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Old 05-11-2013, 11:48 AM
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Default Legal “Truisims” Exposed?: The Emergency ex-parte Motion in Family Law

Legal “Truisims” Exposed?: The Emergency ex-parte Motion in Family Law

Welcome to my first edition of Legal “Truisms” Exposed?.

This posting is exploring the obligations of an Applicant when filing an “emergency” ex-parte motion in Family Court. Although the case law for which I review and rely upon originates in Ontario this in my personal opinion is a common expectation that could hold true in any Canadian court jurisdiction in Family Law.

“Truism” Defined

The Honourable Mr. Justice Pazartz first identified the use of the term “truism” and I attribute the use of this term in case law where an Office of the Children’s Lawyer (OCL) social worker “acknowledged a couple “truisms” well known among lawyers, judges, social workers – and frequently litigants themselves.”

Two “truisms” were identified in this case law by Justice Pazaratz:

1. 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.

2. 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.
I hypothesize that both truisms carry equal weight when considering the conduct of a moving party when bringing forward an “emergency” ex-parte motion before the court. Often, an “emergency” ex-parte motion is brought forward for the sole purpose of establishing a favourable “status quo” for the moving party (“truism” #1). This conduct is often done to create “conflict” before the court and to damage the opportunity to establish “joint custody” by the responding party (“truism” #2).
The results of most orders from an “emergency” ex-parte motion generally including a restraining order against the responding party and/or a mutual restraining order against both parties which effectively ends “communications” between the two parties as “parents”.

Interestingly, Justice Pazaratz effectively puts assessors and the courts on notice that they are expected to, obligated to, and to address and seriously sanction this kind of strategic behaviour intended to create an false status quo and identifies that is often tantamount to child abuse explicitly stating:
Creating a favourable status quo through falsehood and misrepresentation is not just a matter of litigation strategy: It is often tantamount to child abuse. It goes to the heart of “best interests” considerations; Parental judgment; The ability to sacrifice self-interest for the sake of the child; Awareness of the child’s need to have maximum contact with both parents.

If past behaviour is a predictor of the future, assessors and courts have an obligation to address – and seriously sanction – common and predictable strategic behaviours intended to create an inappropriate status quo.
Applying These “Truisms” to Ex-parte Orders

The isolating factors of an emergency ex-parte motion and the impact on children due to the potential elimination of a parent and effectively ending parental communications should seriously be considered by any lawyer and their client prior to bringing forward this kind of motion. The impact can have a long and lasting impact on parental communications in the future. If brought improperly and only as a legal tactic (“truism”) may in fact be “child abuse” if we consider Justice Pazaratz’s position.

When a moving party brings forward an “emergency” ex-parte motion they are doing this in absent of the other party’s rights under the Charter to be present to defend themselves. A justice is asked to make an order solely on the “evidence” presented by the litigant bringing forward the request for relief. Rarely in Canadian justice is this allowable but, a pattern has emerged in which this is occurring all too often before our family courts and in 2011 the Honourable Justice Victor Mitrow addressed this growing trend in Family Law.

Case On Point?

J.A. v. O.G., 2011 ONSC 3302 (CanLII)
Date: 2011-06-14
Docket: F1455/08
URL: CanLII - 2011 ONSC 3302 (CanLII)

... continued ...
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Old 05-11-2013, 11:49 AM
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Beginning in paragraph 88 Justice Mitrow addresses explicitly puts lawyers and their clients on notice that they are equally responsible for their conduct in bringing forward an emergency ex-parte motion (my emphasis added):
[88]At all times litigants and their counsel must comply with the jurisprudence regarding ex parte orders.
In paragraph 89 Justice Mitrow relies upon already existing jurisprudence (Tomanec v. Tomanec, 1990 CarswellOnt 311) regarding this “growing trend” of “truisms” in the use of “emergency” ex-parte motions that many may possibly have lost focus of in their professional practice of Law and as “Officers of the Court” (my emphasis added):
I am compelled to make some general observations about the increase in attempts to use ex parte procedure in interim custody motions. Unfortunately, some orders are being granted on the basis of material which is flimsy and even deceptive.
I would have hoped that it would be unnecessary to remind counsel that applications for ex parte orders must be supported by affidavits of the strictest truth, making frank disclosure of all material facts. This has always been the law of Ontario…
However, in the circumstances I thought it was a useful opportunity to deal with the matter of ex parte applications, particularly in family law matters, in light of the number of these that are brought before District Court judges prior to Christmas, many of which on a full exposure of the facts should not have been granted nor, indeed, requested ...
Common sense should tell us many things in the law. For instance, it tells us that only under exceptional circumstances, and after a most forceful showing, should we sign an ex parte order. Too many needless judicial headaches have been occasioned by the improvident signing of ex parte orders.
Ex parte custody orders in family law cases undoubtedly give the successful applicant a leg up in the proceedings. That party's de facto custody is then supported by an order of the court, or the order has changed custody. There then follows the usual exchange of affidavits, in many cases cross-examinations on the affidavits and before long, months have [passed] providing a so-called "status quo" which is by intent without blemish.
..motions for relief without notice to the opposing party may seem especially attractive in interim custody matters because of the tactical benefit which accrues to a successful moving party. That being said, strict compliance with the Rules is of the essence because of the spectre of potential unfair advantage. It is improper not to set out clearly before a motions judge that, as here, the ordinary residence of children is not where the interim custody order is being sought.
In paragraph 90 of this case law, Justice Mitrow quotes Ontario Family Law Rules Annotated 2010 (Carswell):
Having regard to the very high duty of full and complete disclosure and complete honesty and frankness which falls upon a party moving for such an order, it should not be surprising that the failure to indicate a salient fact is a sufficient ground for setting aside a without notice order: Bursey v. Bursey (1991), 1991 CarswellOnt 1408, [1991] N.B.J. No. 385 (Ont. Gen. Div.). A person who seeks ex parte relief has an obligation to make full and frank disclosure of all material facts, even where some of those facts may not be helpful to the applicant’s position: Drayton v. Drayton (1995), 1995 CarswellOnt 2050, [1995] N.B.J. No. 2325 (Ont. Prov. Div.).
Justice Mitrow continues in paragraphs 91 through 93 this honourable Justice outlines in more details the obligations of the moving party to the matter, their counsel and even other legal professionals, whom may not be the solicitor of record, in advising the moving party (my emphasis added):
[91] Family law cases continue to be targets of ex parte motions. When faced with an ex parte motion and supporting affidavit material, a court must balance the rights of the parties, the safety of children or parties and all other exigencies before the court. In making an order as requested by a moving party on an ex parte motion, the court is forced to rely and place substantial faith on each affiant’s integrity and honesty in placing before the court full and complete disclosure. If it later turns out that an affiant has misled the court, then depending on the relief granted, the resulting fallout can be pernicious and can wreak havoc. This is particularly true where an ex parte order results in a child being summarily apprehended by police and placed with the other parent in circumstances where that should never have happened.

[92] The responsibility of ensuring full and complete disclosure to the court rests with the moving party. There is also a sharing of this responsibility by the lawyer representing the moving party to ensure that the [b]situation constitutes an appropriate case[b] to seek an ex parte order. Where a lawyer is not on the record, but is assisting a party in preparing material in support of an ex parte order, for example duty counsel, there is a similar obligation to take appropriate care to ensure that the circumstances justify the bringing of an ex parte motion.

[93] Lawyers must be vigilant in advising litigants as to the jurisprudence regarding ex parte orders.
Justice Mitrow concludes in paragraphs 94 and 95 what is better when there is doubt on what to do when considering an “emergency” ex-parte motion and what should be considered in the alternative (my emphasis added):
[94] If there is [b]any doubt or equivocation[b] as to whether the circumstances justify an ex parte motion, then it is [u]always better practice to serve the material[u], even if service is on very short notice, because at least on the return of the motion the court has all the parties present and the court will be in a position to make an appropriate order pending any adjournmentp. If a party fails to appear, then he or she cannot later complain about lack of notice.

[95] In the context of family law, it is difficult to imagine more devastating circumstances than police coming unannounced to a parent’s home to apprehend a child pursuant to an ex parte order in circumstances where it is later proven that the order was obtained on misleading or fabricated evidence. When this occurs, everybody suffers. The parent from whom the child is taken suffers. The child suffers. The public confidence in the administration of justice suffers.
As noted by justices cited in this posting the use of these “emergency” ex-prate motions to gain an upper hand in a custody and access dispute by establishing a false “status quo” is deplorable conduct. Not only on the part of the moving party but, any and all professionals whom have an obligation as an “Officer of the Court” who conduct these sharp practices by “litigating by ambush” in this manner.

Good Luck!
Tayken
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Old 05-11-2013, 02:22 PM
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This thread may also be of assistance to those reading this thread:

"Don't Panic" - What Defines Urgency Before the Court?

http://www.ottawadivorce.com/forum/f...e-court-13291/

Good Luck!
Tayken
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Old 05-11-2013, 07:22 PM
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Wlcome back, Tayken.

Your absence was certainly noted.
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Old 07-21-2013, 01:26 PM
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Default Great Post!!!

Great post! Must reading for a lot of people.
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Old 08-20-2013, 07:49 AM
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Hi All,

I came across a very interesting article. I am not one for the gender bashing wars and blaming a particular gender for the issues but, this article does outline a paragraph that I found rather interesting that is in-line to what a negative advocate lawyer would recommend to a client in a matter of a custody and access dispute.

Putting gender aside as Shaw v. Shaw and this case law demonstrates quite loud and clear that both genders equally try to leverage false allegations to gain an upper hand in custody and access disputes. The publicly posted case law that can be easily found in CanLII speaks to this. It is interesting to see public media "in the large" identifying the issue as well.

Vicki Larson: Are Men Society's Scapegoats?

Quote:
Many high-conflict custody cases don't start out that way, Farrell says, because most about-to-be divorced moms recognize that kids need their dads, too. But divorce offers a chance to start over -- maybe move closer to one's parents or to a new love, or relocate for a new job. If a savvy lawyer informs a woman that her ex could get equal custody, thus putting the kabosh on her plans, and then asks if she ever feared him, whether he ever cursed at her, called her names, raised his voice or screamed in a fit of rage, "I'm so angry at you, I could kill you" -- and what marriage doesn't have some sort of anger, yelling or threats? -- well, there's a false case of abuse in the making, he says. Divorces can become high conflict if a dad, realizing that his ex's plans may cause him to lose his kids and he doesn't want to lose them, cries, "No way!"
I have been looking for a source that articulated this pattern of behaviour. Warren Farrell, Ph.D articulates the issue but, it is unfortunate that it is gender identified in such a manner. As we have all seen and which is enshrined in case law, Shaw v. Shaw, men are equally capable of doing this too.

What I am concerned about, and as articluated in Shaw v. Shaw, is that there is a grey area of client-solicitor privileged where a crafty negative advocate solicitors can effectively use of a multi-page retainer and an emotionally distraught (anxious) client (male or female) can turn what should be a simple matter of settlement into a complete and utter nightmare by conducting themselves in a manner for which Warren Farrell outlines.

I cannot say that I am Warren Farrell's biggest fan at all nor do I endorse this article. What I am focusing on is the pattern of behaviour and the client-solicitor relationship being identified in the article.

The statistics of the article pushed to the side for the moment... The observation is interesting and does provide some insight into the question asked by those suddenly facing false allegations of "emotional", "psychological" and often "physical" abuse in their custody and access dispute.

1. It is quite telling to a justice when no credible witness or evidence is presented other than mere hearsay allegations (he-said-she-said) between the parties regarding "abuse" on an "emergency" ex-party motion.

2. It must be even more telling to a justice when the allegations are irrelevant to Rule 24.(4) ("violence and abuse") and are being claimed falsely as "abuse" on an "emergency" ex-party motion.

3. It also must be quite telling to a justice that despite everything alledged "to the truth" whom go through custody assessments with an assessor who is also unable to link the children's best interests to 24.(4) ("violence and abuse") and recommend 50-50 access and full joint custody that the allegations of "abuse" being made are "false".

What I am most concerned with is that the occurrence, as observed and articulated in case law, that "false emergencies" brought to the court may put people (men, women and most importantly CHILDREN) in dangerous situations.

If lawyers are not respecting the well established Rules and jurisprudence on what constitutes a necessity to bring an "emergency" ex-party motion prior to a case conference our system of justice will be (and has been) impacted in a negative way.

Those who bring improper "emergency" motions especially "ex-party" prior to conferences should be brought to the appropriate justice for doing so. These litigants and their negative advocate solicitors put those who are truly being abused at risk. It is not just the other litigant and their children whom they are harming with their conduct ("bad faith") but, society as a whole.

Would it not benefit those who are truly being abused to insure that litigants and their negative advocate solicitors are not "abusing" our justice system to assist their clients to establish a "false status quo"? So these litigants are able to "just to move closer to one's parents or to a new love, or relocate for a new job or city" because it is their "dream" or on their personal "wish list" to do so... and not for any of the false allegations they are putting forward in their Application before the court?

Good Luck!
Tayken
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Old 10-16-2014, 12:47 PM
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I found this really helpful. Thanks for posting this some time back. I wonder if there is anything that has updated "truisms" and "ex parte" since this was posted..

Climbing out of this legal nightmare has been an immense challenge.
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