welcome back to real estate 101. Today, we're gonna continue our discussion on family law and talk a little bit about the Ontario joined once again by John Schuhmann of Deborah Smith, Frank, John. Welcome back to the show, it's great to be back Joe, all right, John. So what is the role of the Children's Aid Societies when children Zeta sized, have a few roles, but the one that most people are familiar with? Are they're a child welfare or Child Protection role, is keeping children safe and they do that for the most part with regard to children's parents or children in the care of guardians right they do it a bit for institutional care and, for example, daycares. They invest, investigate daycares, however, they do not investigate children's, they decide our child welfare inside schools, that's sort of under the Ministry of Education role, but where most people run into them is, if someone's concerned about whether children are safe in parents to care. Okay. So do they monitor children or do they just check in to see? If you know the children are safe, know, Children's Aid Societies have no monitoring function at all there, not like the police, where they cruise the streets. Looking for children to see if they're, okay right, so if a Children's Aid Society has come to your door, it's because someone's tipped them off to something and they do real completely, rely on those tips. They rely on the tips of professionals, any professional who has you know, a role with children inside their profession has the duty to report any time they think a child is in danger or a child is a legal obligation, but off though he's fine to doubt without Getting these tips, Children's Aid Society would not know if a child was living in a crack house or not being better or was being beaten at home. They rely completely on people, giving them tips and then going out investigating those tips. Okay, now do they have much power when they are investigating possible abuse or neglect. Yeah, Children's Aid Societies have a lot of power because they've been given a lot of power because their role is to protect children, and that seem to be important, and so they have a lot more power than even the police. Do. For example, the Children's Aid Societies or the right to go and interview people to find out whether their child is safe right. They have the right to look at documents in relation to that child, often without a court order, although sometimes they may require one, often they can just go get those documents. They have the ability to speak to children without their parent's consent to find out. What is going on with the children or someone the child knows, they have the ability to actually go and apprehend a child, take a child into foster care without getting a judge's permission first or even convincing a judge. It'S warranted if the Children's Day to Saudi worker thinks that a child is in imminent danger. They have the right to go out and get that child without court approval to something the police could never do and the last thing is. They have the right when they're, actually picking up a child, to enter onto private property and do a search of that property to find the child to make sure a child's safety. If they're worried, they may have to apprehend that child again, the police would require a warrant to do that. Okay, so what should parents do if they find out that Children's Aid Society is investigating them? Well, the most important thing is to cooperative or cooperative with them, and it makes a very it's very important to make a good first impression, but Children's Aid Society cuz they have so much power can often negation, and if you don't cooperate then you look like you Are just trying to hide something or you're being unfriendly or you're being mean and you're the type of mean person who would not only be mean to a Children's Aid Society worker but be mean to kids? Do it? So, that's why it's also very important to make a first impression, and you also have to let them speak to your kids. If your. If they want to speak to your kids, you should let them see your house and turn around their house, and you should. You know give them some information about your kids and be opening in speaking with them, because anytime you, they think you may be hiding something. Then they're gonna be more suspicious about. What is going on with you and your family and props that your children are in danger all right so to touch on that is there anything parents should do or can do if they want to speak with your kids, no there's nothing! Parents should do or can do they're allowed to speak to your kids and if you try to coach your kids or prompt your kids or tell your kids what to say and the Children's Aid Society worker. When I mean a lot of them are trained in interviewing children right, and so they take the fact that kids have been coached or told what to say. Then they get suspicious that someone is hiding something and that'll make things worse. So it's better just to let your kids be relaxed and tell them. Let them speak to the worker and tell them what's going on anything else. Can just get you into more trouble? Okay, so I know you said to be cooperative, but a lot of this sounds a little bit intrusive right. So is there anything parents? Maybe shouldn't so yeah there are a few things you shouldn't do and you have to be very careful about not being cooperative because I said making the first impression is important, but also not going to jail is important. Okay. So if you, if the Children's Aid Society is investigating something that could be a criminal charge like that, you've assaulted, a child or assaulted, someone else or you've threatened death or done a throw that sort of serious thing and the children's data size asking specific questions about that. Then you really need to have a lawyer present. You have a right not to incriminate yourself. I think bait societies share everything. You say with the police and those are circumstance and you go ahead and say something that incriminates you. Children'S Aid Society is going to tell the police officers and then that's can be used against you in court. So if you're talking about something that can be lead to criminal charges, you have to get a lawyer involved for the interview. Otherwise, you run a big in big jeopardy and any criminal lawyer will tell you-you don't speak to the police unless well you don't speak to a police period when they were investigating you, but when you're kids you they may take your kids away. If you don't speak with the police, you have to balance that and the only way to balance. That is, if you speak to a lawyer and have a lawyer there for the interview. The other thing you shouldn't do is you sometimes Children's Aid Societies want you to sign a an agreement for to have your kids in care or to help provide services. You should never sign an agreement with Children's Aid Society unless you've spoken to a lawyer about it. First, these are legal agreements, they're legal contracts between you in the Children's Aid Society, and they usually give the children's they decide even more power than the children's daddy. What do you already have? It was with respect to you all right and they are enforceable and they are enforceable and if you don't go by them, they get children date. So I can take you to court for breaching them, so you and because they are an enforceable agreement, a forcible legal contract. You should never sign any enforceable legal contract without speaking to learn to make sure you understand it, especially in this area, because chances are you? Don'T unless you have history with the Children's Aid Society, you don't know what their powers are and what they can do and can't do so. You should speak to a lawyer before you sign any sort of agreement. Okay, are there other times when you should speak with a lawyer when dealing with CI? Yes? Well, if the Children's Aid Society come and they apprehend your kids, it is absolutely critical that you speak to a lawyer like right away as soon as the you know. They leave with the kids. You need to get in touch with a lawyer right then, the court, the Children's Aid Society, has to have your case in court within five days of apprehending kids and putting them in foster care and there's a lot. You can do to better your case within those five days. There'S a lot of work to be done and you can really do a lot to get your kids out of the Children date Soddy care either into another family members care back into your care. But you have to do it really fast, and lawyers have busy caseloads and things like that. They need some time and it's also a ton of work to do this properly. So you need to get the lawyer involved right away before that I, as soon as the Children's Aid Society leaves start looking for a lawyer and trying to get one on your side and make the first appointment you can get okay. So do parents have rights when dealing with chaos? Well, if you would go to see escort, a judge will tell you that the Child and Family Services Act is not a parent's rights statute. It'S a children's book child protection statute, but they're the Children's Aid Society cases, because it's the state like the province of Ontario against you, the Canadian Charter of Rights and Freedoms, does a, and so you do have rights. But if you try to enforce those rights, you might get the draw the ire of a judge and not get what you want unless you do in a child-focused way. So when you're talking about rights, you're not shouldn't be talking about your rights so much you should be talking about what is best for the children and how the Children's Aid Society, not abiding by those rights. It affects the children. So, for example, if things take too long, the court of appeal has said that delay can be a breach of a charter right in in child protection cases and kids. You know their lives are short that things take a long time being in foster. Care can be bad the longer that takes the worse. It is for the kid kids have a right to not have things delay so taking from that perspective is helpful, you also have a right to disclosure from the Children's Aid Society and that's actually, your Charter right, which means you're allowed to see the Society's file, and You should see the Society's file to understand. What'S going on and again that is so the parents can understand what the concerns are, so they can meet them, because what you want to take as-as your position is not that your rights are being violated, but you want to make sure that you have the Best possible plan for the kids and the only way you're going to know that is, if you have the school just in this society. So in those ways, you have so you have rights, but you have to make the child or apply them in a child-focused way all right, so are there rights that parents should enforce or what doing anything get just get them into trouble, well enforcing their rights. As I said, would get them into trouble, but enforcing the rights in a way that his child-focused and considers the child is very helpful. So, as I said, the right of the school atrociously understand the slightest case. That'S important parents need to enforce that. The right of having a speedy hearing and getting things moving along quickly, also very important for the kids, so parents saying they need things to move along quickly. That'S child-focused parent should have a right of access. That means they get to see their kids, except unless they are going to absolutely harm their kids at it. If they're left alone with children for you in a second I mean there, may be supervised taxes, but it's important for kids to see their parents. I mean the parents are probably the most important people in the children's life and they have a link to those parents and they need to be able to have contact with those parents ongoing. And so if children are taken away from you, you need to in just on having a you know a right of access to the children or actually it's the children's right of access to you, because that's what's important but enforcing. That is something that is very important for the children. It gives them some continuity too, and that's something that's not going to get you into trouble. The same is the there is a sort of children have a right to be connected with their family in their community. Besides their parents, so the children should like the children, they another family member or with the community within more familiar surroundings and keeps them sort of a link to their background. And so that is also very important. And that's something that right from the beginning is to speak to a lawyer. If the children taken away from you, you should be trying to find family members or community members who can adequately care for the children all right. So what is the most important thing for parents to know if CAS is in their life? Well, you need to get together with a child protection worker right away and come up with a plan, and you have to be able to show that your plan to keep the child safe from whatever the dangers are that are that are alleged or may be present. Even if they're not present, but the judges can assume they are until there's a full trial, you need to show that your plan to protect the children is better than the Children's Aid Societies plan, and that's we and doing that point. That plan together take some time and some effort and some and do it getting some logistics organized and getting people involved. So, that's why you need to contact a child protection lawyer right away as soon as you know, you may be in trouble with the Children's Aid Society all right, joint, great stuff for people watching and listening who may want to get in touch. How can they reach? You you can reach me at my phone number, which is four one: six, four, four, six: five zero eight zero at our website, which is Deborah law CA. You can find me on Facebook. You can find me on twitter Minh fan MA, and you can also find me on LinkedIn, alright, John great stuff, thanks for coming on. Today'S show it's great to be back Joe, so there you have it. If you're looking for a top family lawyer get in contact with John Schuhmann of Deborah Smith, Frank, don't forget to subscribe to our YouTube channel like comment and share our videos. I'M Joe thanks for watching and we'll see you next time
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Clarissa Rayward, Family Lawyer specializing in the "happy divorce" - KPI Case Study (Brisbane 2015)4/10/2018 My name is Clarissa raehwan, I'm the director of Brisbane Family Law Center and I'm also known as the happy family lawyer. I'M a divorce lawyer and I specialize in helping to separate families stay out of the family courts and stay friends because I believe that a divorce can be a positive end to a marriage. I'Ve been a divorce lawyer for over 12 years now and that experience has shown me that the traditional legal process, lawyers, and courts does very little to help families find a positive future after divorce. So in 2008, I established Brisbane family law center, our multidisciplinary legal practice, where my team of lawyers works alongside counselors and financial planners to ensure that our clients have the holistic support they need. Prior to kpi, I ran a busy legal practice. I knew I was different to the others, but I had no way of articulating that, and I'd also set a new year's resolution, at least twice to write a book, a book that would help my clients work their way through divorce in a way that would minimize The harm for them and their family, I wanted to write a book even had a title, but I had absolutely no idea where to begin, and one day by chance,
I received an email to come to a day just like today, and it was about this time In the morning that I knew that this was something I wanted to be. A part of I've been involved in KP ina for about 18 months, and there are so many great shifts in my business that I could talk to you about. But there's two that I think are the most significant. The first is that I can finally tell you who I am what I'm about and why I'm in business, I'm a divorce lawyer and now I can say so much more than I'm just different to the others, because I'm a divorce lawyer that specializes in helping to separate Families stay out of the family courts and stay friends, because I believe that a divorce can be a positive end to a relationship in my career. To date, I've seen the damage that's done by the traditional legal process to families, but particularly children. As a result of a conflictual divorce, you see it's not divorce, that harms children, it's the conflict that can go on for years and years thereafter that will ensure that those children will never reach their full potential. It'S that that drives me to change how we practice and how families experience divorcing separation through my profile, through writing and through products. I'Ve learned that I can reach more and more people and that I can potentially change things early in the program. https://jamesnoblelaw.com.au/practice-areas/ I began. Writing a blog called the happy family lawyers in brisbane where I share on a weekly basis my knowledge on how you can have a dignified and respectful divorce. My blog has now been read over 25,000 times. Almost every client that I've met within the last year has read my blog prior to meeting with me and it's the primary reason for them. Choosing me over my competitors, and I could talk to you again for hours about the opportunities that have come from writing. For me, but one of the most exciting recently is that I've now got a regular spot on ABC radio once a month doing talk back about divorce. The most interesting statistic in my business since starting kpi is the significant increase in client engagement. So yesterday, for the purposes of today I did some numbers. I went back to January February March of last year and I compared it to January February March of this year and there's been a 50 % increase in the number of clients engaging my firm when I just look at those periods and I finally written that book. Splitsville, how to separate stay out of court and stay friends KPI's given me a whole new enthusiasm for my business, I'm still a divorce lawyer, but I'm spending so much more of my time doing the stuff that I really like. I'M riding I'm speaking and I'm sharing my knowledge and it turns out that this is the stuff that makes the biggest difference in my business. My name is Clarissa Rohit and I'm known as the happy family lawyer, because I specialize in helping my clients experience a dignified divorce, the sort of divorce that they can look back on with some pride From pre naps to custody battles, or ask a lawyer: we continue with a look at the sticky subject of family law from CTV news. This is Janet. I am with Beverly Thompson and marki good morning is Tuesday, February 26th on Beverly Thompson and I'm Marci Ian's. Coming up on, Canada AM family laws. The focus of today's ask a lawyer week segment and if you've ever wondered what you need to know before signing a prenup family lawyer and your Feldstein will answer that question and others. Lady joins us in just a couple of minutes. We ask a lawyer week continues with an area of law that can get very messy. Family law covers everything from divorce to custody disputes to prenups. Here to answer your emails today is Andrew Feldstein. He is a senior partner at Feldstein Family Law Group. Thank you for taking part in this and got some tough questions to tackle in a short amount of time, so we want to get right to it. This is from Lee this first question. At what age can a child with which parent he or she wants to reside? What steps must be taken to allow this to happen? Well, to begin with, there isn't a clear-cut age where a child can decide what, where they want, 16 or 17 or 18. There'S no specific, there's not a magic age. Part of it depends on the maturity of the child, the reasons for the child, so a children, a child who is 12 or 13 years old, may express their opinions, and if the matter was before a court in Ontario, a court would appoint the office of the Children'S lawyer may appoint the office of the children's lawyer, and that would mean either a social worker and/or.
A lawyer would meet with the child here the child's opinions and try to understand why the child wants to live with one parent or the other, to ensure that the child isn't just repeating what one parent wants them to say right, because that's, the tough part is To make sure that it is, in fact, the child's feelings, absolutely okay. So the next question we have is an email. This one is from Robert, my common-law wife of 30 years, and I split up. We jointly owned a home. She moved out five years ago and I still live in the house. We both want to sell but she's being slow in getting her stuff out. She has refused to pay half the taxes and the insurance on her house. It'S in the thousands. What can I do? Well, in his situation, he can commence a court action for the partition and sale of the home, and the law is very straightforward, that if there are joint owners, especially in a common-law situation, that the home would be sold the issue that he needs to consider and think About is else, is he going to raise? Does she have a claim for spousal support against him after a 30-year relationship, and if you take an aggressive tack for the sale of the home, she may come and say I want some spousal support now, so that would negate the fact that he says that she's, Not paying for tech like if it's a jointly owned home, could he push for her to pay the property tax he could try, but the offset for that would be her saying. https://jamesnoblelaw.com.au/practice-areas/ You'Ve had the benefit of being in the home, and if there isn't very much of a mortgage, how much did he have to pay to live there? What would it compare to paying rent on a home? Okay? So our next question I am engaged and my fiance has agreed to sign a prenuptial agreement. What should I know before I sign it? What should I be, including on my end? Well, before any prenuptial agreement or recall the marriage contracts and sign, you need to have full Frank, financial disclosure, meaning you need to understand what agreement you're getting yourself into. What does your spouse make? What do they have? Because what are you contracting out of and what and you need to consult a lawyer and make sure you have a family custody lawyers review the agreement, because if somebody is giving you an agreement you're 25 years old, that says, I'm never gonna pay your spousal support and I'M not going to give you any division of a property. Well, what happens? Thirty years later, it's a pretty unfair deal that would probably be set aside, but you shouldn't sign it. So, in most cases in this world of prenuptial agreements, I guess in which we live. Is it something that, generally speaking, is drawn up for the benefit of both people or it does it tend to be someone drawing it up? Who seems to think that that person has more money? Therefore, you must sign well, it's usually somebody has a motivation to do it. But the question is: what's the motivation and what's the reason and what are the objectives of it? Because if you want an agreement that is really one-sided like the one I just suggested, it's not gonna. It probably will not be enforceable years later. Much like in the recent McCain and McCain case that was all over the news. Makeda McCain case enlight necessary remind us, that's the Wallace, I think was, I shouldn't say: Wallace McCain, but one of the mechanic's heirs and they had a marriage contract that was set aside by the court and the spousal support the wife got was about 175 thousand dollars. A month, yeah yeah. No, I do remember that okay, so, lastly, we have a question: do I have to disclose all of my assets to my spouse and what about my inheritance? Absolutely in family law? You need to disclose all of your income, all your assets, all your liabilities. If you get an inheritance, the important piece is from the day you receive it. You need to show it coming in as an inheritance, and you have to trace it all the way through to the data separation. So if you spend the inheritance, you don't get to keep it and the exception, as well as, if you put it into the matrimonial home, for example, paying down the mortgage, which is what most people will do. It'S gone. You no longer is jointly held. Therefore, whatever money goes into, it is also jointly held exactly otherwise an inheritance. So what should you do if you have an inheritance that comes to you? Well, I guess, before or during a marriage well from a family law perspective. If you get an inheritance during the marriage, then the best route to take is to go open, an investment account at a completely different institution than you deal with and leave the money in that account and let it grow there and don't mingle it with anything else. That'S offset against practical reality of the fact most people want to pay a mortgage down and you may want to protect it with a marriage contract at that point which you could do during the course of your marriage. Is that popular or common? Now that people would draft a, I guess, a postnup really exactly it's not popular, but that would be an option. And but the practical reality again is what happens when you're 15 years into a marriage. And you get an inheritance and you go to your spouse and say I need a contract to protect my inheritance that may end the marriage right there. Well, that could be an argument for sure. Tell me what-what holds up in court when we're talking about prenups. What are the, what are the kinds of prenuptial agreements that are most likely to stand up? Well, one of the weird exceptions and family law is that if I come into the marriage - and I have $ 500,000 in my bank account when I separate I get to deduct that 500,000 - that's what you had going in exactly, but if what I had going into The marriage was my house, and that house is still my matrimonial home on the date of marriage and I had five hundred thousand of equity in it. I have to share that because it was the matrimonial home and, in addition to that, that home might be worth more money on the market. Yes, that also, but that's less offensive, because it's not as if you're losing out on what brought in at least that's growth that you shared during the course of the marriage. So if you did a marriage contract that says I want to protect that $ 500,000. I'M bringing into the marriage that type of contract is certainly going to apply, but it's hard to predict which type of contract is going to stick with certainty or not at the end of the day. What'S really important is try and be fair in the contract? Don'T try and do something that is really extreme and one-sided, because that's where a judge is gonna want to help out the other side, and when you talk about it as a contract, does it then have to be signed? Should it be signed by a lawyer? Should it be like a will, that's notarized! Well, every separation agreement, marriage contract domestic contract in Ontario has to be signed and witnessed. Should it be done by a lawyer, but one of the first things that's going to happen with any contract if you're going to look at it and say? Was there independent legal advice? It'S not completely fatal if there wasn't, but if there is, it certainly gives a better opportunity to suggest that the side who doesn't like the contract knew and understood what they were getting themselves into: okay, good information after that scene. Thank you so much for coming in, and thank you for having me. You bet our ask. A lawyer series continues tomorrow when we answer your questions about employment law. |