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  #11 (permalink)  
Old 10-20-2012, 01:45 PM
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Originally Posted by wife#2 View Post
Thanks for this post about emergency motions. It is interesting to me because my husband has been to 2 in the past 2 years, neither of which met this criteria (as far as we can tell). I would love your opinion on the situation, as well as to help anyone in a similar situation. I find often in this system you can do all the research you want, consult with lawyers, but in the end, complete opposite. As far as we can tell from being in court repeatedly for the past 2 years, it all depends on the judge you get, which is why this system is completely broken!
In Aug 2011 my hubby's ex moved. Desite my hubby sending emails requesting that they discuss her move and the child (boy, now 10) school for the following year, the ex refuses to tell us where she is moving. The child is crying (no lie) all summer to us, confused what is happening. Litterly asking us where mom is taking him. So, one day after she moves (Aug 17) and 2 weeks before school, she emails hubby to say where she moved (30 min away) from both current school and us (we bought house 2 blocks from son's school). She tells him which school she wants him to attend in new neighbourhood and tells him to 'co-operate'. Access at this time is approx 45% hubby, 55% ex (temporary agreement, court signed). So of course hubby refuses this. Child has been in same school since kindergarden, 2 blocks from us. Ex calls immediate 'emergency' motion. 3 days before school, court. For once in 2 years, we win!!! Child stays in school near us and judge changes schedule to 50/50. Also orders OCL at our request. Costs are still to be determined in this matter.

Flash forward one year. OCL does their report over the fall/winter. Unfortunately, OCL recommends child primary residence be with mother and change schools to her location (I can write a 10 page agruement over this, but will try to stay on topic). Will just say that the only reason OCL gives is that hubby works shifts, and this can be confusing to child (BS, and we think extremely discrimatory against shift workers, but thats another topic for another time!) So OCL report is out in Feb. Our lawyer (who we use for advise, not court, can't afford anymore!) tells us they will have to have a case conference on this matter. So we wait. Ex and her lawyer know hubby is against new school or change to access. Aug 2012, ex calls 'emergency' motion to change school and access based on OCL report. No case conference, no nothing. We consult 2 lawyers and do a ton research, all seem to say status quo is never changed on an emergency motion. Needs to go to trial, need to have case conference, etc. This is pointed out in our affidavit, as well as that there is no harm at all to child to stay in this school until a proper trial, case conference, whatever.
End of story goes, ex wins, change of access from 50/50 to 30/70. Change schools. And worst even yet, awards her costs at $3000. Were we wrong to not just agree with OCL report? What happened here? Thanks all.
We recently went through something similar, except we were the ones moving out of province (work related, no choice), my step-son wanted to move with us. The son had to stay with the mother until the OCL/"social worker" made a decision. So for months the son was being told by the mother that if he moves, she can't afford her apartment anymore, etc, etc. So basically in the end, the son (who was almost 12 at the time) said he didn't care where he went. So based on this, the OCL and their so called social worker said he would stay with mom. There was a case conference with us, but there was no report done up by the OCL/social worker, they told us they will only do a report if it is going to trial. We were told if it went to trail (by our lawyer) that we would lose, judge doesn't usually go against the OCL/social worker, and that we could end up paying his ex's costs. Since we couldn't afford our own lawyer's fees we didn't go further. The system does favour the mother in most cases.

I don't understand why the case conference was not set up. Was the OCL not completely finished with interviews, etc?

I did find this whole process very confusing. I don't know if I helped you, but thought maybe hearing our story might help somehow??

I think you are on to something when you say it depends on the judge, unfortunately. The system is broken.
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  #12 (permalink)  
Old 10-20-2012, 02:11 PM
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Originally Posted by Unevenplayingground View Post
There was a case conference with us, but there was no report done up by the OCL/social worker, they told us they will only do a report if it is going to trial. We were told if it went to trail (by our lawyer) that we would lose, judge doesn't usually go against the OCL/social worker, and that we could end up paying his ex's costs. Since we couldn't afford our own lawyer's fees we didn't go further. The system does favour the mother in most cases.
1. The cogent and relevant evidence to that "truism" being complete and utter bogus claim to make as an excuse can be found in the following case law:

Date: 2011-11-09
Docket: F-2172/09
URL: CanLII - 2011 ONSC 6451 (CanLII)

Notable quote from this very well cited case law:

Quote:
The Respondent was one of the most skilled and well-prepared self-represented litigants this court has seen. He was meticulously organized, and consistently demonstrated a working knowledge of the relevant provisions of the Children’s Law Reform Act, Family Law Act, the Courts of Justice Act and the Family Law Rules. Under cross-examination he was responsive but unflappable. His own cross-examination of the Applicant and the OCL social worker was respectful, understated – and at times devastating.
Quote:
393. Under questioning Mr. Drouillard acknowledged a couple “truisms” well known among lawyers, judges, social workers – and frequently litigants themselves.

394. The first is that “status quo” is important. Perhaps the first piece of legal advice separated parents get is that temporary arrangements often come to be self-perpetuating. That’s why parties work so hard to stake out their turf; create patterns; and obtain favourable temporary (or even temporary-temporary) orders.

395. The second truism relates to the simplistic correlation between “joint custody” and “conflict”. Although obviously a gross oversimplification, many parents come to perceive that if someone wants joint custody they have to be able to get along with their estranged partner. The obvious corollary: if you can’t get along; if you can’t communicate; if there’s lots of conflict, then joint custody is unlikely to be imposed.

396. The OCL social worker fully acknowledged that separated parents commonly share these stereotypical perceptions. While Mr. Drouillard testified that social workers preparing assessments and section 112 reports try to be mindful of strategic behaviour by parents, in this case he appears to have done virtually nothing to investigate the extent to which either party was manipulating the system for strategic reasons.

397. Mr. Drouillard described the relationship between the parties as being "very high conflict". He said each party made numerous allegations about the other. Things were particularly bad whenever the parents had direct contact. He said some of the conflict was "situational" in the sense that custody litigation represents a time of high emotional crisis for both parties, and they were likely each behaving at their worst. But he doubted the conflict will end when this court case is completed. He said that’s why he ruled out joint custody (which he mistakenly believed the Respondent was seeking). That’s why he recommended sole custody. And with the mother having the status quo, that’s why he recommended sole custody to the mother.

398. Just like those “truisms” would have predicted.

399. During questioning, the Respondent expressed frustration that the social worker simply accepted the Applicant’s numerous allegations, without making any effort to determine if they were true. Mr. Drouillard responded that he did not even try to make factual determinations as to who did what. He was simply summarizing the fact that numerous allegations were being made, and this level of conflict impacted on parenting.

400. The Respondent suggested that by simply listing allegations rather than investigating them – and then reporting many more of the Applicant’s complaints than the Respondent’s explanations – the social worker never really developed much insight. In the Respondent’s view, the section 112 report told us what we could just as easily discern from the size of the court file: these people fight a lot.

401. The Respondent challenged Mr. Drouillard. Why didn’t he dig deeper? Why didn’t he look into the allegations? The timing? The veracity? Inconsistencies? Why didn’t he distinguish between allegations and false allegations? Did it make any difference if people were acting in good faith – or bad? Do deceit and manipulation tell us anything about parental judgment? Did he even consider whether either party might have a motive to lie or promote conflict? Were there signs of parental alienation? Was it necessary for Maxeem’s world to be so terribly disrupted?

402. How was Maxeem affected? And how is he likely to be affected in the future?

403. It would appear that Mr. Drouillard spent little or no time asking any of these questions.
Suffice to say... You should read the case law from the link to see what the final result was on prior to "believing" that no judge goes against the OCL... That truism died many years ago with the hole "truism" that mothers always get sole custody.

Key point. Dedicated, educated and good parents are who get sole custody of their children. NOT GENDER!

2. No substantive issue can be ordered at a case conference and whatever you ended up with as a result of the case conference was agreed to on CONSENT. So you consented to moving away and not moving to trial for the child's best interests to be actually determined by the court.

Quote:
Originally Posted by Unevenplayingground View Post
I don't understand why the case conference was not set up. Was the OCL not completely finished with interviews, etc?
You should have went to trial if your evidence for the move being in the child's best interests was as good as you state often in your correspondence rather than consenting to something else you didn't agree with at a case conference. You were under no legal obligation to consent nor could a judge at a case conference order against you.

Quote:
Originally Posted by Unevenplayingground View Post
I think you are on to something when you say it depends on the judge, unfortunately. The system is broken.
I disagree 100% with the above statement. The system is not broken. Litigants fail to understand the system, educate themselves, throw away their rights in "fear" at case conferences and don't bother to invest any personal time in understanding the basic fundamentals of what defines a child's "best interests" before the court.

For the other parents that actually do... Actually read the link provided in this response in full to see the "truth" of what happens before the Superior Court, Family Law quite often.

Good Luck!
Tayken
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  #13 (permalink)  
Old 10-20-2012, 02:34 PM
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Tayken, what about my case? I really want to know your opinion. And trust me, we educated ourselves a lot, which is why we were very surprised at the outcome. Also, part of the 'fear' you say people give into is based on constantly being threatened with a worse outcome and court costs! We felt we had every right to defend ourselves and push for 'status quo'. We gave numerous reasons why we felt it was in the child's best interest to stay 50/50 with both parents, or more with us do to his school being in our neighbourhood. My husband showed his last years work schedule and the literally dozens and dozens of shift changes he had made so that he was actually almost never, ever in the past year working while he child was in our care (the main complaint of his ex, which was totally untrue, and we proved it). None of this seemed to matter, or so we feel. So truely, I want people's opinions. What do think?
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Old 10-20-2012, 03:02 PM
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Uneven, I understand your situation. Personally, I think dropping it was a good idea. I find it would have been nearly impossible for a man to prove the child should be with him, change status quo, against OCL, and a change of province to boot! Im sure you would have lost, and had to pay costs.
Also, I completely understand about the child changing his mind on where he wants to live. Exactly same thing happened to us. Child wanted to be with us for over a year. The exact week the child met OCL SW, starting acting completely different. Over the course of a few weeks, child changed completely. He went from calling his father every single day while he was at his mother's house, to never. He started calling mom every single day from our house, never had before (or extremely rarely). Starting telling dad and me, 'I'm no longer comfortable when dad works'. (funny, the ex's main complaint!). When we spoke with child he started crying, said, and I quote, 'I'm upset over the reason the OCL worker is here, but I can't talk about'. Later he tells us that his mother, grandma, brother told him he must call everyday because 'mom cries everyday when I'm not there'. I can go on and on with stories like this. We told the OCL all of this, as it was happening at the time of their investigation. His response, 'child often act differently when someone new is in their life'. Thats great, thanks. Also, OCL did not put any of these, or our many other concerns in their report. Was a mess.
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  #15 (permalink)  
Old 10-20-2012, 03:26 PM
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Quote:
Originally Posted by wife#2 View Post
Uneven, I understand your situation. Personally, I think dropping it was a good idea. I find it would have been nearly impossible for a man to prove the child should be with him, change status quo, against OCL, and a change of province to boot! Im sure you would have lost, and had to pay costs.
Also, I completely understand about the child changing his mind on where he wants to live. Exactly same thing happened to us. Child wanted to be with us for over a year. The exact week the child met OCL SW, starting acting completely different. Over the course of a few weeks, child changed completely. He went from calling his father every single day while he was at his mother's house, to never. He started calling mom every single day from our house, never had before (or extremely rarely). Starting telling dad and me, 'I'm no longer comfortable when dad works'. (funny, the ex's main complaint!). When we spoke with child he started crying, said, and I quote, 'I'm upset over the reason the OCL worker is here, but I can't talk about'. Later he tells us that his mother, grandma, brother told him he must call everyday because 'mom cries everyday when I'm not there'. I can go on and on with stories like this. We told the OCL all of this, as it was happening at the time of their investigation. His response, 'child often act differently when someone new is in their life'. Thats great, thanks. Also, OCL did not put any of these, or our many other concerns in their report. Was a mess.
It is a really frustrating process. We would not talk about the case with my step-son. The only thing we would ever say is that he had to be clear on what he wanted and it is ok if he wanted to stay with his mom. We didn't like it but agreed that he was almost 12 and he can communicate to us if there is a problem. We knew that he was being manipulated beyond belief by the mother. Keep in mind, she isn't able to respond to this, so you only have my word on the events. We have had him call his mother when he arrives with us so (so she knows he got here ok) she doesn't answer the phone, then almost a week later calls to yell at him for not calling. There is a lot of manipulation on her part, but after this whole ordeal we are exhausted. They system failed us (in our opinion only). We thought we were prepared, we thought as long as we told the truth when giving our reasons that his son would make the move. Another thing is, his son always said he wanted to move with us, he was even the one that told his mother that. It took a lot of guts for a kid to say that to a parent, and through this whole experience, he learned he didn't have a voice. Now in the end, we were told by the OCL/social worker he said he didn't care where he lived. We have never asked him, because we don't want to put him through that.

I just feel like being a woman helps, your lawyer, the OCL/social worker you get, the judge you get if you go to trial, it all comes into play. We also think the more deceitful you are can really help. We played fair and lost. No, this isn't everybody's final outcome, but we definately feel the system on a whole failed us, and that as much as we did try, we also were not educated enough, but that was why we hired our lawyer. We knew we had no idea what to do.

When all is said and done, I am still confused on the process.
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Old 10-20-2012, 03:37 PM
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I feel the system has actually failed my step son. Again, would have to tell you over 2 years of stories etc., but in the end, thats what makes me most sad. Happy to discuss on another post, but for now, back to original topic!
Emergency Motions. In everyones opinion, was my example really an emergency?
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Old 10-20-2012, 03:44 PM
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Originally Posted by wife#2 View Post
I feel the system has actually failed my step son. Again, would have to tell you over 2 years of stories etc., but in the end, thats what makes me most sad. Happy to discuss on another post, but for now, back to original topic!
Emergency Motions. In everyones opinion, was my example really an emergency?
What was the reason the ex put down in order to even request the emergency motion? Were you advised of that?
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Old 10-20-2012, 03:58 PM
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Nope! Only 'emergency' was that school was to start in 2 weeks in both cases, both years.
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Old 10-20-2012, 04:06 PM
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Nope! Only 'emergency' was that school was to start in 2 weeks in both cases, both years.
I'm guessing that the motion was allowed that the court allowed it to be considered as an emergency.

It just seems so odd because there are other threads on here where one of the parents tries to move and this goes against the person. The parent that pulls this stunt can sometimes be forced to move back to the original area. You may want to do a search on those threads and see if anything is similar. I just don't understand why the court allowed her to change the schools on the children.

What was her reason for moving? You may have explained this, sorry if I am asking you to repeat info.

I'm sorry I don't have more to add.
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Old 10-21-2012, 12:36 AM
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Quote:
Originally Posted by Tayken View Post
1. The cogent and relevant evidence to that "truism" being complete and utter bogus claim to make as an excuse can be found in the following case law:
Quote:
Originally Posted by Tayken View Post

Date: 2011-11-09
Docket: F-2172/09
URL: CanLII - 2011 ONSC 6451 (CanLII)

Notable quote from this very well cited case law:





Suffice to say... You should read the case law from the link to see what the final result was on prior to "believing" that no judge goes against the OCL... That truism died many years ago with the hole "truism" that mothers always get sole custody.

Key point. Dedicated, educated and good parents are who get sole custody of their children. NOT GENDER!

2. No substantive issue can be ordered at a case conference and whatever you ended up with as a result of the case conference was agreed to on CONSENT. So you consented to moving away and not moving to trial for the child's best interests to be actually determined by the court.



You should have went to trial if your evidence for the move being in the child's best interests was as good as you state often in your correspondence rather than consenting to something else you didn't agree with at a case conference. You were under no legal obligation to consent nor could a judge at a case conference order against you.



I disagree 100% with the above statement. The system is not broken. Litigants fail to understand the system, educate themselves, throw away their rights in "fear" at case conferences and don't bother to invest any personal time in understanding the basic fundamentals of what defines a child's "best interests" before the court.

For the other parents that actually do... Actually read the link provided in this response in full to see the "truth" of what happens before the Superior Court, Family Law quite often.

Good Luck!
Tayken
______________________________

Insightful read - thanks for sharing Tayken.

In my opinion, this case is certainly worth the read, and is highly pertinent addressing many issues in this thread.
Like a good movie, I won't spoil the ending...

Wanted to draw attention to The Order...
specifically:

1. OFW is being ordered unless both parties agree otherwise in writing.
2. Costs seemingly haven't been raised as a claim, and the door is being left open to arrange a claim for costs (presumably by party on balance who "won" more of the case).

569.Regular Communications: Unless both parties agree otherwise in writing, all ordinary communications shall be in writing using the Our Family Wizard website (the cost of which is to be paid by the Respondent, until the Applicant obtains employment income, at which time the cost shall be shared in proportion to their respective incomes). If that website is no longer available, the parties shall use e-mail.

570.Urgent Communications: For anything of a truly time sensitive or urgent nature, the parties shall call or text and a response shall be provided as soon as the parent receives that communication.

603.Other Claims: All other claims, except costs, are dismissed.

606.Residual Issues: Apart from the issue of a possible redetermination of child support, either party may arrange further time to address any other issues, including costs.
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