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  #21 (permalink)  
Old 10-21-2012, 10:02 AM
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Originally Posted by wife#2 View Post
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?
Your information is limited, and written from your emotional perspective of the "facts".

Did the order result from a Trial, conference or motion?
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  #22 (permalink)  
Old 10-21-2012, 10:08 AM
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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.
You never could know this until you do as the above linked Respondent in the CASE LAW counter to the "facts" (your personal beliefs) you are trying to peddle as an "always case".

I can't really say if Unevenplayingground's *husband* whom is the father of the children in question and parent, would have *lost* their case. The disruption of a child's habitual residence is a difficult uphill battle. So, by moving and leaving (his choice) the parent already demonstrated to the court that as a parent they don't truly understand what defines a child's "best interests".

The better argument is that the leaving parent, short of having evidence that the other parent is truly abusive to the child and the child is at risk of serious harm and/or injury remaining with the other parent would have very little case... They could be a man, woman, gay, lesbian, straight and trans gender parents... It really doesn't matter. They will not be successful because it is not in the child's "best interests" to leave their habitual residential neighborhood just because one parent does not want to remain in close proximity to their children.

The real hard question... moving parents never answer is why move? Why move if it is going to impact the child's access to you? Is *your life* that much more important than *your relationship* with the child?

Good Luck!
Tayken
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  #23 (permalink)  
Old 10-21-2012, 10:15 AM
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Originally Posted by Tayken View Post
Your information is limited, and written from your emotional perspective of the "facts".

Did the order result from a Trial, conference or motion?

Hello Tayken, I take it from your response that you did not see my post from yesterday? It is the last one on page 1. It describes the 2 'emergency' motions we went through and the results. Just want your opinion on them.
I agree with your last post, it would be a huge uphill battle for the parent who moving out of province, which is why I said it was probably good to drop it, in my opinion anyway. Thanks!
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  #24 (permalink)  
Old 10-21-2012, 10:37 AM
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Originally Posted by Unevenplayingground View Post
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.
How did you "know". You are presenting a statement of "fact" then identifying it as a "subjective belief" in the next sentence. You countered your own evidence. I truly hope your affidavit material, testamony and statements to the OCL reporter were not delivered in this pattern.

You may want to look up 'emotional reasoning' on Google. This is a common pattern to "emotional reasoning". You may have some "emotional reason" to support your "belief" but, it may very well not be grounded in a cogent and relevant fact.

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Originally Posted by Unevenplayingground View Post
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.
Then you produce the phone records, and send a with prejudice letter attaching the cogent and relevant evidence to the fact you made the phone call. You do this identifying in your own incoming call record that the mother called you and outline the facts of the conversation in detail and ask that the other parent not conduct themselves in this manner in the future.

Through the application of cogent and relevant evidence you:

(a) establish the call happened using third party documentation from the service provider that actually serviced the call.

(b) establish that the other parent called x days after the incident and raised it as an issue and inject the question why it took so long if it is so important.

(c) that the child is safe, happy and shoing no signs of distress.

(d) the other parent called on on date and time for a duration of X minutes to dispute the fact as established in (a).

(e) you request that this conduct no longer happen and for all communications to happen through the immutable and third party managed parenting system known as Our Family Wizard.

You DEMONSTRATE with COGENT AND RELEVANT EVIDENCE that the incident did happen and that the other parent called you weeks afterwards and is trying to create conflict where no conflict should exist.

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Originally Posted by Unevenplayingground View Post
There is a lot of manipulation on her part, but after this whole ordeal we are exhausted.
No police, no CAS, and you are exhausted? For some reason the Respondent in the case law already posted had over 10 police incidents called on him and well, he got through trial (17 days of it!)...

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Originally Posted by Unevenplayingground View Post
They system failed us (in our opinion only).
Or your lawyer failed to advise you of what should and could be done. As the moving party in the matter you have to meet and exceed the requirements set forth for a mobility case. Those are determined on the child's best interests... Not the parent's best interests. You can find a lot on mobility on this site and all the case law that is leveraged to make a determiniation of where a child should primarily reside.

The fact that your husband is the leaving parent makes it an uphill battle to establish it is in the child's best interests. And for good reason... A child's habitiual residential location should only be moved ON CONSENT or in their BEST INTERESTS.

Not because your husband got a new job, makes more money, married a new person, etc... IT IS ALL ABOUT THE CHILD'S BEST INTERESTS and the determination of the CHILD'S BEST INTERESTS.

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Originally Posted by Unevenplayingground View Post
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.
But, did you explain why it would be in the child's best interests? That is the only element of a mobility matter a judge can make a decision on.

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Originally Posted by Unevenplayingground View Post
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.
A child may say they want to be a astronaut at that age and then a doctor. Children do have a voice, your husband's child expressed it to the OCL and although the move may be in you and your husband's best interests ... It may very well not have been in the best interest of the child.

If the child's best interests were *THIS* important to you and your husband... You simple would not have moved. Simple fact. You would have made due with your situation (as adults) for the sake of the child in questions "best interests".

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Originally Posted by Unevenplayingground View Post
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.
The child doesn't realize what a move entails. New friends, new area, new sports teams, new school, new, new, new... This all poses a potential risk to the child's "best interests". The worst part being... Loss of the other parent. As the moving parents, you already demonstrated to the court and OCL that you were willing to leave the child. No matter what "reason" you give for you and / or husbands best interests as adults... I again state it is NOT about your best interests... But, the BEST INTERESTS OF THE CHILD.

Quote:
Originally Posted by Unevenplayingground View Post
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.
Gender doesn't matter. What matters is how you demonstrate yourself as a parent. If you are willing to uproot a child to a new area without consideration of the other parent and the child's relationship... Doesn't reflect on you as a parent quite well. Furthermore, it doesn't demonstrate the fundamental understating of what demonstrates a child's best interests.

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Originally Posted by Unevenplayingground View Post
We also think the more deceitful you are can really help. We played fair and lost.
You "lost" because you made family law a "win-lose" situation between the parties and failed to focus on the only real important person in the litigation... THE CHILD.... Who's BEST INTERESTS is all the courts can make a determination on.

The only winners and losers in family law are children. Parents are adult and should know better than to move away from their children's habitual residence and should not be going to court thinking they can "win" this.

Quote:
Originally Posted by Unevenplayingground View Post
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.
Your lawyer's first advice out of their mouth should have been:

You are going to seek a mobility decision before the court for a child. You have to establish based on facts why this is in the child's best interests. I will only represent parents who can prior to application bring cogent and relevant evidence that this move will be in the child's best interests, the only factor for which the court will rule on. Your husbands new salary, new home, and all the new opportunities for you and your husband are of no relevance to the court.

Here is some case law which is the determining factor on mobility matters as determined by the Superior Court of Canada. Please read this documentation prior to attending my office in full, write a small essay on why you think your matter is similar to this case law and bring the appropriate documentation to our next meeting demonstrating this.

Case law to read: CanLII - 1996 CanLII 191 (SCC)

If you lawyer, never gave you a copy of or told you to read that link... You got taken by your lawyer and this whole court battle was about making money for the lawyer and not resolving a problem that could be resolved with the assistance of the court.

Sorry to be so blunt. But, mobility is not something to go in to court with unless you have SOLID cogent and relevant evidence.

Good Luck!
Tayken


When all is said and done, I am still confused on the process.[/QUOTE]
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  #25 (permalink)  
Old 10-21-2012, 11:05 AM
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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.
Proper outcome and application of the "best interests" rules as defined under the Children's Law Reform Act.

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Originally Posted by wife#2 View Post
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).
What jurisprudence (case law) and evidence based medicine does the OCL clinical investigator cite in support of their recommendation. If none, then it is easily defeated in court. See the case law I posted in another thread and other case law reviews in a variety of other threads.

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Originally Posted by wife#2 View Post
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!)
Not very strong "evidence" to support a habitual residential move. I am assuming you are a caregiver to the child and avalible to the child when the parent is working. This weighs very high in court and you should present yourself as a "in loco parent" when the parent (your husband) is working.

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Originally Posted by wife#2 View Post
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.
And you have a court order preventing the change of the school as noted above in your statement.

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Originally Posted by wife#2 View Post
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.
Read this tread and all the links contained in these threads:

http://www.ottawadivorce.com/forum/f...n-stage-12974/

http://www.ottawadivorce.com/forum/f...azaratz-12452/

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Originally Posted by wife#2 View Post
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.
Was this heard on motion or at TRIAL??

You probably went into motion or trial without a proper Book of Authorities linked to your theory of the case. This happens to a lot of unrepresented litigants. There is so much case law evolving that even family law lawyers have no idea how the court is proceeding in jurisprudence.

The two links to other threads have incredibly powerful jurisprudence that could have upset what you experienced before the court. This is why I post this "stuff" to a public forum. So the public it serves can access it, find it and apply it to their matters properly.

If you have a publicly posted decision on CanLII please PRIVATE MESSAGE it to me and I can review it in more detail and provide some insight. I am not a lawyer, do not represent myself as a lawyer... I am just a nerd for jurisprudence and case law. Anything I say should be reviewed with counsel.

Last edited by Tayken; 10-21-2012 at 11:13 AM.
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Old 10-21-2012, 11:12 AM
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Thats what I'm saying, this was all decided in an emergency motion. My hubby even sited 'the rules' and that this did not follow 'procedural fairness' as set out in the rules (we did this research and consulted lawyers). Litterly, judge made decision and changed child's life, our lives, his ex's life completely in just 15 min! I just could not believe it.
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Old 10-21-2012, 11:16 AM
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Thats what I'm saying, this was all decided in an emergency motion. My hubby even sited 'the rules' and that this did not follow 'procedural fairness' as set out in the rules (we did this research and consulted lawyers). Litterly, judge made decision and changed child's life, our lives, his ex's life completely in just 15 min! I just could not believe it.
If made only on motion it is not "final" and you should bring forward your own motion ... But, do so after reading my other posting and the jurisprudence you should leverage. If the matter is going to trial then you can just put it all into your BOOK OF AUTHORITIES.

TRIAL is no walk in the park. Nothing is *FINAL* until trial or unless both parties *CONSENT*. Motions are "temporary" and can only become *final* if consent is provided or a very STRICT set of criteria are met in the judgement which rarely happens.

Also, if you don't understand what i just wrote into the paragraphs above YOU NEED TO HIRE A TRIAL LAWYER AND FAST.
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Old 10-21-2012, 11:17 AM
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[QUOTE=Tayken;112225]Proper outcome and application of the "best interests" rules as defined under the Children's Law Reform Act.



What jurisprudence (case law) and evidence based medicine does the OCL clinical investigator cite in support of their recommendation. If none, then it is easily defeated in court. See the case law I posted in another thread and other case law reviews in a variety of other threads.

Nothing at all. His report, in our opinion, was horrible. Our lawyer said it was one of the shortest, thoughless reports he had seen in his 15 years. Our lawyer said it makes no sense. He goes on about how both house holds are great, how child has great relationship with both parents and his step mom (me). Then, in the conclusion section, litterally just comes to the conclusion that child should live with mother and change schools.
His only agrument is to say that my hubby works shifts, and its not consistant for child, but then he also notes that hubby most often changes all his shifts so he is actually not even working when child is with us??? It really made no sense, and we were just shocked. Still are months later.
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Old 10-21-2012, 11:25 AM
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Originally Posted by Tayken View Post
If made only on motion it is not "final" and you should bring forward your own motion ... But, do so after reading my other posting and the jurisprudence you should leverage. If the matter is going to trial then you can just put it all into your BOOK OF AUTHORITIES.

TRIAL is no walk in the park. Nothing is *FINAL* until trial or unless both parties *CONSENT*. Motions are "temporary" and can only become *final* if consent is provided or a very STRICT set of criteria are met in the judgement which rarely happens.

Also, if you don't understand what i just wrote into the paragraphs above YOU NEED TO HIRE A TRIAL LAWYER AND FAST.

We understand fully. Here is our problem. While I am sure his ex would have gone to trial over this issue, we truely are, and have been trying to look out for the child's best interests. His school changes. It was ordered by the court 2 weeks before school. Not much we could do. We have no intention of going to trial over this, even though we believe we were right and OCL report was joke, etc., because we just don't think it is in the child's best interest to change schools AGAIN! It would be too confusing for him, and he has been through enough. While my hubby was very upset to lose time with him, now, a few months in, everything is working out and we just don't want to disrupt anything more for this poor kid. It should have been ordered to go to trial in the first place. Thats what we were told would likely happen, and in all our research ourselves, we thought this too. Even on this site, I have seen many people advice that a judge would not make such a drastic change based on emergency motion (unless of course, child was in danger). This was not the case here.
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Old 10-21-2012, 12:20 PM
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You wouldn't be changing schools again, you would be returning him to the school, neighbourhood, classmates and friends that he already familiar with.

If you were moving to a new town I would agree with you, but honestly, you are rationalizing to justify giving up the fight. I have been in court, I know how stressful and expensive it is, but I wouldn't give up a life raising my children over a false decision on an emergency motion.
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