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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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  #11 (permalink)  
Old 04-30-2016, 12:52 PM
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Just an update here, arbitration has begun but will be moving to a panel with a family law expert co-arbitratror (to help our PC who is not an expert in family law), questioning, and a court reporter. Ex was making some very questionable claims in their opening statements so we decided to adjourn and convinced our PC that more formality was better. We found easily a half dozen sworn statements in their filing that would likely fall apart as misleading or even outright deceptions under questioning.

The religion argument as I suspected was a red herring - it should have been central to Ex's filing, but maybe was point #3. The primary focus is as it always was - the superiority of schools and environment of Ex's neighborhood. Ex has been tying to move D6's school and primary residence to Ex's house in the suburbs for 3 years now... this is attempt #3 (Ex's application has been dismissed twice with costs awarded to me).

We've never challenged this move directly as a violation of our parenting agreement (the new residence is in a different county than D6's stated residence in the court order), but this will be one of the pillars of our defense.

We're also going to make offer to settle that D6 can attend the current school or optionally attend a non-religious school in our school jurisdiction.

I doubt Ex will take it, this is not about D6's welfare, this is about power. Ex has now been manipulating D6 to say things like "I hate my school", and "I want to go to the other school, I will have better friends", and trying to use that in the arbitration proceedings as proof of "the wishes of the child". It really sucks. I don't want to badmouth Ex so I just tell D6, "Ex and I disagree sometimes. Ex is not always right. This is your school.".

Last edited by LearningToFly; 04-30-2016 at 12:56 PM. Reason: typo
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  #12 (permalink)  
Old 04-30-2016, 02:29 PM
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If the matter has already been decided then I'd consider going for summary judgement based on res judicata.

https://en.wikipedia.org/wiki/Res_judicata
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  #13 (permalink)  
Old 05-01-2016, 07:52 PM
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No material change in circumstance has come up. The other parent agreed to the enrolment of the child in the current school. That I am assuming was made ON CONSENT.

One thing that judges/arbitrators hate is when someone agrees to something and it becomes an order and they suddenly want to find some material change in circumstance to disrupt the status quo.

The major hill to climb for the other parent is the agreement that was reached and the resulting order. If the other parent didn't agree with the decision they should have appealed the decision. But, you would look like a total idiot appealing an order that they consented to.

The matter will not be ordered on the moral code that the other parent is relying upon. The arbitrators will have to fall back on case law and do a lot of research to come up with the proper decision.

If there was an agreement about habitual residential location of the child made (on consent) and the other parent broke that agreement without obtaining the necessary consent... The judge/arbitrators are not going to see the other parent as being reasonable.

In Ontario 9 times out of 10 if you are the moving parent you are stuck. There are parents driving all over Toronto, Durham, Hamilton and Peel because of stupid ideas of where they want to live versus where they should live in the best interests of their children.

There is case law (posted in my threads) regarding the reasonable time a child can spend in a car commuting back and forth to school.

The other problem you face is that an Arbitrator and even a Judge cannot make an order for a mutually located school unless the school board is made a party to the case. The boundaries of school districts were put in a place so parents couldn't shop for schools like this. You could walk out of all of this with an "order" that the school will not abide by because it is binding to you and the other parent... Not to them. They have their own Rules, Regulations, Bylaws and Laws that they are subject to.

I would recommend to you (and your lawyer) that the matter of the fact that the school district is not a party to the case and that existing boundaries set for by the school boards need to be adhered to. This means that either the other parent or your school district is going to be selected. If they chose something in contravention of the school board's ability to execute the order may be useful as toilet paper.

In a matter of "law" I am of the opinion the other parent has very little to stand on. Considering that there have been already 3 costs orders against the other parent. Does the other parent even realise how bad that looks on them?

Good Luck!
Tayken
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Old 12-02-2016, 09:38 PM
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A follow up to this old thread. D6 got to remain at her existing school, minimal costs were awarded in our favor. Wish Ex got a bigger costs award, but at least the outcome was relatively positive..

..Except, we're now getting word from the school that D6 is saying to her teachers that "Ex hates Jesus", and D6 is missing at least a day a week of school on Ex's parenting time. Apparently there are "appointments", but I have no knowledge as to what these appointments are - Ex books medical specialists or other doctors without informing me. Until recently that is, when Ex asked for my insurance to cover a particular specialist.

Ex claims this is exactly the same as how we take D6 for flu vaccines annually without Ex's consent.... Ex doesn't quite grasp the notion of "inform" vs "consent" (i.e. we inform Ex if D6 goes to a doctor, or gets a medicine, etc., just as Ex can bring D6 to doctors..... but Ex refuses to "inform" us ahead of time or even give us appropriate details afterwards!)

During parent-teacher interviews, it came out that Ex also has told the school administrators and teachers on numerous occasions that "D6 doesn't want to be here, she is just here because of a court order". The undermining continues. Sigh.

Any thoughts as to how to get Ex to, you know, actually bring D6 to school regularly and start informing us on what these medical appointments actually are?
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Old 12-02-2016, 11:56 PM
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Any thoughts as to how to get Ex to, you know, actually bring D6 to school regularly and start informing us on what these medical appointments actually are?
You are in a situation where if the other parent is in contempt of the order then it is time to file the motion and begin the process. As well, you are going to need to secure affidavit evidence from the above mentioned witnesses. A simple statement of "belief" made on behalf of one of these professionals is not going to be enough. You are going to need sworn statements about what the child in question is repeating in class.

If the child is in Grade 1 and misses too much school truancy officers will get involved. The missing of school isn't a huge issue really. The biggest challenge you face is the fact that the other parent is seeking medical advice in contravention of the court order. No doubt this is for nefarious reasons.

Generally HCPs will shop doctors to try and undermine an existing order:
Look see judge! I was right! The child has a problem!
The problem is that the clinicians involved need to be served the court order prior to their engagement. One way (in Ontario) to find out what doctors the child is going to is to request their OHIP history from the Ministry of Health and Long Term Care. Not sure how you make this request in AB but, I am sure they have a similar process. The report will give you every encounter detail, the encounter reason code (ICD9 which you can Google) and the full details of the clinician that billed the provincial plan. You can then go to each doctor with the order and request all the medical records.

This will piss off the other parent extremely because Doctors are usually detailed in keeping encounter notes. If the other parent has said anything stupid it will be documented in the encounter notes. Don't be demanding but, simply ask for the full copy of the medical records. If they refuse then go through the clinician's college to make the request. Generally doctors will hand them over (for a small fee) without any issues. Especially when they realise there is a court order and another parent. Often times they will simply refuse to treat further unless both parents are present.

Your leg work now is to gather the evidence in support of a contempt order. In fact, I would say you really need to motion for "sole custody" potentially if the other parent is putting the child in question's education and health and well being at risk.

What drives me nuts is that a teacher will witness this kind of parental manipulation and doesn't report it to the CAS. The statements you have quoted demonstrate that the child is at risk of emotional harm. You may want to gently recommend that they consider raising the matters to the proper authorities. I am sure they have a copy of the existing order and know there is conflict. They should be working to protect the child from conflict (aka EMOTIONAL HARM).

You probably have been keeping the long list of nonsense emails that the other parent has been sending in support of their possibly contemptuous conduct. That gets filed with your motion with the application. But, you should get the Affidavits from the professionals that have witnessed the child's conduct. That is hard. You need to tread very lightly when you bring a child's service providers (doctors, teachers, etc...) into the mix. So you may have to motion for an OCL-like entity or Section 30-entity to interview these witnesses rather than get them to prepare affidavits. They don't need to judge the other parent. Just simply say the child reported X Y Z on dates 1 2 3. Nothing more nothing less. (Apologies as I am not familiar with Alberta rules as well as Ontario.)

Read this article Your Social Worker - Gary Direnfeld, MSW, RSW prior to involving teachers and doctors. Let Gary be your guide on how to move forward. (Read the other articles.)

Clearly the other parent has not resolved the fact that they have had costs ordered against them and an order they don't like.

I do not recommend mediation or arbitration for this matter. It is too complex for any arbitrator to deal with and they are often too soft on this stuff. You need to bring this before the Queens Bench. Also, you need to request SUBSTANTIAL costs UP FRONT in your motion request.

You are dealing with an HCP who thinks they are "clever". They are not. They are going to walk right into a contempt motion and possibly losing joint custody. I don't think a judge would disrupt the access order from a 50-50 based one with the current absences from school. But... A judge would more than likely order the parent to take the child as a condition of purging the contempt. You won't put the idiot in jail... What will happen is that the idiot will have a pile of rules placed on their conduct. If they fail to purge their contempt then on the return of the matter after 6-12 months (or at the instance of a failure to purge) will order sole custody.

HCPs are rarely clever. They are generally idiots.

Good Luck!
Tayken
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  #16 (permalink)  
Old 12-03-2016, 12:24 AM
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Originally Posted by arabian View Post
If the matter has already been decided then I'd consider going for summary judgement based on res judicata.

https://en.wikipedia.org/wiki/Res_judicata
Hard to do. Even WD was advised against bringing a summary judgement for the upcoming trial. Judges hate to make custody and access decisions on summary judgement. They always end up in appeal courts. The only ones I see them do it on is CAS files where there is evidence of true abuse by the parents.

But, if the OP gathers the necessary evidence as if they are going to go for a summary judgement their contempt motion will be tight as a ducks bum bum.

The OP just needs to organise their rhyme prior to bringing the contempt motion.

Good Luck!
Tayken
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