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  #31 (permalink)  
Old 10-21-2012, 12:04 PM
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Part 1

[QUOTE=Tayken;112223]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.



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.



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!)...



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.



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.



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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  #32 (permalink)  
Old 10-21-2012, 12:05 PM
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Part 2:

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.



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.



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.



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][/QUOTE]
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  #33 (permalink)  
Old 10-21-2012, 12:21 PM
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Quote:
Originally Posted by Mess View Post
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.

I just can't see how thats in the child's best interest though? Ours, yes. Its not like he is currently crying everyday beging us to get him out of that school. He is adjusting. I can't imagine telling him he is changing schools again next year! Yes, he knows the kids and teachers here, etc, but still. It would break my heart, even though we would love it!
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  #34 (permalink)  
Old 10-21-2012, 01:46 PM
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[QUOTE=Unevenplayingground;112232]Part 1

Quote:
Originally Posted by Tayken View Post
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.



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.



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!)...



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.



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.



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".
I'm not sure why but all of my response is missing from this??
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  #35 (permalink)  
Old 10-21-2012, 02:06 PM
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Quote:
Originally Posted by Unevenplayingground View Post
Part 1



I'm not sure why but all of my response is missing from this??
Looks like an error with your quoting. As you can see, it only lets you quote the most recent layer of a post. If you want to respond to multiple parts of a quote, it's better to add more quote codes.
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  #36 (permalink)  
Old 10-21-2012, 03:14 PM
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Quote:
Originally Posted by Rioe View Post
Looks like an error with your quoting. As you can see, it only lets you quote the most recent layer of a post. If you want to respond to multiple parts of a quote, it's better to add more quote codes.
Thanks, i'm not techy enough!
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  #37 (permalink)  
Old 10-21-2012, 03:28 PM
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Tayken, i'm sorry this is going to be a bit confusing but the only way it would let me reply. I put numbers in front of each point, so you knew it would be a new point.

1. I know this because she discuss things. She would tell him if he leave to live with us, she will lose the cs from my husband, tax credits, etc. Then my step-son, who doubtfully would not come up with this on his own, would tell my mother-in-law because he was worried about his mother not having a place to live.
Another example is when the OCL made the recommendation that the child stay with his mother, my husband simply said to his son, are you ok with everything, the son said yes, and that was the extent of that part of the conversation. They continued to talk about other things, and then hung up. Within 3 minutes his ex called back screaming at my husband saying he was starting everything up again. That his son was freaking out crying because (they live in a small apartment and my husband could not hear the son in the background crying and freaking out, as she stated). He simply told her what he said, and then she yelled at him for another five minutes, and they hung up. We found out later, his ex calls his mother all the time, she told the mother that my husband told his son he was going back to court over this etc, etc, and that she had to console their son for an hour and a half. This was not true, so we advised her lawyer that for now on we would be taping the conversations. The child’s mother “looms” and includes herself in the conversations between my husband and his son. We have noticed since we said he would be taping this has helped. We don’t actually tape the conversations.
2. Yes, I do think there is probably some ‘emotional reasoning’, but when we presented what we had to our lawyer and the OCL/social worker, we gave them what we had, not what we suspected she would do, only what we knew she had done. This included police reports, emails, etc

3. We do have phone records of our phone number calling hers, but the phone company does not track her calls to us, with her without a phone number. We already called about this. The child’s grandmother (who keeps in contact with the mother, so that she can maintain contact with her grandson) was also there to witness this incident.

4. We didn’t think of calling her service provider, but thank you. I will call but I don’t think that the phone company will release her phone records to us, even if the call was to our phone. I will check
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  #38 (permalink)  
Old 10-21-2012, 03:28 PM
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Part 2

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6. I have to agree with you, our lawyer did fail us, I do consider her part of the system though.
7. My husband maintained the same residence since the day his son was born. The mother moved no less than 6 (moving in and out of different bf’s places, the last place she moved in by herself with child) times from the time the child was born to present (he is now 12). As a result the child had to get new childcare, and change schools. She was also going to move completely out of the area at one point with the bf she was with at the time. They broke up so she didn’t make the move; she had every intention of moving with the child. My husband has also maintained one job with the same employer for over 13 years, his ex, in 13 years. His ex in 13 years has had over 7 different jobs.
8. My husband is military, so it wasn’t a move for a new job/more money/married a new person; it was a move because the military told him if he wants a job he has to move. If my husband released from the military he would have had no income to support the child, I think in this case it was the best interest of the child to have the cs payment coming in. Basic needs first, are the best interests of the child.
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Old 10-21-2012, 03:29 PM
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Part 3

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10. I 100% disagree; we had a total of 5 kids to support, and no other job prospects. You can’t just “quit” the military, and if they agree us releasing (and they probably would, although, I have seen it go the other way) it would take at MINIMUM of 6 months.
11. I agree, with what you are saying that a child doesn’t realize what a move entails. This was something we tried to tell him, we tried to tell him it wouldn’t be a cake walk, that he wouldn’t just be able to go to his mom’s every couple weeks, hard to tell that to a child. We understand he can see up to the corner, but not necessarily around the corner.
12. No matter what we did, this was never going to be a “win” “win” situation. Our offer was for the mother to not pay cs to us, and that we would pay for transportation, Christmas, March break and at least a month in the summer for her visitation, with regular phones calls/skye in between.
13. This was a “lose” “lose” situation anyway you looked at it, for the child, the term “win” was the easiest way to describe the situation.
14. Unfortunately, We didn’t find out about CanL11 until it was all said and done.
15. No, please be blunt, I may not agree with everything you present to me, but it is always helpful, and allows me to think of it in a different perspective. Sometimes it sways my original opinion and sometimes it convinces me we were on the right track. Thank you, I honestly appreciate it.

I hope you can make heads or tails of this...

I'm sorry this is the only way it would let me post a reply!

Last edited by Unevenplayingground; 10-21-2012 at 03:30 PM. Reason: forgot info
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  #40 (permalink)  
Old 10-25-2012, 07:08 AM
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Quote:
Originally Posted by Tayken View Post
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
I believe unevenplayingground's partner is military, in which case it is highly probable that he was posted, against his will, to a position elsewhere because the Canadian Forces has a need for him there. Personally, I've been very lucky to have had the support of my chain of command to stay in the area to be close to my children but another sergeant in my unit was not. He got posted in from Halifax,a very long way from his kids, and he's definitely not happy about it.
I just want to emphasize the case by case specifics for moving. Military families have been at a disadvantage for years due to operational commitments, although I'm happy to see there is a change to address family needs in the CF while maintaining operational requirements. Just my two cents.
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