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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 05-29-2014, 02:00 PM
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Originally Posted by OrleansLawyer View Post
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.
The "hard cap" before you have to request more time would be 12-16 hours then.

If we are burning down "hours" versus "money" it all nets the same result generally.

After 16 hours - which isn't much at all - additional hours are only given upon "request" and in accordance with the LOA Act, the Area Director generally reviews all the certificate requests and extensions to existing certificates per the Act:

Legal Aid Services Act, 1998, S.O. 1998, c. 26

Suffice to say, with an order for Joint custody and equal access already in place and an OCL report... I an Area Director would more than likely use their power to remove the certificate.

Good Luck!
Tayken
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Old 05-30-2014, 12:08 AM
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Yes exactly. I don't intend to use video in family court. She has accused me of verbal abuse that happened 1 year prior to seperation...and then later went to the police, CAS etc. So she is erratic at best in her actions. Who knows when she will make up another story. She refuses to meet me in a public place. Video is the only protection I have...it's just that...backup. So if she claims some altercation happened at an exchange I can play the video.
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Old 05-30-2014, 01:42 AM
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Quote:
Originally Posted by Tayken View Post
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.
Very helpful. You are the first one to definitively tell me there is a district area supervisor to review files like this. I have been told there were limits but never given specifics (even by my lawyer). This is very helpful and changes matters very much. The most helpful part of your reply was your clarification about the exparte being heard by a senior judge. This gives the decision much more weight then I had previously thought it held. This too helps re-scope the matter for me.

A lot of my earlier questions were really related to finding ways I could apply the appropriate pressure to the other side if they did indeed have endless funding. In my eyes I was trying to find mechanisms to balance the negotiations. Your clarification helps frame that better for me.

Of course I don't want to sue LAO or her lawyer - I don't want to be in court at all. However you have to imagine if in my mind I was facing an unbridled applicant who would never have to pay costs (and lets face it she won't) and looking at $60-70k in trial costs...I was grasping for ways to make the other side re-consider their culpability in helping these allegations be furthered.

You tell me now - there is a process in place that throttles back frivolous cases. That changes everything and changes how I view this playing out.

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Originally Posted by Tayken View Post
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.
Okay okay. Go easy. Very biting assessment. I very much appreciate your thoughts on this but wow you guys come out of the gate strong. It stings.

I believe do understand the difference between Custody and Access. I perhaps communicated it poorly.

I see looking back my mistake in my write-up was perhaps not relaying just how uncooperative and incredibly hostile the other side continues to be.

I would imagine that normally the CAS/Exparte series of events is a burst of anger and if they fail I would think most applicants would calm down. Not in this case.

There is immense hostility from the other side and it continues at 100% intensity...even in the light of many failed attempts. She strongly believes she will force this to trial...and tells me so.

I have only sought joint custody from the beginning (only changing to sole recently at CC as recommended by my lawyer - maybe he sees the same).

And perhaps I am just too new at this to grasp the nuances but when reading cases like

Bolduc V. Bolduc
CanLII - 2006 CanLII 28099 (ON SC)

Justice Turnbull says:
In listening to the parties and the applicants’ parents, it is apparent to me that a joint custody relationship between the applicant and respondent would not be in Avienda’s best interest.

[57] The report of the OCL illustrates that there is a significant degree of mistrust and lack of cooperation between the applicant and the respondent. This is even confirmed in the plan of care filed by the respondent just before the commencement of the trial and which is found at tab 1, of exhibit 17.
...
[59] Our courts have consistently held that joint or parallel parenting should not be ordered where there is insufficient communication and co-operation between parents. Young v. Young, [1991] 4 S.C.R. 3 at para. 44; Kaplanis v. Kaplanis, [2005] O.J. No. 275 at 4 (C.A.). Clearly our courts were stating that each case must turn on its own facts. The same panel of appellate judges that decided Kaplanis v. Kaplanis supra, also sustained a trial judge’s order of joint custody in Ladisa v. Ladisa, [2005] O.J. No. 276. That latter decision was issued the same day that the Kaplanis decision was released and specifically refers to that decision.
Same again in Otari V. Otari...

And I understand in Kaplanis and Kaplanis it specifically warns against the "hope" there will be co-operation.

Again much of this really isn't as important if indeed the money from the other side runs out and it creates a marked change in the nature of the negotiations to date. If both sides can co-operate then joint it is.

Joint Custody will be great - and it truly is the best thing for the child....if we can manage to co-parent as I have with my first wife very successfully. I have lived a model case of co-parenting for seven years. So I am in no way a control freak. The first custody matter was settled without courts and very little lawyer involvement.

This one is totally different.

You have to understand I have faced CAS, Police, exparte motions and even in light of all of those failing for the applicant she still holds that there is absolutely no reason I should be in his life. Every exchange is emotionally charged...she continues to make very silly frivolous grievances.

I guess I am looking down the road and wondering how I manage to co-parent with someone who continues to attack me and prevents any chance to talk calmly about any matter relating to the child.

I know I was talking about my flexibility in being able to care for the child which is access related...this was a bigger issue 10 years ago when dealing with my lawyer on my first divorce.

The difference in this matter is an out of control applicant who can only see red and is looking for conflict...still.

There is a Canlii case out there somewhere where the judge says something to the effect..."I am confident in the fathers ability to recognize the importance of the mother's involvement in the child's life but unfortunately I don't have the same confidence that the mother can do the same".

Anyways...lots of good wisdom Tayken...your comments were very very helpful.
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Old 05-31-2014, 04:20 PM
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So what happens then when the initiating side (applicant) runs out of money? Does this thing just hang in limbo until someone files a motion?

I suppose this happens quite frequently.

Its funny I've been reading all this case law (they have all gone to trial) - so I haven't really played out in my head any scenerios where she just runs out of venom.
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Old 06-01-2014, 12:20 PM
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So what happens then when the initiating side (applicant) runs out of money? Does this thing just hang in limbo until someone files a motion?

I suppose this happens quite frequently.

Its funny I've been reading all this case law (they have all gone to trial) - so I haven't really played out in my head any scenerios where she just runs out of venom.
First to your other comment. You need to read all jurisprudence and not just the cases you think go your way. One element of case law does not make a case but, multiple that are often cited. There is a structure of "relevance" in jurisprudence as well that many people don't understand. It has to do with the justice who put it forward, the case law that it relies on itself, how well detailed the reasoning for judgement is and ultimately how many other justices have relied upon it.

Second, Yes... Someone has to bring a motion or schedule a conference to get things moving. IT is the responsibility of BOTH parties to keep a matter moving forward.

If there is no action on an application for a specific amount of time the courts will remove it from their system. Then if you want to start it up again you need to file a whole new application.

Good Luck!
Tayken
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  #16 (permalink)  
Old 06-01-2014, 12:31 PM
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I believe do understand the difference between Custody and Access. I perhaps communicated it poorly.

I see looking back my mistake in my write-up was perhaps not relaying just how uncooperative and incredibly hostile the other side continues to be.

I would imagine that normally the CAS/Ex-parte series of events is a burst of anger and if they fail I would think most applicants would calm down. Not in this case.
1. If you want to understand how a justice evaluates "communications" when determining custody / access this is the best case to review:

V.K. v. T. S., 2011 ONSC 4305 (CanLII)
Date: 2011-09-09 (Docket: DF 2217/09)
Citation: V.K. v. T. S., 2011 ONSC 4305 (CanLII),
CanLII - 2011 ONSC 4305 (CanLII)

See paragraphs 72 forward... (I recommend you read this one end-to-end as well.)

Quote:
A mere statement by one party that there is an inability to communicate will not be sufficient to preclude a joint custody order. The court must carefully consider the parties’ past and current parenting relationship to obtain the “big picture” respecting the parties’ ability to communicate, rather than simply relying on allegations of conflict by one or both of the parties, or a snapshot of the situation that exists at the time of trial.
2. Please do go run out and buy the book "Tug of War" and read it. You will note that Justice Brownstone talks about the negative impact it has on one's case. In every emergency ex-parte motion I have ever seen the party who is lying intensifies their false allegations and some times attempts to double-down on their theory.

The highly conflicted often thing that the more mud they throw and the more negative advocates (friends, family, anyone willing to lie for them on paper to "save" their family/friend) come out of the woodwork. This is because of the HIGH standard of evidence continues throughout the file.

For example, if they go back and retract their false allegations, even though it would be better for them and demonstrate "good faith" they continue to go down that slippery slope.

This is because the expectations of emergencies is very high. (Read my other threads on this - I focus on studying this area of law a lot.) It brings the threshold of the balance of probabilities to a much higher ratio of "truth" to make a determination.

Suffice to say, the worst thing anyone can do is to bring an improper emergency ex-parte motion. There is no worse advice a negative advocate solicitor can give than instructing their client to bring a emergency ex-parte motion when one is not warranted.

Even after having seen justices advise applicants who have pulled this stunt to "hire a new lawyer" in the matter... they continue to use this nightmare of a lawyer. Despite a justice breaking standard and advising a client directly to "hire a new lawyer".

Any reputable self respecting lawyer would have left the file ages ago if their client brought and lost an "emergency" ex-parte motion. Simply on the fact that their client misrepresented evidence to them.

Good Luck!
Tayken
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Old 06-01-2014, 12:47 PM
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Surprising enough I have just learned that my ex has changed lawyers.

You're a fortune teller Tayken.
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  #18 (permalink)  
Old 06-01-2014, 12:53 PM
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Surprising enough I have just learned that my ex has changed lawyers.

You're a fortune teller Tayken.
These emergency ex-parte motions have a very identifiable pattern when false allegations of "domestic violence" come into play. Good justices know the game that is played out with one and how they come crashing down. If you are in specific jurisdictions the justices are getting so bold as to just call them out in the court room and predict the next 8 steps in an effort to curb the nonsense.. It is really sad that there are negative advocate lawyers who fail to adjust their patterns of behaviour.

Good Luck!
Tayken
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Old 06-05-2014, 01:07 AM
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So if it is true the LAO certificate has run out then I am assuming she will be paying out of pocket for her lawyer. So I don't think we'll be going to trial...this will wind down in negotiations. Now the trick is how messy these discussions will get...my ex isn't too up on the law...and very stubborn.

I'd like to hold onto my lawyer but use him less to keep costs down. I'm already in $20k and money is tight. Is it possible to retain my lawyer on record but attend certain non-court meetings without him?

For example the disclosure on OCL coming in 40 days or so. Is it a written report or just verbal? Do I really need to drag my lawyer out to that? It's an hour commute so I'm looking at $1600 right there. He's $375/hr.

Does that make sense? I am anticipating this might be lots of mediation before we get her coming to terms...my biggest fear is hours and hours of wrangling just to find out we need to pull the trigger on a motion...

So I'd like keep my powder dry.
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Old 07-06-2014, 01:34 PM
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Update: Another accusation of child abuse at a drop off. After three days at cottage with his brother I dropped him off and the W says "this is third black eye in four months"? I look at my boy and he has an ever so faint red ring under his eye (rubbing it likely after waking up from a long drive... I've since picked him up again and so sign if any bruising etc...it was nothing). And what other black eyes? .??? Everything is always exaggerated...there have been no other such events.

Anyways no formal complaint was filed. I texted her back right after the drop off saying "ok please catalog all these alleged events...when, where, pictures, were they addressed at drop off".

No response and that seemed to kill it in its track. It was just highly irrational. But 12 months after separation it's still so hostile from her side.

I think she might be a little delusional at this point.

Interesting that each time she makes an accusation it's preceded by a challenge to her. When I first said I intend to fight for 50/50 way back a year ago she called CAS. When my lawyer sent first disclosure request in Jan she went to police to try and file a report (didn't work). And last Friday I sent the same disclosure request to her brand new lawyer...so guess what...she fires back.

I spoke with OCL to see where they are....they are waiting on a whole bunch if documents. So it's months away. Looks like there will be little chance to sort this out before his first day of school starts in early sept. (She moved 40m away).

So this is a little mobility case too (I think that's the termed used). If we are to do joint it means one of us has to move.

I've purchased the Family Law Practice book 2014. Fantastic. I am going through it and it covers off all relevant case law with three line summary below each legal statute in various acts.

I've been reading reading. Highly recommended to anyone on here fighting a high conflict case.

One question...when should I press on that disclosure? She has very clearly understated her income - she ran a biz earning over $30k but used all the major expenses I paid for (house/car/internet etc) to show only $7k in income.

First disclosure request was Jan...I just reissued a request last week. My new hand text book says 10 days. Is that reasonable? Should I press harder next week?
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