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Domestic Violence Dealing with abuse and violence. Getting support and help.

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Old 07-31-2012, 01:51 PM
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Default Allegations of Abuse / Unilateral Removal of Child from Habitual Residence - Case Law

Hong v. Rooney, 2012 ONSC 120 (CanLII)
Date: 2012-01-05
Docket: FC-10-034352-00
URL: CanLII - 2012 ONSC 120 (CanLII)
Citation: Hong v. Rooney, 2012 ONSC 120 (CanLII)

Interesting quotes:

[10] Effective immediately, I am granting the father sole custody of Cecilia Han Mae Rooney, and making specified orders for the mother’s access.

Unsubstantiated Allegations

[26] The third issue with the mother’s evidence was the extent and severity of unsubstantiated allegations against the father. I find this to be most significant, and have considered her allegations within three categories: the very serious allegations of child sexual abuse and spousal violence, the less serious allegations of abuse that were easily discredited within her own testimony, and a number of nonsensical allegations.

[27] None of the more serious allegations: child sexual abuse[4] and spousal violence were placed before the court in the mother’s direct evidence, but for a claim that the father had punched a hole in some drywall. In her cross examination she later agreed that the drywall was in the basement to which the father had removed himself after a heated argument in the fall of 2008.

[28] The father cross examined the mother on the allegations in a calm and respectful manner. When he pressed for particulars on any of the allegations the mother would avoid the question by digressing into other topics. She could provide no particulars of the alleged abuses,[5] at trial nor has she done so at any time during the past two year period of litigation. She did not tell anyone, or record any information related to the allegations prior to drafting her application.

[29] The allegations of abuse have clearly devastated the father and his family. He worries not only about the lingering effect of such allegations on himself, but on their daughter. From time to time he has been fearful of even hugging his daughter.

[32] The third category of allegations was those that were clearly nonsensical in the context of the evidence and the stage of development of the child. For example, the first half of one of the more moderate passages within the Application reads:
The respondent has been and continues to be cruel to my daughter and me. He would tell me that Cecilia is not his child. He told me that he did not want to see my child. He said that he does not care about Cecilia. He continues to say things like that to my daughter and to me. I am concerned on the psychological impact that his negative comments to Cecilia might have. Whenever I left Cecilia in his care, he would not feed Cecilia until I return regardless of how long that might be. He does not know how to care for Cecilia and would tell me that he could not be bothered. He would spank Cecilia for nothing. Cecilia likes to draw. Whenever he sees Cecilia drawing he would spank her.
(Portion of paragraph 7, page 6 of Application dated November 23, 2009)

Cecilia was only 20 months old the last time that the father saw her prior to this Application.

[34] How is the court to understand the extent of the mother’s allegations and the total dearth of supporting evidence? The Application containing the allegations was drafted almost a year after separation and was served on the father during a period in which his counsel was pressing for information on the child’s whereabouts and for access. Only in the context of creating a perfect storm to deflect the father’s involvement with the child do the written allegations make any sense.

[118] Cecilia was wrongfully removed from her home in circumstances which approach that of an abduction. Her mother changed her familiar name, replaced the people with whom she had lived and changed her community. She was hidden. The effect of her unilateral removal ought not be minimized. From January 10, 2009 to April 10 2010 the father did not see his infant daughter. More importantly, for over a year, Cecilia was taken away from two significant caregivers in her life: her father and her grandmother.

[119] A period of wrongful removal can never become a period in which a child enjoys a stable home environment. By its very nature, it is a transitory period of hiding. The length of hiding is irrelevant except in so far as it affects the child’s ability to transition into normalized circumstances. There may be circumstances in which a child would be harmed by being returned.

Good Luck!
Tayken
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Old 07-31-2012, 02:27 PM
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Thank you for the link. It was sickening to read. Although I'm heartened that the judge rightfully awarded sole custody to the father, I'm thoroughly disgusted that there are no avenues or means to take the mother to task for all the other CRIMINAL (in my mind anyway) conduct that she has engaged in and continues to engage in: abduction, fraud, false allegations etc. Essentially, all she received was a slap on a wrist saying and faced no significant consequences for everything that she did. Extremely disheartening.

The scariest part of this all for me: There are more individuals (regardless of gender) like her running around and doing the exact same things!! Why? Because they CAN.

Also chilling to me is that any sane and/or ethical counsel/lawyer would represent such a case and put forth allegations and statements (even if it's on behalf of a paying client) that has no evidence or substance behind them at all. Really? This is the high standard that our law professionals hold themselves to?

Last edited by Exquizique; 07-31-2012 at 02:31 PM.
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Old 07-31-2012, 03:07 PM
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Quote:
Originally Posted by Exquizique View Post
Thank you for the link. It was sickening to read. Although I'm heartened that the judge rightfully awarded sole custody to the father, I'm thoroughly disgusted that there are no avenues or means to take the mother to task for all the other CRIMINAL (in my mind anyway) conduct that she has engaged in and continues to engage in: abduction, fraud, false allegations etc. Essentially, all she received was a slap on a wrist saying and faced no significant consequences for everything that she did. Extremely disheartening.
Well, when one balances the results of the order and the argument presented the award of custody and access as set forth by the judge does make a strong statement. The pursuit of criminal charges in a matter like this would only create more conflict and confusion for the children involved.

EoW and sole custody is not really a "slap on the wrist" in my opinion.

Paragraph 138 subsection 1 through 25 is very well thought out in my opinion to deal with the issues. In particular subsections 5, 7, 16, 18, and 22.

Hopefully the custodial parent has read the "Clipping Wings in Hamilton" article for the costs submission element of the order.

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Originally Posted by Exquizique View Post
The scariest part of this all for me: There are more individuals (regardless of gender) like her running around and doing the exact same things!! Why? Because they CAN.
Well this order demonstrates they cannot. More will come and the "truisms" are being slowly eroded in this kind of conduct, baseless allegations and use of children as pawns in litigation.

Quote:
Originally Posted by Exquizique View Post
Also chilling to me is that any sane and/or ethical counsel/lawyer would represent such a case and put forth allegations and statements (even if it's on behalf of a paying client) that has no evidence or substance behind them at all. Really? This is the high standard that our law professionals hold themselves to?
Hopefully it gets reflected in the costs award.
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Old 07-31-2012, 03:15 PM
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Thanks for sharing Tayken.

The freerolling has to stop!


I have found this:

"To succeed in a parental abduction prosecution, the Crown must prove each of the following five elements beyond a reasonable doubt:

(i) the accused is a parent, guardian or person having the lawful care or charge (a "Caregiver") of the child who was taken,

(ii) the child was less than 14 years old when he/she was taken,

(iii) the child was taken by the accused Caregiver,

(iv) the accused Caregiver's taking of the child was (a) in a prosecution under Section 282 of the Criminal Code (Canada), in contravention of the custody provisions of an existing custody order made by a Canadaina court and that, at the time of the taking, the accused knew that such order was in force and that such taking was in violation of such order, or (b) in a prosecution under Section 283 of the Criminal Code (Canada), there may or may not have been a custody order made by a Canadian court, and

(v) the accused Caregiver took the child with the intent to deprive the other Caregiver of possession of the child."



Are there any rules of best practice regarding having one's spouse prosecuted while the Family Law matter(s) are still being litigated?

Note: Tayken appears to be reading minds now and has answered this before I asked.
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Old 07-31-2012, 03:25 PM
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I have found this
Where did you find the materials you posted? Can you post the reference to the materials you cited?

Quote:
Originally Posted by FamilyBlah View Post
Are there any rules of best practice regarding having one's spouse prosecuted while the Family Law matter(s) are still being litigated?
I don't recommend seeking criminal charges in Family Law matters as it won't improve your case. You are better off reviewing case law like the one provided and including it in the book of authorities in your matter and where appropriate identify similar "truisms" and patterns of behaviour that are commonly repeated by high conflict litigants.

Shaw v. Shaw, 2008 ONCJ 130 (CanLII)
Date: 2008-03-25
Docket: 34/08
Parallel citations: 62 RFL (6th) 100
URL: CanLII - 2008 ONCJ 130 (CanLII)
Citation: Shaw v. Shaw, 2008 ONCJ 130 (CanLII)

Quote:
Family courts decide custody and access issues on the basis of statute and case law defining the best interests of the children. The criminal justice system pays no attention to such interests because it is not geared up to do so nor are the participants widely trained in how the actions of the system — from the officer who refuses to release the defendant at the station, to the duty counsel who allows the defendant to agree to inappropriate conditions of release out of expediency — effect the lives of the members of the defendant’s family. Similarly the Superior Court is tasked with the duty of adjudicating the respective rights of the parties to remain in the matrimonial home pending the resolution of the matrimonial litigation.
Quote:
Originally Posted by FamilyBlah View Post
Note: Tayken appears to be reading minds now and has answered this before I asked.
Not really. The truisms around what parents do to each other as "litigation strategy" is well document in case law and other materials. I just run queries on specific terms which tease out these cases and bring them forward for others to leverage.

Good Luck!
Tayken
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Old 07-31-2012, 03:26 PM
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Quote:
Originally Posted by Tayken View Post
Well, when one balances the results of the order and the argument presented the award of custody and access as set forth by the judge does make a strong statement. The pursuit of criminal charges in a matter like this would only create more conflict and confusion for the children involved..
If the child or mother had been assaulted by the father, even in a way that caused no physical injury, the father would have faced criminal charges. It has never been found that the criminal charge for pushing someone in a DV should be dropped because it would only create more conflict and confusion for the children.

What the mother did should have incurred criminal charges, or else such behaviour should not incur charges in other situtations. The fact that she is a parent in a family law proceeding should not insulate her, any more than it should insulate a parent that commits assault. The behaviour is criminal or it is not, the fact that there is a civil proceeing on the matter does not change this.

Criminal charges do not always rely on just the action, but also the motive and the intent. There is nothing in this case to vindicate the mother.
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Old 07-31-2012, 03:46 PM
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Originally Posted by Mess View Post
If the child or mother had been assaulted by the father, even in a way that caused no physical injury, the father would have faced criminal charges. It has never been found that the criminal charge for pushing someone in a DV should be dropped because it would only create more conflict and confusion for the children.
But, as demonstrated in Shaw v. Shaw it won't make your Family Law matters any better and may turn out to work against you.

Quote:
Originally Posted by Mess View Post
What the mother did should have incurred criminal charges, or else such behaviour should not incur charges in other situtations. The fact that she is a parent in a family law proceeding should not insulate her, any more than it should insulate a parent that commits assault. The behaviour is criminal or it is not, the fact that there is a civil proceeing on the matter does not change this.
Problem is it has to be proven "beyond a reasonable doubt" in Criminal Court.

Quote:
Originally Posted by Mess View Post
Criminal charges do not always rely on just the action, but also the motive and the intent. There is nothing in this case to vindicate the mother.
The other parent in the matter could bring matters to the JP and file their own criminal charges. Highly unlikely they will be heard. Also, the spill over into the family law matters makes matters too complex.

"approaching abduction" doesn't state it as "abduction" though.

It is frustrating for parents no doubt that people can conduct themselves in this manner but, the courts are not condoning this type of conduct and making appropriate family law orders to reflect their disapproval.

I don't disagree with your points Mess. Just weighing all the challenges the parent faces and the ugly mess that a criminal charge can create.

Good Luck!
Tayken
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Old 07-31-2012, 03:54 PM
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Quote:
Originally Posted by Mess View Post
If the child or mother had been assaulted by the father, even in a way that caused no physical injury, the father would have faced criminal charges. It has never been found that the criminal charge for pushing someone in a DV should be dropped because it would only create more conflict and confusion for the children.

What the mother did should have incurred criminal charges, or else such behaviour should not incur charges in other situtations. The fact that she is a parent in a family law proceeding should not insulate her, any more than it should insulate a parent that commits assault. The behaviour is criminal or it is not, the fact that there is a civil proceeing on the matter does not change this.

Criminal charges do not always rely on just the action, but also the motive and the intent. There is nothing in this case to vindicate the mother.
Well said Mess.

Hence my "slap on the wrist" comment.

Someone I know consulted his lawyer about what remedies are available to him in family court to address a long list of (provable) contempt and other reprehensible behaviour by his ex spouse. The situation was very similar to that outlined in the case posted. The lawyer shrugged and said that even if all the evidence establishes wilful action and guilt without a doubt, it is highly unlikely that any judge will place any sort of heavy sanctions (ie. jail time, heavy fines) on a mother with a young child to care for; so does he really want to pour in thousands and thousands of dollars pursuing something that is likely not going to net the offender much in terms of consequences?

Another went to the police about his ex spouse selling an over half a million dollar matrimonial property without his knowledge and consent by misrepresenting her marital status and other information (which equates to fraud, and definitely over $5,000 in this case i would think) - the police shrugged and told him to go to family court and have it all sorted out there.

I'm sure there are many more other examples out there.

No wonder there are so many crying foul when it comes to "fair" and "equal" application of the law.

Last edited by Exquizique; 07-31-2012 at 03:57 PM.
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Old 07-31-2012, 04:04 PM
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Quote:
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Where did you find the materials you posted? Can you post the reference to the materials you cited?
I found it here at paragraph 8...

PARENTAL CHILD ABDUCTION: WHERE FAMILY LAW AND CRIMINAL LAW INTERSECT « family assets
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Old 07-31-2012, 06:20 PM
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Alleged child abductor now in Winnipeg | Winnipeg | News | Winnipeg Sun

A truly horrible example of parental abduction ,that is now getting to the prosecution stage.Hard to see how the parent in question can call this "in the child's best interests"
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