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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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Old 05-28-2014, 07:54 PM
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Default LOA Gives you Wings

Hi I've never posted before but have been reading many posts...I've read lots of CanLii and lots of your posts here...its been an education.

I would like to tip my hat to a fellow member of the forum who coined the above phrase. He's a bit of a legend in my book...while he had a bigger uphill climb I believe I suffer the same major culprit. LOA is helping to fuel unnecessary litigation.

By way of introduction here is my situation:

- I have been previously married and have raised a boy jointly - now in teens 50/50 with my ex-wife ms#1. (no courts/no issues/very civil)
- Nobody involved has any criminal record of any kind

- Married Ms#2 5 years ago.
- My current wife asked for a divorce so we separated last year
- We have a child 4 years old
- We co habituated for three months (no issues)
- I asked (verbally) for my wife to get a lawyer - I retained one and passed on his contact info but she never sought council.

- wife moved out without a plan, no lawyer contact. While I was away on business - she just picked up and moved with the child to a city about 40m away by car

- turns out she went on full fledged social assistance based on a claim that I emotionally abused her with a verbal threat (which there is absolutely no evidence of and her story changes each time and she has mixed up the date it supposedly happened and the timing of the claim is most obviously suspicious). Fully subsidized housing, school, day care. She's worked every day of her life prior to this.

- in the following four weeks after moving out she shared access with me pretty much half/half. However the day it became apparent I was establishing 50/50 - she got very angry and told me I could not have him

- only one night a week and every other weekend

- she went inside called the police (they didn't want to get involved), I guess her lawyer didn't get back to her, so she called CAS.

- CAS shows up at my doorstep for an imminent threat assessment. Concerns that I abused the child (a bruise). Anyways it was obvious to the CAS worker in 5m there was no issue. CAS agent leaves saying: I have no problem with, I am more worried about the inconsistencies in the allegations being made. I have since recieved a full CAS report stating no concerns and it includes statements from indicating she called them out of frustration and she had no real safety concerns.

- Days after the CAS visit I am served with an ExParte Motion. Claim is emotional abuse (she dropped child abuse all of a sudden).

- my ex-wife (previous marriage) swears an affidavit saying in all the years she has known me...I've been never abusive to anyone, not in my character, great dad, we always work out every problem civilily. This is a women (ms#1) I have raised a teenage boy with 50/50.

- The exparte motion goes in my favour - judge awards 50/50 access. And that is how its been for a year. So there is an established status quo right now which is good. I know I am very lucky...many men facing exparte aren't so fortunate.

- So we've been in limbo every since. We had a case conference...their side didn't seem to budge - even in light of CAS report that said she had no reason to call and "mother has no conerns about safety of child in fathers care". Wife is still only willing to accept every other weekends and one night and wanted child support and spousal etc.

- so at the case conference I asked for sole with a fall back to shared 50/50.

- About a week after the case conference and a day after we asked for disclosure (a big list of info) - my wife went to the police to file a claim of abuse (verbal) with the police. This is after having been in front of a judge twice. The police ignored it but one positive out of that was that she stated the reason she didn't report it earlier was that she was afraid for her life...they asked why are you reporting it now...she says I no longer think he is a threat. (hmmm..doesn't that work in my favour regardless of whether the abuse was real or not?). If she isn't afraid of me? Why not share custody 50/50.

- OCL is now involved currently conducting an investigation.

We had a trial date set in June because the boy starts school in September. The OCL doesn't appear to be close to finishing. I don't think it is easy to get a court date over the summer. So now I am worried we are in for a total clash come September.

My other stress at this point remains - my wife is on Legal Aid - has no motivation to not go to trial. I am paying $400/hr and I'm in $20k. It costs her nothing...nothing to lose (except custody). I am supremely confident I win in court but I would really prefer not to go through all that expense.

Chances are the OCL report simply recommends joint. What stops her from just charging on with trial...fully funded?

I think Sole Custody works in childs best interests because I have extremely flexible work hours, can walk the him to school, get off work and pick him up...I run my own business so earn a decent income doing that...just extremely flexible - but that is of course if he's moved back to where I live/work. So if interm is sole custody residency with me. Then I'd like to ask the OCL to stay on the file and monitor her. Does that happen?

That kind of OCL recommendation is the only scenario where I imagine the mother might consider carefully not going to trial and making things worse.
I know its not the norm for an OCL worker recommend such a thing but that's why i shared what I think is the strength of my case...

What do you guys think?

Considering representing myself at this point...
Can something that is essentially meritless go to trial? Is there no "assessment"? At settlement conference doesn't a judge say "this is ridiculious"?
Can legal aid go on funding something that is very frivolous?
Is there any recourse with legal aid? Can i sue them for costs? Can I sue her lawyer for pushing something so frivolous through?
There seems to be a mechanism or a stop-gap in place around legal-aid funded cases...who is vetting them to ensure people aren't being railroaded with a frivolous case?
Are there any precedents where OCL would recommend sole to the father?
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Old 05-28-2014, 08:40 PM
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Wow, you've been through the wringer! Sorry you had to go through that.

I suspect that the abuse allegations will be easily seen through by any professional. And allegations don't equate to substantiation abuse. She would have to prove it. I would suggest that you not put yourself in a position to be accused of any further abuse. My husband stopped going to the door to wait for his children as a police officer said he was at risk every time he did. So he rang door bell and went back to his car on road to wait for kids to come out.

As for custody, I see a little flaw in your rationale and it might be because you aren't clear what is custody vs access? As I interpreted your argument for custody to be based on availability, etc to get child to bus. Custody refers to decision making, not access to child. I do know that some judges deem parents who seek joint custody over sole are sometimes seen as being more cooperative and they are viewed in a different/better light for this.

Last edited by Serene; 05-28-2014 at 08:56 PM.
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Old 05-28-2014, 08:49 PM
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I'm going through something similar. Ex's legal Aid lawyer just wants to drag out and prolong everything. I realized early on that I couldn't afford it and began self-representing and educating myself as much as possible. For a lot of these LOA lawyers their continued pay trumps the best interests of the children, which shouldn't be the case. Check out my thread "I need to see my daughter". It has massive amounts of good info and advice. i.e - keep offering mediation, www.ourfamilywizard.com, writing registered letters, etc. Legal aid has many programs in place such as "free mediation". Inquire whether it's been offered to your ex. Ive been through an EM, a CC and on my way to a SC and not a shred of proof supporting any allegations has been presented. Tomorrow will be the first time in 3 months that I see my daughter for 3 hours. Ex took off in a midnight move 3 months ago. She covered some bases, made police report (apparently, at CC judge asked about it and they said nothing), allegations of alcohol, drugs, the usual. Never any police contact, clean record, clean drug test brought to all my court appearances this far. They also asked for a hair follicle at CC. Judge denied it. I stood up and said I'd do one voluntarily. I have nothing to hide. Judge gave ex stern warning regarding all of her unilateral decisions.
Make a complaint to LOA office as well. Family Law s supposed to be focused on the child and minimizing the stress it places on them due to lengthy, meaningless litigation. I'm still a newbie .. probably shouldn't be giving you advice. But I can tell you that I do feel for you. A wise man once told me "Infinite Patience brings Peace".
Read all Tayken's materials on truisms (abuse, abduction, etc).
Good luck.

Last edited by LovingFather32; 05-28-2014 at 08:53 PM.
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Old 05-29-2014, 12:10 AM
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Writing Legal Aid. I've thought about that but read a Canlii case where a judge gave some poor guy trouble for interfering. I would only just expect some due diligence to be done...anyone else have thoughts on a nicely worded letter to LAO to due a further review of a case and it's merits.

Sounds like you're turning the corner...congrats on your visit tomorrow.
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Old 05-29-2014, 12:19 AM
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I video tape every encounter we have from beginning to end. Actually caught a good one of her ranting like a lunatic because I was 5 minutes late. But I take your point...about custody/access. I think I'm saying joint custody will be difficult if she continues to throw out wild accusations and refuses to accept that I will be a co-parent. When the two parities can't communicate then the judge reviews which parent will better serve the interests of the child. And appoints them custody based on five factors laid out in the act...right?
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Old 05-29-2014, 01:10 PM
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Originally Posted by Headwaters1 View Post
...

My other stress at this point remains - my wife is on Legal Aid - has no motivation to not go to trial. I am paying $400/hr and I'm in $20k. It costs her nothing...nothing to lose (except custody). I am supremely confident I win in court but I would really prefer not to go through all that expense.
At most, the other party has a certificate and they do eventually meet a cap. Since the matter "Legal Aid Gives You Wings" LOA has been much more cautious and evaluates matters a bit better these days.

The certificate the other party has will have a cap and generally they are $5000. I think the going rate is 185 an hour. So that gives the other party about 27 hours of billable time. But, remember it is probably less because all the disbursements and other fees are charged to the certificate too.

The more common pattern of behaviour you will find is that LOA funded nonsense is up-front "high conflict". Which you have already experienced with an "emergency" ex-parte motion which sounds you easily quashed. Then, as the certificate runs down you will hear less from the other party's lawyer.

There is a lot of paperwork, interviews and other stuff that has to get done to get the necessary additional funds to go to trial on a certificate.

Also, it does potentially cost her something. Most LOA certificates have a co-pay agreement where you have to pay back LOA some portion of the certificate.

If you jointly own your home... I highly recommend you have your lawyer pull the Service Ontario record to see if LOA registered a lean on the property. LOA leans are registered and pop up on this simple public record. Then you will know for sure the other party has been given some feathers to possibly grow wings...

Quote:
Originally Posted by Headwaters1 View Post
Chances are the OCL report simply recommends joint. What stops her from just charging on with trial...fully funded?
The governance process @ LOA will stop her.

The difference in the matter you are quoting and yours is that the OCL didn't recommend joint custody and equal access. They recommended maintaining the false status quo. Your situation is VERY different. You have a joint custody equal access order that resulted from the cross motion (or on a return) to an "emergency" ex-parte motion.

VERY BIG difference in fact.

So, the lawyer has to submit the OCL report to LOA as part of the file. The Area Director will review it and basically limit funding stating they should settle because the COURTS have already ordered it and and now the OCL is recommending it.

I doubt highly that LOA will continue to fund the matter. For all the criticisms I do have of them, in a matter like this they rarely provide additional funding and if they do it is for a "LOA Settlement Conference".

Quote:
Originally Posted by Headwaters1 View Post
I think Sole Custody works in childs best interests because I have extremely flexible work hours, can walk the him to school, get off work and pick him up...I run my own business so earn a decent income doing that...just extremely flexible - but that is of course if he's moved back to where I live/work. So if interm is sole custody residency with me.
Sorry to say... You won't be ordered "sole custody" because of this... There is nothing that is relevant to custody (major decisions: medical, education, etc...) in your above statement.

It might sway a judge on the matter of access (time a child spends with either parent) but, in 2014... Probably not... This was often the argument that "stay at home parents" used to "win" sole custody and majority access in the past but... This has changed and working parents are recognized as equally able to care for their children.

So, i wouldn't bother with this argument but, do ask your lawyer if it is a relevant argument to make prior to approaching the OCL about it. (That is why you have a lawyer.)

Quote:
Originally Posted by Headwaters1 View Post
Then I'd like to ask the OCL to stay on the file and monitor her. Does that happen?
No. I would also recommend you DO NOT ask for this. Why? Simply because you want to present yourself as a problem resolver and that once things are ordered they will only continue to improve and that the court and OCL's involvement will NEVER BE NEEDED AGAIN. (As much as possible of course...)

Quote:
Originally Posted by Headwaters1 View Post
That kind of OCL recommendation is the only scenario where I imagine the mother might consider carefully not going to trial and making things worse.
Again, a good lawyer will tell their client to settle for the already court ordered 50-50 access and joint custody if the OCL recommends it too. The only thing the OCL may recommend (and you should consider) is a different schedule like a 2-2-3-3 or a 2-2-5-5 based schedule.

I doubt that LOA will continue to top up the certificate to go to trial. They do have some standards and review process. You will be innondated with "LOA Settlement Conference" opportunities at most.

Quote:
Originally Posted by Headwaters1 View Post
I know its not the norm for an OCL worker recommend such a thing but that's why i shared what I think is the strength of my case...

What do you guys think?
That is NOT the strength of your case.

The strength of your case is better described the Honourable Mr. Justice Brownstone's book in the section regarding "emergency" ex-parte motions... In that if you bring a matter in this method to the court the obligation to present truthful facts is beyond the normal threshold balances that civil cases are judged on... and if you fail to do this as the Applicant no justice subsequently is going to "believe" the party's story.

The other strength is that you have a return (or cross motion) on an "emergency" ex-parte motion that awarded temporary joint custody and shared residency (50-50 access) as ordered by a JUDGE. Judges hearing emergency ex-parte motions are generally the most senior justice in that court house (e.g. Czutrin in Toronto) and no other subsequent justice that hears your matter will go against the previous order without INCREDIBLE evidence counter to the previous judgement.

Quote:
Originally Posted by Headwaters1 View Post
Considering representing myself at this point...
I DO NOT RECOMMEND THIS. Your understanding of your "theory of the case" is awful. What differentiates you from the person you are giving "props" to is that this person understands the core elements of how to present an argument, relevancy and the application of law.

STICK WITH YOUR LAWYER.

Quote:
Originally Posted by Headwaters1 View Post
Can something that is essentially meritless go to trial? Is there no "assessment"? At settlement conference doesn't a judge say "this is ridiculious"?
See my above comments.

Quote:
Originally Posted by Headwaters1 View Post
Can legal aid go on funding something that is very frivolous?
See my comments above and note the difference in your situation.

Quote:
Originally Posted by Headwaters1 View Post
Is there any recourse with legal aid? Can i sue them for costs? Can I sue her lawyer for pushing something so frivolous through?
You are trying to get out of the legal process so why would you dive back into it by suing legal aid? Note that the person you are giving "props" to has not sued LOA...

If the matter is brought forward in "bad faith" then a judge will order costs accordingly. You should ask your lawyer about what defines "bad faith" and their opinion if the other party is conducting themselves in bad faith.

Quote:
Originally Posted by Headwaters1 View Post
There seems to be a mechanism or a stop-gap in place around legal-aid funded cases...who is vetting them to ensure people aren't being railroaded with a frivolous case?
Everything that is produced in this legal matter is in the hands of LOA. The Area Director probably won't provide the funds to go to trial if there is an order for joint custody and equal access already and an OCL recommendation.

Quote:
Originally Posted by Headwaters1 View Post
Are there any precedents where OCL would recommend sole to the father?
Yes, there are but, you really really really need to understand what you are asking for. I would recommend you seek an order for joint custody in the model of parallel parenting.

Good Luck!
Tayken
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Old 05-29-2014, 01:14 PM
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Quote:
Originally Posted by Headwaters1 View Post
Writing Legal Aid. I've thought about that but read a Canlii case where a judge gave some poor guy trouble for interfering. I would only just expect some due diligence to be done...anyone else have thoughts on a nicely worded letter to LAO to due a further review of a case and it's merits.

Sounds like you're turning the corner...congrats on your visit tomorrow.
Ethics Hotline | Legal Aid Ontario

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Old 05-29-2014, 01:17 PM
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Originally Posted by Headwaters1 View Post
I video tape every encounter we have from beginning to end. Actually caught a good one of her ranting like a lunatic because I was 5 minutes late. But I take your point...about custody/access. I think I'm saying joint custody will be difficult if she continues to throw out wild accusations and refuses to accept that I will be a co-parent. When the two parities can't communicate then the judge reviews which parent will better serve the interests of the child. And appoints them custody based on five factors laid out in the act...right?
Double edge sword you wield recording like this... You should only be doing it to present as evidence in a CRIMINAL COURT should the other parent be successful in convincing law enforcement to bring an improper criminal charge against you.

In the Family Court system... They are not often reviewed, considered or held in high regard... Just to warn you.

Another way you can use the recordings it to better accurately describe the situation (if even relevant) in an affidavit. That way you can detail the time (to the minute) that something happened and quote exactly what was stated between both parties... Again... If even relevant...

Good Luck!
Tayken
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Old 05-29-2014, 01:26 PM
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Originally Posted by LovingFather32 View Post
Read all Tayken's materials on truisms (abuse, abduction, etc). Good luck.
In particular I think LovingFather32 is referencing this post:

http://www.ottawadivorce.com/forum/f...ase-law-16809/
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Old 05-29-2014, 01:29 PM
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Quote:
The certificate the other party has will have a cap and generally they are $5000. I think the going rate is 185 an hour. So that gives the other party about 27 hours of billable time.
To address a side point:
Legal aid rates range between $$103.94/hr to $129.93/hr. Citation: Tariff Rates | Legal Aid Ontario

Legal aid certificates are limited by hours worked, instead of dollar amounts. There is no hard cap limit on a file. Usually a client will start with 12-16 hours, with additions being given on request.
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