The 50% divorce myth

Everyone “knows” half of all American marriages end in divorce, and that was indeed the case in the 1970s and 1980s.  But it isn’t true today:

Despite hand-wringing about the institution of marriage, marriages in this country are stronger today than they have been in a long time. The divorce rate peaked in the 1970s and early 1980s and has been declining for the three decades since.

About 70 percent of marriages that began in the 1990s reached their 15th anniversary (excluding those in which a spouse died), up from about 65 percent of those that began in the 1970s and 1980s. Those who married in the 2000s are so far divorcing at even lower rates. If current trends continue, nearly two-thirds of marriages will never involve a divorce, according to data from Justin Wolfers, a University of Michigan economist (who also contributes to The Upshot).

There are many reasons for the drop in divorce, including later marriages, birth control and the rise of so-called love marriages. These same forces have helped reduce the divorce rate in parts of Europe, too. Much of the trend has to do with changing gender roles — whom the feminist revolution helped and whom it left behind.

“Two-thirds of divorces are initiated by women,” said William Doherty, a marriage therapist and professor of family social science at University of Minnesota, “so when you’re talking about changes in divorce rates, in many ways you’re talking about changes in women’s expectations.”

[…]

The delay in marriage is part of the story, allowing people more time to understand what they want in a partner and to find one. The median age for marriage in 1890 was 26 for men and 22 for women. By the 1950s, it had dropped to 23 for men and 20 for women. In 2004, it climbed to 27 for men and 26 for women.

Perhaps surprisingly, more permissive attitudes may also play a role. The fact that most people live together before marrying means that more ill-fated relationships end in breakups instead of divorce. And the growing acceptance of single-parent families has reduced the number of shotgun marriages, which were never the most stable of unions, notes Stephanie Coontz, a professor at Evergreen State College and author of “Marriage, a History: How Love Conquered Marriage.”

The child support clawback

In several Canadian provinces (including Nova Scotia) child support payments are deducted from social assistance.  A group of single mothers in British Columbia has launched a court challenge against this policy:

The case will argue that the deduction of child support payments from income and disability assistance violates single parent’s right to equality under the Canadian Charter of Rights an Freedoms.

Milne said the law is unconstitutional because it conflicts with the purposes of the child support system, denies the children of parents on income or disability assistance the right to benefit from their child support, and has a disproportionately negative impact on parents with disabilities and single mothers.

“Other kinds of families are better able to earn other kinds of income and they are allowed to keep some of it before it is deducted from their income or disability assistance,” said Viveca Ellis of the Single Mothers’ Alliance of B.C. “Meanwhile, these vulnerable children have an opportunity for better lives through their child support, but they are not allowed to benefit from it and their parents experience additional financial consequences.”

I’m not aware of any court rulings on this issue, so I’ll be keeping an eye on this one. (There is a PEI Human Rights Panel decision which found that the clawback was not discriminatory, but that wasn’t a Charter case.)

His condition was updated to “alive”

1990: man mysteriously disappears without a trace.

2000: his grieving wife reluctantly has him declared legally dead, and begins collecting his pension.

2010: man reappears, claiming he had amnesia. Now he has commenced legal action to recover the pension:

…four years ago — 20 years after he disappeared — he came home. Bright said it wasn’t for a reunion.

“All he talked about was money,” she said.

Court documents show her husband filed a petition to prove he’s Winston Bright and to win back his pension, CBS 2’s Weijia Jiang reported.

He was not only alive but well, and teaching in San Diego with a new identity — “Kwame Seku.”

In his court filing, the “missing” man said, “I was never returned home but rather found myself in California with no recollection of how I got there or who I was.”

Seku said he suffered from amnesia, but his son A.J. said he isn’t buying it.

“You don’t just walk down the black and catch amnesia,” he said.

I’m not sure how this will play out, but by revealing he was alive all along, Mr. Bright/Seku has opened himself up to a potential claim for child support arrears:

Leslie said if Seku proves he is her husband, she’s taking him to divorce court. She said they’re still legally married and he owes her a lot — money to cover years of child support, for starters.

The end of “custody” and “access”

A survey of Canadian family lawyers shows most opposed to a presumption that children should spend close to equal time with their divorced or separated parents, but overwhelming support for changing the outdated, confrontational terms currently used to describe the “winners” and “losers” in cases involving children:

Canadian family law lawyers and judges reported that an average of 46 per cent of their cases involve some form of equal parenting time (“joint physical custody,” “shared custody” or “shared residence”), in which the children spend at least 40 per cent of their time with each parent. Further, an average of 68 per cent of their cases involve some form of shared parenting (“joint legal custody” or “joint guardianship”). Thus, this survey suggests that roughly two thirds of cases involve some form of what may be broadly viewed as shared parenting.

The respondents also reported a substantial increase in the use of roughly equal parenting time over the past five years (31 per cent said that this had increased substantially, 51 per cent increased somewhat, 17 per cent said it stayed about the same and only one per cent report reported a decrease). Equal time cases, however, are still a minority of shared parenting cases. In only 13 per cent of their cases was there a provision for limited contact with one parent, and respondents report that there is no provision for contact with a parent in only three per cent of their cases.

A clear majority of the respondents (77 per cent) did not support the enactment of a presumption of equal parenting time, as proposed in Bill C-560. However, a substantial majority of the respondents (78 per cent) support the amendment of the Divorce Act to use language other than “custody” and “access,” such as through the of phraseology as “parental responsibility,” “parenting time” or other similar concepts. Of note, the majority of respondents (55 per cent) were from BC or Alberta, where the provincial legislation has already been reformed to include presumptions of mutual parental guardianship and to use the concepts of “parental responsibilities” and “parenting time” as the basis for making post-separation parenting arrangements.

Many of the respondents explained the need to change the language of “custody” and “access” because those terms are “adversarial” and “proprietary.” One respondent commented that “custody … implies that the custodial parent has possession, or control, or ownership rights to the children, while the access parent has something substantially less.” Another observed that they “are extremely dated terms and concepts.”

However, many respondents expressed concern that enacting legislation to a presumption of equal parenting time could cause harm to children. One wrote: “some children do not function well in this type of schedule, and it would lead to substantially more litigation, in my opinion, if we had to start with that presumption.” Another stated: “presumptions have no place in the formulation of the best interests of the child … this is fact-dependent and should be based on a holistic view and the unique factual circumstances implicit with the determination.”

A Halifax couple’s adoption nightmare

After months of work and thousands of dollars spent, Adam and Pam Webber – a couple of good friends of mine – have had their worst dears confirmed:

A Halifax couple says their dreams of adopting a child have been crushed by Russian politics.

Pam and Adam Webber were in the final stages of a year-long adoption process. They thought they’d be flying to Russia this fall to bring home a toddler, but then they heard Canadian adoptions of Russian children were in limbo.

“It’s just heart wrenching and really hard to take,” said Pam.

International adoption was the end of the line for her. She and her husband tried fertility treatment and adopting from within the province with no luck.

“We wanted a family. We wanted a young family. We wanted a very involved family. I was the little girl who asked Santa for her own baby,” she said.

Adam Webber said they chose Russia because they heard the process is quicker.

“Quick being a year or two, as opposed to three or more years like a lot of places,” he said.

[…]

A Russian law banning adoptions by U.S. citizens was rushed through parliament in December and sped to President Vladimir Putin’s desk in less than 10 days in retaliation over a U.S. law calling for sanctions on Russians identified as human-rights violators.

Then, earlier this month, the country stopped adoptions to Sweden because it allows same-sex marriages.

But there was no word on Canada, so the Webbers prepared a toddler’s room and Pam quit her job so she could fly to Russia at a moment’s notice this fall.

Still, they braced for bad news. On Tuesday the Webber’s fears were confirmed by their Ontario adoption agency.

“It’s been a long couple of weeks trying to get answers and officially we found out today that Canada-Russia adoptions are suspended,” she said.

An increasingly nationalist Russia has been shutting the door on international adoptions for quite some time – first against the United States (ostensibly because of some admittedly heartbreaking cases in which adopted children were hurt or killed, but mainly as revenge) and now against other Western countries.  And this is what awaits them in their own country:

Russian authorities have ordered the arrest of two nurses they said severely beat three young children at an orphanage during a night of drinking. According to the authorities, they beat the children to get them to stop crying. One of the victims, a 7-month-old, was wrapped in a sheet and stuffed in a plastic container to muffle the cries.

The other children, a 3-year-old boy and a 10-month-old girl, were hospitalized with multiple injuries, Russia’s Investigative Committee said Thursday. The 7-month-old child was initially in a coma. Their current conditions were not immediately known.

[…]

…critics say little has been done to improve conditions at Russian orphanages or to promote adoptions domestically. More than 600,000 Russian children live outside the custody of their biological parents, many in foster homes. But about 130,000, many with physical and mental health problems, live in orphanages, where they are sometimes neglected and abused.

It was not clear how many children lived at the orphanage in the Khabarovsk region, or whether there had been a history of abuse there.

Investigators said the beatings began after several children awoke during the night and started crying. The children were not found until the next morning, when other workers arrived. Only then were they were taken to the hospital.

More at adoptanewattitude.com.

The divorced parent’s worst nightmare

A Toronto woman had sole custody of her two children, but she allowed her ex-husband to use them in a trip to Europe.  A few weeks later, she received a phone call from them – from Afghanistan:

Zaiba Zaiba has full custody of seven-year-old Mateen and four-year-old Hosna and approved for their father to take them both on a trip to Europe in June.

‘I don’t understand why the government cannot bring my children back.’
—Zaiba Zaiba, Toronto mother
Several weeks later, she unexpectedly received a call from a number in the Middle East and realized her children’s fate.

“When I saw the number I was shocked because I don’t get (many) calls from Afghanistan,” she said. “When I said ‘hello’ and recognized his voice I was in tears and I knew that he took them.”

The weeks since have been an emotional struggle, which she has spent pleading with the Department of Foreign Affairs, the RCMP, Toronto police and even her local member of Parliament for help in bringing her Canadian-born children back home.

“I don’t understand why the government cannot bring my children back,” she told CBC News in an exclusive interview.

Foreign Affairs said it’s been made aware of Zaiba’s case and is continuing to provide “consular assistance.”

But family lawyer Andrew Feldstein said Zaiba will face an uphill battle because Afghanistan is a country that has not signed on to the Hague Convention — an international agreement that, in part, protects children from abduction.

“Which means you would need a court in Afghanistan to agree that the children ought to be returned to Canada,” Feldstein said. “You’re subject to their laws because that’s where, regrettably, the children are right now.”

Here’s a list of countries which have signed the Hague Convention. If your ex is from a country which isn’t on the list, I would take a hard line against allowing him or her to remove the children from Canada.  If the other parent asks for it, say no.  If he or she commences a court application, fight it. If an order allowing their removal is issued, appeal it.

I can sympathise with a parent from outside of Canada who wants the kids to see their ancestral home and meet their extended family.  Certainly, in the absence of any safety risks to the children, access in Canada should be facilitated. But if there’s no legal way to bring the kids back from the other parent’s home country, the risk is just too great.

What I’d really like to know about the Zaiba case is how the father got the children from Europe to Afghanistan. If a person is traveling alone with children, He usually won’t be allowed through customs without documentation confirming that he’s allowed to travel with them.

Unrecommended legal strategies (I)

It’s bad enough when clients wear old jeans and hoodies to court.  This is just a little bit worse:

Heath Campbell is the leader of a pro-Nazi group called Hitler’s Order. He lives in New Jersey, and chose to name his son Adolph Hitler Campbell. Both of his children were taken away from him in 2009, and now he wants them back.

On Monday Campbell was in court fighting to get his children back. The state of New Jersey took them away saying that he was an abusive father, but Campbell thinks differently. However he may not be helping himself by wearing a Nazi uniform to court.

Book Review – Without Honour: The True Story of the Shafia Family and the Kingston Canal Murders by Rob Tripp

[Originally posted at Canadian Lawyer]

“My children did a lot of cruelty toward me.”
- Mohammad Shafia, testifying at his trial for murdering his first wife and three daughters

His daughters’ “cruelty” manifested itself in several ways: wearing revealing and immodest clothing, dating boys, and refusing to follow his strict orders. And for that, they had to die.

In June, 2009, a Nissan Sentra was found at the bottom of the Rideau Canal near Kingston, Ont. The bodies of teenagers Zainab, Sahar, and Geeti Shafia, and 50 year-old Rona Amir Mohammad, were trapped inside.

Mohammad Shafia, a prosperous Montreal businessman originally from Afghanistan, insisted one of his daughters had taken the car without permission, and crashed into the canal by accident. His second wife and his 20 year-old son backed him up. But investigators were immediately skeptical, especially after it became clear another, larger vehicle had pushed the little Nissan into the canal.

Moreover, the older Shafias’ behaviour on that tragic night made little sense. In particular, they couldn’t satisfactorily explain why son Hamed drove home from Kingston in their Lexus SUV, reported a fender-bender in a Montreal parking lot, and returned in the family minivan the next day.

The damage to the Lexus perfectly matched debris remaining at the crime scene, and despite their heated denials, Mohammad Shafia, Hamed Shafia, and Tooba Mohammad Yahya were arrested and charged with first-degree murder and conspiracy to commit murder. The trial, and the events leading up to it, are covered in investigative reporter Rob Tripp’s riveting Without Honour: The True Story of the Shafia Family and the Kingston Canal Murders.

Tripp, whose reporting on the Shafia case earned him two National Newspaper Award nominations, begins the story in Afghanistan, where Mohammad Shafia married Rona just before the Red Army invaded. As the country descended into brutal war against the Soviet Union, and then total anarchy after the Russians left, Shafia moved his family to Pakistan, Dubai, Australia, and finally Canada, where he became a successful property developer.

Before leaving Afghanistan, the still-childless Mohammad took a second wife, Tooba, who gave birth to all of the Shafia children. But Rona would play at least as large a role in raising them, and would accompany the family to Canada — officially as a domestic servant, to get around Canada’s laws against polygamy.

Rona was treated little better than a servant in Canada — her passport was taken away to keep her from leaving for another country, and Mohammad and Tooba made it very clear they could have her deported back to war-torn Afghanistan if she didn’t play along. Meanwhile, as teenagers Zainab, Sahar, and Geeti entered adolescence, they openly rebelled against their father’s strict household rules. Eventually, the “humiliation” became too much for their parents and loyal older brother to bear.

Unsurprisingly, considering the subject matter, media coverage of the Shafia murders was controversial, with newspapers and television networks varying in the attention paid to the perpetrators’ (and victims’) religion and culture. Tripp, for his part, reports that Mohammad Shafia was a devout Muslim when it suited his purposes, and that his actions arguably had more to do with his upbringing than his faith:

He did not attend mosque and he did not read the Qur’an daily, as had Rona.
He knew only what he had seen growing up in Afghanistan, that women were the property of men and should be obedient, passive and chaste. In his household, the girls had been ordered not to associate with boys until they had completed their studies. Shafia saw no offence in calling his daughters “prostitutes” and “whores” when it was clear that they had ignored that rule. He was prepared to accept the consequences of his deeds, and he exhorted his son and wife to follow him.

Shafia was so brazen about his desire to punish his children that he mused about it on the telephone with horrified relatives, who later testified against him at trial. They felt it was their duty as devout Muslims to testify against him in court.

Mohammad and Tooba actually testified in their own defence, and did themselves few favours with self-serving and contradictory answers that are almost painful to read. But their lawyers did raise a very strong point — despite all the evidence linking their parents and brother to their deaths, investigators were unable to conclusively determine how the Shafia girls died in the first place. The bodies’ positions in the car, and the absence of any escape attempt, suggest they were killed before the Nissan was pushed into the canal. But how this was done remains a mystery.

Nevertheless, the parties were convicted and sentenced to lengthy prison sentences. The case may not be closed for quite some time, however, as they promptly appealed the verdict. The cultural and religious issues that arose during the investigation and trial, not to mention questions surrounding the way the victims died, will give appellate justices much to consider.

Eventually, a revised and updated edition of Without Honour may be necessary. For now, though, it is a detailed, damning, and thought-provoking chronicle of one of the saddest criminal cases in recent Canadian history.

Crime doesn’t pay. Criminals do.

So your income went down after you were convicted of a criminal offence, and now you can’t pay child support?  Too bad:

When it comes to paying child support, courts won’t sympathize with parents who are the authors of their own financial demise through criminal activity, a family court judge recently ruled this month.

In Rogers v. Rogers, Superior Court Justice Alex Pazaratz found an Ontario father who lost his well-paying job due to criminal convictions couldn’t use his reduced income as an excuse to stop paying child support.

The father, Scott Rogers, “is intentionally under-employed. His intentional behaviour caused him to lose employment and limit his opportunities to find replacement employment,” wrote Pazaratz.

Rogers drove without a licence for 10 years and was convicted of driving while suspended 12 times, according to the ruling. He kept driving after each conviction until “it all caught up with him” in February 2011, wrote Pazaratz. The court sent him to jail for eight months, the judge noted.

Rogers’ employer refused to take him back after he got out of jail, forcing him to take up another job that pays far less than his previous income of $74,500. Rogers also accumulated convictions for uttering threats and harassing his ex-wife.

According to the judge, the father “made conscious decisions to do things — illegal things — with the full knowledge that his reckless and anti-social behaviour would make him unavailable (let alone, unacceptable) for employment. The net result is the same as if he’d handed in his resignation.”

The father of two had gone to court with an application to stop paying child support once his income plummeted to an expected $33,000 in 2013. But Pazaratz said his children and ex-wife shouldn’t have to pay for his bad decisions.

[…]

The Ontario Court of Justice decided similarly in Costello v. Costello. In that case, a father sought reduced support for his two children after losing his job following run-ins with the law.

Toronto family lawyer Bill Rogers calls the decision a “really good reminder” for both family lawyers and litigants of how the courts treat parents who lose their jobs through their own actions. “It’s basically like quitting your job,” he says.

According to Pazaratz, the definition of intentional doesn’t require establishing that the father lost his job just so he could stop paying child support. “There is no requirement of bad faith or need to find a specific intent to evade child support. Rather, as the objectives of the child support guidelines state, parents have a joint and ongoing obligation to support their children. Imputing income is one method which courts can use to give effect to this obligation.”

He added: “The expectations placed on the applicant were not terribly onerous: Obey the law. Support your children. It would be counter to public policy to allow the applicant to deliberately breach the first obligation and then use his own misconduct to avoid the second.”

The unlikely champion of same-sex marriage

Ted Olson, the lawyer arguing in favor of marriage equality before the Supreme Court of the United States – the sixtieth time he’s appeared before America’s highest court –  has the background you’d least expect:

Certain law partners no longer call Theodore B. Olson for lunch. Old friends no longer come to dinner at his sprawling house in the woods near the Potomac. One of his best friends died in December, somewhat estranged.

All since Olson — the conservative legal hero, crusader against Bill and Hillary Rodham Clinton, defender of George W. Bush — signed on to fight for same-sex marriage in California, a battle that he will take to the U.S. Supreme Court on Tuesday when he challenges Proposition 8, the state measure that banned gay marriage.

Olson will argue that gays and lesbians should have an equal right to marry, a view that, if shared by the justices in a ruling after Tuesday’s hearing, would strike down the California ban.

“They feel a little rebuffed, that their leader has turned on them,” said Olson’s wife, Lady Booth Olson.

Olson, 72, brushes aside the shunning. The marriage case, the 60th case that he will have argued before the nation’s highest court, has been a transformative experience, he says. He speaks with passion, and sometimes a tear, about the gay men and women, including Republicans, who reach out to thank him.

[…]

…it was the election to replace President Clinton in 2000 that made Ted Olson a conservative hero. He persuaded the Supreme Court in Bush vs. Gore to block a planned re-count of presidential votes in Florida. The legal coup handed the White House to the Republican. Bush rewarded Olson by naming him solicitor general, the government’s chief representative at the high court. The nomination sparked a three-month confirmation battle. Worse lay ahead.

On Sept. 11, 2001, shortly after 9 a.m., Olson was in his Justice Department office preparing for the Supreme Court term that would begin in a few weeks. Barbara called, sounding anguished. She was on an American Airlines flight to Los Angeles. It was his 61st birthday, and she had delayed her trip to be with him the night before.

The plane had been hijacked, Barbara said, and she asked what she should do. The call was cut off. She called back, staying on the line long enough for them to exchange quick words of love. Ten minutes later, the plane crashed into the Pentagon.

Was Olson changed by his wife’s tragic murder and subsequent remarriage?  Maybe, but David Frum – another Republican heretic on this issue (and many others) – insists that he supported the idea well over a decade ago:

I vividly remember a dinner with Ted and Barbara Olson in February 2001. In those days, my in-laws spent most of the month of February in Florida, and they always stopped to see their grandchildren and (afterthought) my wife and me on their drives south and north from Toronto. The Olsons kindly invited the four of us to dinner during the stopover, which is how I can be so sure of the month; I can be sure of the year because the dinner was the last time my in-laws saw Barbara. She was murdered in the hijacking of American Airlines Flight 77 on September 11, 2001.

I don’t remember how or why the issue of same-sex marriage arose during the dinner, but it did. The balance of opinion at the time was 4-1 against Ted, with Barbara mostly preserving a discreet (and unusual!) silence on the subject. Ted argued very passionately that gays were entitled to every right of straight Americans, and drove home his point by itemizing instances of antisemitic discrimination that he, a Gentile, had battled at the beginning of his legal career. This is no different, he insisted. Near the end of the discussion, he predicted that the country – and everybody at the table – would come round to his view sooner or later, probably sooner.

They certainly did.