My Blog

My blog is meant to inform but its primary purpose is not to be informative. It is about the law but it is not solely about the law but also about those places the law does not go. The law is the platform from which I dive. My blog is about my opinions but is not primarily about my opinions since I often temper these to the subject matter on hand, not to mention the imagined audience. Quite often when I open a subject which is related to the law for discussion, I find myself in a place I never meant to be, or to go, as if the subject takes on a life of its own. I write articles based on what I do for a living, and I am a family lawyer, but of course that is not all I am. I find that when I engage with a subject, and use writing to express my thoughts, that quite often the journey is more interesting than the end and that what I thought I was writing about is not what I wrote about at all. This seems to me to be a metaphor for life. I write, therefore, to throw some light into the dark, to increase my understanding and by extension hopefully, other people’s understanding of what often seems incomprehensible, to enliven the dull so my spirit does not sag and to throw some humour at what is often deeply sad so that I can, or maybe, dare I say hopefully, “we”, can gain perspective. I doubt I succeed but the effort is honest.

Tuesday, November 28, 2017


We associate Christmas for the most part with families and most especially children. Being a parent in a recent divorce or separation can be particularly challenging at this time of the year. Children look forward to Christmas for months in advance and depriving them of this joy by making them dread this time of year is something no parent would want. 
It is particularly important to have the conversation about time over Christmas early. Early is not two weeks before, it is 3 months before. Unfortunately, many people leave it until December to talk about this and by then it is way too late. Arrangements have been made and if there is a profound disagreement, the courts will not entertain you at this point as their lists are already full. 
Too often the conversation about Christmas happens flush with Christmas when emotions are running high and it is difficult for that conversation to take place in an even handed way. If you have the conversation earlier when the days are not so cold and no Christmas decorations have appeared, it is an easier talk. 
How should you start the conversation? Before embarking on this, however, ask yourself – what kind of relationship do I have with my ex? Is it civil or do we fight at the drop of a hat, maybe we have not spoken in years and maybe all our communication is by text? Depending on the answer to these questions, you might, if the relationship is civil, for instance, ask him or her for coffee to discuss a child related matter. On the other hand, if you are ‘daggers drawn’ then such a conversation might not be feasible but perhaps a well-crafted letter might be considered or alternatively the assistance of some mediators or collaborators to help you both to work out an agreement. The benefit of using mediation or collaboration to assist with such a discussion is that it could lead to an overall improvement in your communication as parents which can only benefit your children. I am a mediator and a collaborative lawyer and I sometimes ask my clients to let me review their written communications before they send them, not so that I can change them, but so that I can, with an objective eye, remove anything likely to inflame rather than calm. I always say to my clients, whether they are writing a text or a letter, that they should not write anything they could not imagine a Judge reading or they would not want a Judge reading. 
If you are lucky enough to have a civil relationship with your ex or to be on speaking terms at least, then you might well want guidance on how to broach this conversation once you have got them to the cafĂ©. A mediation trick is to use what we call the commonality to open the subject.  Commonality is what we i.e. you and ex have in common and given the topic here, that is your children. So, you start each and every conversation with your children. Why would you do that?  People soften when they talk about their children and that will make the conversation flow better on both sides. Having talked about school, sports or recent achievements, it is a very good idea to emphasize what a good job you think the other parent has done with the children and that you know how much he or she loves them. It is then a good idea to say how much you love your children and try and get an explicit acknowledgement from the other parent that they know that is so. You may have to travel around the houses a bit in this conversation. Once you have that acknowledgement you might then say how much you miss your children and how much you would like to spend some time with them over Christmas. It is never helpful in this type of conversation to talk about rights. No matter how tempting, do not approach this from a rights perspective. The only rights that a Judge is likely to take seriously in this context, are the children’s rights. Women have no difficulty showing emotion generally, but many men do however, when men show emotion around their children and express themselves from their heart, it can be the breakthrough that is needed between parents at loggerheads. Now obviously if you and your ex are ‘daggers drawn’ or have not communicated in any form for a long time or only by text, then such a conversation might prove too difficult, so I suggest that you seek help early i.e. early September at the latest and see if mediation or collaboration might be an option. When you do reach agreement by whatever means whether you and your ex do it together or with the assistance of a mediator or collaborator, the agreement needs to be written up signed and witnessed. Collaborators will do this automatically since lawyers are involved in collaboration and generally speaking mediators will also send their clients to solicitors to draft the agreement. There is a danger, however, that if you sort things out yourselves that you might not write it up and that would be a mistake. 

While I say that September is the optimum time for this conversation, I would still encourage you to try and get something sorted even if you have not tended to it until now – at least try and use whatever assistance you can get by way of collaborators or mediators.  

Hurricane Harvey

 Reading the news in the last few days, I note that the reality for many people caught up in Hurricane Harvey is that they will never again be able to go back to their homes which will, it seems, have to be demolished.  Of course, there are far worse things that can happen but it is still pretty devastating.  When we hear about something like a flood, earthquake or a tornado and the destruction that follows natural disasters, we are brought face to face with the human price of such terrible events.  But people lose their homes as a normal part of life every day of the week.  Marital or relationship breakdown is a normal part of life.  Sometimes, the consequences of relationship breakdown can be avoidable with a little bit of forward thinking or as we, alternative dispute resolution practitioners (mediators, collaborators etc) like to say future planning.
One of the questions family lawyers get asked all the time is what will happen to our house or will our house have to be sold?  It is not inevitable that the house would have to be sold and it is not inevitable that it should go to one or other of the parties, leaving the other with nothing.  In fact, that latter scenario rarely happens these days in any situation.  However, with rents spiraling out of control and some marital or family houses still in negative equity, it can be a rough ride to figure out what to do when the relationship breaks down? 

Experienced family lawyers will discuss a menu of options with their respective clients.  Collaboration is one such option amongst several which works with you and your partner/spouse to calmly review all the options available and select what makes sense for the family as a whole. Everyone is part of the discussion at the same time and everyone is resolution focussed.  We call it the synergy of team and it can be transformative.  Difficult life decisions and hard choices are best handled sensitively with a dedicated team.   Don’t despair when presented with such a situation, take some time and get the right advice.