do?  

Here’s my story… 

 

On October 31 this last year, two buddies came to visit me for the Halloween weekend.  It was a Saturday and we decided to go for a jog on the seawall in Vancouver.   So, we packed up our jogging gear and boarded the SkyTrain. 

Once on the train, we noticed a fellow in his 20s talking on his cell phone, sitting near where we were standing.  Everyone within 25 feet could hear this fellow’s every word.   He was describing his prior night, telling his friend (and everyone else) about how much alcohol he drank and about his most recent sexual conquest.   It was wildly inappropriately (and I won’t reproduce what he said here).   

A few moments later, a young woman stepped onto the train and stood near my friends and I.   Without skipping a beat, the fellow approached and unleashed his own brand of ‘courtship’.  She informed him that she had a boyfriend, but he persisted nonetheless.   It was uncomfortable (to the say the least) for everyone within close proximity. 

My friends and I looked at each other.  We had to something, right?  But, what could we do?  Engaging with the fellow would have surely invited conflict.  

So, seeing a break in the conversation between the young fellow and woman, we began a conversation with the woman.  With her attention focused on us, the young fellow returned to his seat and left the train shortly thereafter.  And, when exiting the train, the young woman thanked us.   As well, a collective sigh of relief was felt on the train.   Things could have got been a lot different - it could have been violent for myself and my friends. But, even more important, things could have been violent for the young woman!

Imagine that she accepted a date with him.  And, that she started a relationship with him.  Or, imagine that she had a child with him.   It isn’t that far-fetched: love can be blind, after all…    

In my family law practice, I’ve seen a lot of people (often women) victimized in abusive relationships.  It is awful to see.  Some women physically tremble with fear.

In such cases, there is plenty of legal advice to give.  Among other things, I’ll generally recommend journaling/documenting the abuse, contacting support groups and emergency services (such as women’s shelters), and creating a safety plan.  In addition, the violence should be reported to police. 

Here’s why…

When I am hired by someone who is being abused, one of the first things I’ll immediately consider is getting a protection order against the abuser.   

To explain, a protection order is a court order that prevents any direct or indirect contact (i.e. messages being passed through third parties) between the abuser and the victim.  For more information, I discussed protection orders at length in a prior column:  Afraid of a family member?

A helpful fact in helping my client get a protection order is the presence of prior police files relating to the abuse. 

Think about it: just like sick people are expected to go to a doctor for medical treatment, victims of abuse are often expected (often unfairly) to go to police for help.   Also, if the victim has a child, it is even MORE important that the victim remove himself/herself (and the child) from that abusive situation (and call police).  

Now, with that said, if a victim of abuse has not reported the abuse to police, it will not necessarily be fatal to the victim’s application for a protection order.  But, the presence of prior reportings often helps the victim’s cause.     

Please know, too, that it’s absolutely appreciated that reporting abuse to police can be incredibly difficult.   But, please remember this: if you happen to be in an abusive relationship, you do not need to suffer in silence.    There are people who want to help you.   

    

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought. 





Grandparents: no grandkids for you!

People love grandkids.

And, why not? It’s exciting, right?

You get to play with and spoil a child WITHOUT all the early mornings or dirty diapers. Good deal, right?

Sadly, though, it’s not such a joyful time for everyone...

Sometimes, grandparents are denied any time with their grandkids. And, sometimes, grandparents want to assume all responsibility of the child because their own children (i.e. the parents of the grandkid) are not fit parents, themselves.

And, when this happens, grandparents sometimes go to court.

These cases can get ugly; they can be long, expensive, time-consuming, and emotional…

In cases in which grandparents want more parenting time, the courts will give an enormous amount of respect and deference to the wishes of the custodial parents (i.e. either the biological or adoptive parents).

Here’s an example: Branconnier v. Branconnier, 2006 BCSC 2020.

In this case, the grandparents wanted to spend extra time with their grandchildren during school holidays, and spoiled the children (by giving gifts), all despite (and in the face of) the wishes of the mother. For additional context, the grandparents’ son / children’s father was dead.

In denying the grandparents’ application for extra time, the judge made some important comments:

  1. The wishes of a parent must be respected and must not be interfered with without good evidence;
  2. Grandparents need to accommodate themselves to a parent’s decision regarding the amount and type of access; and
  3. When a judge does order access to a grandparent, that access is (typically) quiet limited, sometimes only one day a month.

 

Another case you may want to read is Chapman v. Chapman, [1993] B.C.J. No. 316 (BCSC). This case goes through the general rules that are used when determining access relating to a grandparent.

In these types of cases (i.e. when grandparents want to spend more time with their grandchild), it is often best that the parents and grandparents work cooperatively. Grandparents will often get more time this way (vs. going to court). And, in the end, a judge will not typically give more (or much) time to a grandparent if it will only increase conflict between the parties.

Now, how about those other types of cases? How about the cases in which grandparents want to assume all responsibilities and care of the grandchild? Well, they can get ugly, too…

In certain circumstances, a judge will give a grandparent full control and care of the grandchild. But, it’s not an easy case to make.

When it happens, the Court needs to be satisfied that the best interests of the child are served if the grandparent were to assume all care and control.

And, there typically needs to be some strong evidence that the parents are not able to effectively parent on their own. There will often need to be strong evidence of:

  1. drug or alcohol use;
  2. abuse / neglect;
  3. unstable lifestyle;
  4. abandonment of children; or
  5. poor parenting skills.

Again, there is strong presumption in favour of parents, either natural or adoptive, keeping care and control of their children.

Admittedly, this column doesn’t paint the ‘rosiest’ picture for grandparents. But, grandparents shouldn’t fret...

In the end, judges will make orders that are in the best interests of the child. And, a child is no one’s property, no two cases are exactly the same, and there are plenty of cases in which grandparents have ‘won big’.

And now you know.

 

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.



Lying about rape, violence, drug dealing?

If you haven’t been living under a rock, you’ve heard the allegations against Jian Ghomeshi and Bill Cosby. 

And, in light of those accusations (and the overwhelming assumption that they are both guilty of ALL such accusations), it got me thinking:  we need to be VERY CAREFUL to not simply presume that someone is guilty.  

Now, you may be thinking, “How can this guy think that either Jian or Bill is innocent?”  

To be clear, I am not saying that, at all.

I am simply saying that we shouldn’t be so quick to presume guilt in light of ANY accusation. 

The truth is that not ALL accusations are accurate and SOME people lie.   

Think about it… 

Would you ever tell a lie to get something that you wanted?  How about something that was really important to you, like your freedom, your job, or your children.  Would you lie in those circumstances?  

Maybe you wouldn’t.  And, I hope that you wouldn’t.  But, fact is: some people do. 

And, sometimes, people even lie to a judge. 

In various areas of the law, including in family law, people sometimes fabricate accusations against an opposing party, typically for the benefit of their file (or their life).    

It’s (relatively) rare; but, it happens…

Sadly, these accusations often revolve around ‘who gets to live with the kids.’  

As I wrote in a prior column, emotions typically run the highest in family law files.

Imagine this: a separated mother and father are fighting over who has more parenting time with little Johnny.   Now, imagine that one parent has a criminal charge against them, which could be sexual assault, assault, or drug dealing/using.  The one parent is likely going to benefit (in their own family law case) if the other parent is convicted of a crime, right?  

Think about it: if the other parent is found guilty of being abusive or a drug abuser, then that would probably hurt that parent’s argument that he/she is such a great parent and that the child would be in ‘good hands’ with them, right?  

In these circumstances, an opposing party may stand to gain when the other party loses.  

Some people seemingly think, “If I can convince a judge that my former spouse is a violent person or is a drug/alcohol abuser, I may receive a more favorable outcome in my family law case.” 

It is an awful reality.  But, it happens.  And, it doesn’t work in the end.

Fortunately, when accusations occur in family court, judges and lawyers are keen to explore the issue and determine whether or not there is truth to the accusation.  People who work in family law recognize that it’s an incredibly emotional area of law and that there is often a fine line between love and hate.

So, in the end, here are my suggestions:

  1. If you hear an accusation against someone, don’t blindly believe it. Some accusations can ruin innocent lives.  And, remember: there are always at least two sides to every story.
  2. If an accusation is made against you, get some legal advice/assistance. The consequences of having a false accusation ‘stick’ could be devastating.  

And now you know.  

 

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought. 





Separating from partner? Big dollars!

Separating from your partner can be painful.

Maybe you still love your former partner and you wish you were still together.

Or, MAYBE you’re really happy that you no longer have to wake up with that person; but, you’re miserable because you have to deal with the money issues of the separation...

One of the big financial issues of a separation is dealing with spousal support: either paying it or receiving it.

For your sake, I hope that you never have to learn about spousal support first-hand. But, if you do or if you know someone who is going through a separation, here’s some information…

 

So, what is spousal support?

Put simply, spousal support is a payment from one spouse to another. It is primarily designed to:

  1. Make sure that neither partner will face financial hardship as a result of the separation; and
  2. Ensure that each partner becomes financially independent after the separation.

You should know, too, that after your relationship is over, you don’t automatically pay or receive spousal support. It is nowhere near that easy.

The first hurdle to getting spousal support is that you must have been married or, if not officially married, been living in a marriage-like relationship for at least two years.

If you’ve cleared this first hurdle, then you must consider whether or not you’re even entitled to spousal support. I’ll explain….

There are three ways in which a partner can be entitled to spousal support:

  1. Contractual Support;
  2. Compensatory Grounds; and
  3. Non-Compensatory Grounds.

The above-noted terms have legal definitions. So, I’ll explain each one below.

Under the “contractual grounds”, a support payment (to pay or receive) is created out an agreement that you may have made with your partner. If you haven’t agreed to anything, then consider the next basis for entitlement.

Under the “compensatory grounds”, a spouse is entitled to spousal support if they agreed (even implicitly) to not maximize their earning potential and instead, for instance, raise children and/or accept a lower paying job. At the same time, then, the other spouse is able to leave the home and pursue their employment potential.

Under the “non-compensatory grounds”, a spouse is entitled to spousal support if one spouse (truly) needs the money and there is a big difference between the incomes of the two spouses. In this case, the court will say, “There is a social obligation that the disadvantaged spouse be supported by the other spouse who is earning more money.”

If there is entitlement (under any of these above-noted grounds), then the court may require one spouse to pay spousal support to the other.

The amount of money payable in support will typically be dependent on the incomes of both spouses and the length of the marriage. And, for your information, the longer the marriage and the larger the difference in incomes between the parties, the more money one spouse will need to pay to the spouse.

And, please also remember that spousal support can be payable by either the husband or the wife: it does not discriminate based on sex.

And, sadly, as with most columns, I can only give you the tip of the iceberg.

 

If you have any questions, I recommend either contacting a lawyer or reviewing the case law on the following website, providing free access to court decisions: CanLii.

 

And now you know.

 

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.



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About the Author

Jeff Zilkowsky is a lawyer practicing at MacLean Law in the Lower Mainland and in Kelowna, and focuses his practice on family law and litigation.  

In his column, Jeff provides information about current legal events or points of interest or concern relating to the law. 

The information contained in Jeff’s column should not be used or relied upon as legal advice.

Comments are always appreciated and encouraged, so don’t hesitate to email Jeff at [email protected]

Visit Jeff’s website at www.jeffzilkowsky.com or visit the website of MacLean Law.




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The views expressed are strictly those of the author and not necessarily those of Castanet. Castanet presents its columns "as is" and does not warrant the contents.


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