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

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Old 12-30-2013, 07:26 AM
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Default Truisms Exposed?: The difficulty with the term “abuse”... (Case Law)

Hi All,

I often state that the term "abuse" and "domestic violence" is over used in the context of family law and it appears that Regional Senior Justice H.M. Piercea has a similar opinion.

Abdelhamid Tayebi v. Salima Oukachbi, 2013 ONSC 6960 (CanLII)
Date: 2013-11-08
Docket: FS-13-0020-00
URL: CanLII - 2013 ONSC 6960 (CanLII)
Citation: Abdelhamid Tayebi v. Salima Oukachbi, 2013 ONSC 6960 (CanLII)

In para. 12 Justice Piercea states:

Quote:
[12] The difficulty with the term “abuse”, as it is used in affidavits filed in family law cases, is that it is used subjectively. It is an emotionally coloured term. It is not limited to describing physical violence but may be also be used to describe a range of conflicts including arguments, differences of opinion or values, or hurt feelings. For example, one partner may consider himself or herself as a good money manager while the other partner may perceive close budgeting as coercive control. One partner may consider an end-of-day inquiry about how the other spouse’s day went as an indication of love or interest while a disaffected spouse may deem the inquiry intrusive and controlling.
Note the explicit identification that the term "abuse" is "used subjectively" and that it is an "emotionally coloured term". In particular, many people claiming "abuse" and "domestic violence" in affidavits are simply expressing "differences of opinions or values" or "hurt feelings".

The example provided of the "good money manager" being "perceived" as controlling is an excellent one. The other example of the person inquiring about how their day went as "intrusive and controlling".

The honourable justice goes on further to state (my emphasis added on this one):

Quote:
[13] Allegations of abuse may be a symptom of the failure of a relationship. Blame is an inherent part of the allegation. Sometimes it is wholly warranted; other times it is not. When parties are not communicating, any slight or criticism is magnified. There is a tendency to minimize the other spouse’s good qualities and maximize the bad. Warring spouses are rarely in a position to step back and evaluate the other’s behaviour with objective eyes. Nor are they able to critically assess their own behaviour...
Allegations of abuse are often the symptom of a failed relationship. Rarely if ever does the court, OCL and/or Section 30 evaluator explore the past relationships of someone alleging "abuse". Generally, false accusers have a pattern of alleging all of their past relationships failed due to their intimate partner being abusive. This history of false allegations can often easily be traced back to their first relationships.

The honourable Justice cites the following case law which is also very interesting for establishing the above two positions on "abuse" / "domestic violence":

Quote:
[11] The mother argued strenuously that the father has been abusive towards herself and Aniss and is therefore disqualified from being the custodial parent. A useful discussion about domestic violence is found in L. (N.D.) v. L. (M.S.) 2010 NSSC 68 (CanLII), 2010 NSSC 68 (CanLII). At para. 34, Madam Justice MacDonald describes the range of conflict that may occur in a home and its legal implications for custody:
In order to understand whether domestic violence exists within a family it’s [sic] definition and effect must be stated clearly and comprehensively. Unfortunately the words “domestic violence” do and have defined a number of behaviours including isolated or rare incidents in a relationship – a push, a shove, rudeness, disrespect, and name calling all of which are unpleasant to those on the receiving end of these behaviours but which should not necessarily be accepted as an indication that the relationship requires judicial intervention. If these behaviours have no pattern of repetition and leave little if any lasting impact upon the recipient they need not be monitored with the same vigilance as will be the case when coercive control is involved. Counselling programs for persons who are “unpleasant” towards others may be quite different from those designed for persons who resort to abuse as a mechanism of coercive control.
This case law is recent and would be an excellent addition to anyone's book of authorities who are facing these common, emotionally coloured, and subjective false allegations of "abuse" and/or "domestic violence".

More on this case law as it involves the elusive "status quo" as well and an excellent breakdown of this as well. As identified in previous postings, the use of false allegations of "abuse" and/or "domestic violence" often comes hand-in-hand with an attempt to establish a "false status quo"...

Good Luck!
Tayken
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Old 12-30-2013, 07:54 AM
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The "Status Quo" and "Primary Caregiver" arguments broken down...

It all begins with...

Quote:
[5] Each parent argued vigorously that he or she was the primary care-giver for the children. The mother also argued that the father has been abusive toward herself, and on one occasion, toward the child, such that his ability to care for the children is in question. The father denies these allegations. He alleges that the mother is campaigning to destroy his relationship with the children. The court is placed in the invidious position of trying to weigh credibility of the parents based on conflicting affidavit material.
Here we see another attempt to rely upon the poorly worded elements of Rule 24.(4) to try and remove a parent from a child's life.

The justice goes on and cites the "Golden Rule" which governs how motions such as this one should be governed.

Quote:
[10] Each parent argued that he or she is the primary caregiver for the children and is entitled to have interim custody of the children based on the status quo. The importance of maintaining the status quo in deciding interim custody is highlighted in Kimpton v. Kimpton, 2002 CanLII 2793 (ON SC), 2002 CanLII 2793 (ONSC) at para. 1. Mr. Justice Wright observed:
There is a golden rule which implacably governs motions for interim custody: stability is a primary need for children caught in the throes of matrimonial dispute and the de facto custody of children ought not to be disturbed pendent lite, unless there is some compelling reason why in the interests of the children, the parent having de facto custody should be deprived thereof…. By status quo is meant the primary or legal status quo, not a short lived status quo created to gain tactical advantage.
The Justice goes on to note:

Quote:
[14] As I have noted, each parent has argued strenuously that he or she is the primary caregiver for the children and therefore he or she should have interim custody of the children based on the status quo...

[15] I have concluded that, over the course of their young lives, the children have been cared for by both parents such that neither one has been the primary caregiver. I am drawn to this conclusion by the evidence of third parties who have been in a position to observe the parties as well as by the evidence of the parties themselves.
Affidavits from Friends and Family

As I often lament on this site, the affidavits from 'friends and family' are often of little use and are disregarded. In fact, there is a pattern of behaviour which one should be mindful of in that the highly conflicted party often collects the most useless affidavits from friends and family and submits them in a family law dispute. Affidavits filled with the common set of "hearsay" nonsense that justices reguarly disregard. What this honourable Justice does is clearly articulates this FACT in case law...

What the justice wants is affidavits from third parties who have seen the parent-child relationship. Not affidavits filled with recitals of hearsay from the litigants about how awful the litigant is...

Quote:
[16] Not all of the affidavits filed by third parties are helpful. Person_A, a friend of the mother, described seeing the mother perform housekeeping chores and cooking when she visited at the family home, but it appears that her contact was primarily with the mother, often outside the home in the absence of the children. Thus, her opportunity to observe the parent-child interaction was limited. Likewise, the affidavit of a nurse practitioner, Person_B, is not particularly probative. He has known the mother through work for approximately three years but his contact is largely work-based. Much of his affidavit consists of hearsay evidence from the mother. These affiants reflect that the mother expresses commitment to the children and that they are important to her.
The justice does outline which affidavits (witnesses) were helpful:

Quote:
[17] More helpful are the affidavits of the parents of the children’s friends. These individuals have had a better and more consistent opportunity to observe parent-child interaction, often over a period of years. For example, Person_C described meeting the mother at the children’s school, gymnastics lessons and at sleep-overs to which her son was invited. She describes the mother as a devoted parent and observed the children to be “happy, confident, relaxed and attentive” in their mother’s care.
The justice also outlines that the court would rather have an affidavit rather than a letter attached to an affidavit from a witness but, do to a concession by the mother to them being a fact they were allowed and considered:

Quote:
[19] A statement from the child's hockey coach confirmed that the father was in attendance at the child's games, practices, and functions during the 2010-2011 season, often with the other child in tow. It would have been preferable that these statements had been sworn, rather than appended as exhibits to the father’s affidavit. Nevertheless, the mother concedes that the father takes the child to hockey practice.
In all, I count 11 different witnesses who submitted evidence in this matter that the justice breaks down. Those who are relying upon third parties should really review this case law to get a better understanding on how the evidence needs to be presented... and by whom.

This one sounds like it has a very large continuing record already...

More to come...

Good Luck!
Tayken
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Old 12-30-2013, 08:07 AM
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Past Conduct Relevant to the Ability to Act as a Parent (Rule 24.(4))

I am not going to post paragraphs 33 through 57 where the justice breaks down some of the examples of the allegations of "abuse" that the mother is making against the father. They are all common patterns that are almost "textbook" in nature.

But, one should consider the following:

Quote:
[58] I accept that the home environment is turbulent and stressful. At times, there has been violence. There have been many nasty arguments. All conflict has a negative effect on children. However, I am not persuaded that, on the evidence before me, the father has behaved with violence toward the children.

[59] It is probable that the mother’s very negative view of the father has prompted her to undermine his parenting and demean him to the children. Her affidavits contain demeaning language. Her vitriolic perception of the father has a negative impact on her ability to parent and interferes with the children’s ability to have a relationship with their father.
As Mr. Willy would say... Thats a BAM.

As I warn people... The vitriolic perception of the other parent can be judged against them. This is a case where a justice has done just this and on the balance of probabilities came to a conclusion...

The conclusions:

Quote:
[74] On an interim basis, the father shall have custody of the children. In order not to disrupt the children, he shall also have interim exclusive possession of the matrimonial home and contents. The mother has the income to afford adequate alternative accommodation suitable for the children but she will need some time to locate it. The mother shall vacate the home no later than ten days from the release of these reasons.
The justice also does note (which is also VERY important):

Quote:
[77] The children need frequent and consistent contact with their mother in order to benefit from her nurture and to sustain their relationship with her. The mother shall have the children two overnights each week, with one of these periods to fall on the weekend plus an equal sharing of statutory and school holidays. If the parties cannot agree on the particulars of this arrangement, I may be spoken to. Communication between the parents shall be by e-mail or text messaging, except in cases of emergency.
Good Luck!
Tayken
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Old 12-30-2013, 01:20 PM
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Thanks for the informative posts Tayken!
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Old 12-31-2013, 01:17 PM
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It is great to see this justice taking the time to break down yet another complicated, high conflict case, and dissect it to get to the truth of the matter.

Especially for an unrepresented target of abuse allegations, it can be overwhelmingly difficult to overcome the stigma of these allegations and press for your rights for equal or greater access.

Nice find, Tayken, and your summary of the case is appreciated.

The abuse allegations are familiar territory for me, and this case does help me better establish how I will present my evidence and third party witnesses, to contradict the useless affidavits of my ex and their friends. This case will be part of my book of authorities for sure.

It will be interesting to see if the above noted case goes to trial, and how it pans out for the parties.

Thanks again!
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Old 01-03-2014, 07:45 AM
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Tayken, Again you have really put up quality thought provoking real as it is going through the courts real info that I have actually used here, reading many times - discovering some very informative papers on the subject of BPD, NPD and the connection with the HAP Parental Alienation "activities. I appreciate the documents I have used to help me absorb what was proclaimed as possibly the most significant negative impact an by far and large the underlying issues with respect to my personal medical issues and my life's struggle:

"Trying my very best to SURVIVE and LIVE with my increasing severe chronic pain, the chronic depression that so often accompanies the former and as Mr. William Eddie describes what may be fairly defined as "The futile attempt to defend oneself against the damage and psychological harm perpetrated against our children and myself". Admittedly I always knew my medical issues left me in no position to stand up against the onslaught of "Everything under the Sun" that has been thrown our way. I early on recognized her use of the children as pawns - even got her to admit this - and not my intent, with the kids present.

So as any who have followed my often, "out of my mind rambling on", more often an issue of trying to put into words that which was killing me, the doctors knew was killing me and sadly worse of all would be the damage her lies and actions would cause an already strained relationship between dad and the kids. But my extensive medical evaluation was done for my benefit to attempt to uncover the rapid decline in both my physical and psychological state.

It was a very difficult and emotionally depleting/ draining event for somebody in my position but I gave it my all and I still am quite taken aback (ok very disturbed) by what these specialized doctors, psychologists and mental health care "caseworker" declared after fighting this for so long, nearly giving up MY children because I just couldn't handle the emotional strain, I could see how the kids were being torn apart and I adopted the better for all as my ex would just not stop bringing them into their parent's business (which is simply the taking responsibility for our individual decisions and simply come up with a separation agreement)and getting on with the divorce.

I was so relieved, even though it was not expected to hear what these doctors had to say: I wasn't loosing my mind, what my ex was doing was wrong and her refusal to just move on and her continued lies and sucking the kids and more into this divorce was wrong, then they went on to explain how wrong, that it was child abuse of the worst kind...... But I am also stuck on what they described as to the real damage being done to our children and their worry that they are 100% right in their assessments.

Now I get to realize that there really is nothing I can do about her continuing to do what she is doing - more so it seams that even though there is some solid evidence of her activities, that I as her target will never be free if I chose to stay active in my children's lives - and the courts and the judge's are more than likely to let this continue than face the reality and that is my ex's plain refusal to accept any responsibility for the actions she has taken all these years totally of her own accord being specific to when I did get really sick (I shall just leave it as that) the last few years of the marriage. I just find the whole mess so hard to swallow - I guess that is my post as the victim of the pointed attacks of an ex who has done so much harm - to all.......
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Old 02-03-2014, 10:10 PM
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you should not use people's name in this forum. it does not help in anything. this topic should be deleted.
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Old 02-03-2014, 10:19 PM
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The only names I see here are references to articles by justices. What's your point health?

ddo|1 is a long-time poster who has expressed his personal opinion on his situation. The only names I believe he has ever used is that of his beloved dog who died last year.
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Old 02-03-2014, 10:33 PM
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He can use the case law and numbers but i do not believe that using names are relevant to anything.
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Old 02-03-2014, 10:39 PM
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Quote:
Originally Posted by health View Post
He can use the case law and numbers but i do not believe that using names are relevant to anything.
Oh you mean the CanLII links? Well, that's the price people pay for going to court. Their names and situations become public, and their cases can be used as legal precedents by other people.
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