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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 08-03-2012, 12:37 PM
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Also look into Tools to simplify shared child custody. - Our Family Wizard - child custody, parenting time

Yes, HD gave a great sample letter. Definitely worth keeping as a template. Just remember to remove the word "Satan" lol
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Old 08-03-2012, 12:38 PM
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Tayken,

"with a highly conflicted individual as described they will come. Not only will they come they will bring "friends and family" with them to cause more conflict generally."

How right you are. The first time she tried bringing this up, about my household being in a state of uncleanliness, etc, back when my daughter was younger... she demanded on inspecting my house, before my daughter was allowed to come back (against our access arrangements, I know). And she wanted to bring her best friend.

Suffice to say, I did not agree to that. lol. She ended up dragging FCS into it, and they obviously had no issues with my house, and she ended up having to take some "parenting course" it sounds like. I was told very little by FCS, at that time, as it no longer involved me. But it sounds like it backfired on her.

Very high conflict...over the simplest of issues.
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Old 08-03-2012, 12:38 PM
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Quote:
Originally Posted by Tayken View Post
Letters are not admissible evidence and under the rules of evidence are hearsay. A letter can't be cross examined so if you want to find the doctor on the stand I highly recommend you don't try to engaged clinicians as "negative advocates" in support of your concerns.
Wasn't aware of that. My Ontario family court lawyer asked for letters (medical, counselor, neighbour) and submitted them with the documents. Judge referred to them so I'm assuming they were read. There was no indication that they were not admissible. I'm talking about cases (conferences) in front of a judge, not a trial situation, of course. Could there be a difference?
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Old 08-03-2012, 12:39 PM
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Yeah, "Satan" would likely not help diffuse anything...lol...but somedays, it doesn't seem far from the truth. :-)
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Old 08-03-2012, 12:45 PM
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Originally Posted by dad2bandm View Post
I understand a mom's concerns too, when they are valid. I suggested the Dr. too, when I first heard of this (as my daughter was with Mom when told), but I was told I'm "stupid" to suggest that, as "you don't bring a kid to the Dr. for lice!".
1. You bring a child to a doctor for any medical concern that you do not understand or know how to treat. It is their job.

2. It sounds like you are dealing with an over-anxious parent in the matter. I am assuming that neither of you are clinicians so, taking the child to the doctor was the best resolution.

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Yes, you can get over-the-counter stuff too, if this was an issue, so this is perhaps a bad example, but the responses from her, were unacceptable, and she was totally against it.
But, you have to remember how a judge will view the whole situation if brought before the court. It is really an irrelivant topic and if there can't be consensus on something as basic the judge will scold both parents generally.

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Originally Posted by dad2bandm View Post
The Dr. has been a road-block in the past too. (Mom had done damage there already). I ended up having to get a letter/and copy of our agreement there, to show what our custody situation is, to get info.
Clinicians need better training on what constitutes "custody" and what constitutes "access". They don't read their own policies from their governing body.

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Of course, they were advised much differently from Mom, about our custody agreement. Same thing happened at dentist office too.
One can only imagine what is said to the school and other professionals. This is how a highly conflicted individual attempts to "gain control" over the other parent. Transparent as glass.

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Originally Posted by dad2bandm View Post
I'll note any suggestions from her, about "makeup-time". I've always had to ask for make-up visits in the past, and that has been contentous for her as well. But I noticed this last-time, she threw in a "we can discuss make-up time", however it was totally conditional on my "cleaning up my house" and "admitting there is a hygeine issue" at my residence. So it was obviously not discussed, as she didn't like my answer on that.
An alternative would be to have a professional organization come in and inspect your home and provide evidence that there is no issues. Considering the conflict I am surprised that the other parent hasn't called CAS on you. If they call, don't be surprised...

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Originally Posted by dad2bandm View Post
Thanks for all the advice. I think the best advice is for me to keep noting/documenting these incidents, and to use the communication suggestions you guys noted, more so.

Likely, some court enforcement in the future too.
The matter has to be really serious for the courts to do something. Bickering between parents will just get a judge mad and a lecture. The children have to be at risk of emotional harm and/or physical and/or neglected and/or abused for things to change generally.

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

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[72] While some measure of communication and cooperation between the parties is necessary to support a joint custody order, the court is not required to apply a standard of perfection in assessing the ability of the parents to work together. As Quinn, J. remarked in Brook v. Brook, “the cooperation needed is workable, not blissful; adequate, not perfect.”[21]

[73] 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.[22]

[74] The existence of conflict and strife between the parties from time to time will not necessarily preclude the court from making an Order for joint custody. The question to be determined is whether the conflict between the parties is impacting or likely to impact on the well-being of the children. If the evidence indicates that the parties, despite their conflict with each other, have been able to communicate, shelter the children from the conflict reasonably well, and put the children’s interests ahead of their own when necessary, an order for joint custody may be appropriate.[23] The question for the court to determine is “whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis.”[24]
Good Luck!
Tayken
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Old 08-03-2012, 01:06 PM
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Originally Posted by KayD View Post
Wasn't aware of that. My Ontario family court lawyer asked for letters (medical, counselor, neighbour) and submitted them with the documents. Judge referred to them so I'm assuming they were read. There was no indication that they were not admissible. I'm talking about cases (conferences) in front of a judge, not a trial situation, of course. Could there be a difference?
There is a significant difference between a Conference and a Motion/Trial. Conferences under the Family Law Rules is governed under mediation and the briefs are not sworn statements. A lot of negative advocate solicitors sell snake oil to their clients that they can "shotgun" a brief or motion, to collect negative advocates, etc... Doesn't bold well for the party that does it. As demonstrated in the case law posted to this site it often blows up in the person's face. Not a recommended course of conduct.

Settle that which can be settled, and don't use Conferences to "err grievances" in my opinion. Demonstrate you can settle... Not that you can "win" your case.

That must have been one massive brief that was submitted. Unfortunate that your lawyer didn't advise you of the purpose of a Conference prior to having you compose all that information and a large brief. Briefs are returned to both parties and the documents provided are returned.

Depending on the size of your brief and the substantive (children's health and well being) issues before the court did the matter proceed on motion? As a Conference judge cannot make orders substantive issues. They can only order technical things like disclosure, proceeding to trial or motion, etc... This can only be done through consent by both parties, on motion, or at trial.

Good Luck!
Tayken
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Old 08-03-2012, 01:13 PM
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Quote:
Originally Posted by KayD View Post
Wasn't aware of that. My Ontario family court lawyer asked for letters (medical, counselor, neighbour) and submitted them with the documents. Judge referred to them so I'm assuming they were read. There was no indication that they were not admissible. I'm talking about cases (conferences) in front of a judge, not a trial situation, of course. Could there be a difference?
Difference between a "letter" and an "affidavit" or "medical record".

A medical record is governed under provincial and federal legislature. Furthermore, it is governed by the clinician's governing (registering) body as well. It is a statement made to the truth basically by the clinician. The rules for medical records are very strict and the colleges audit doctors all the time to insure they are following legislation.

An affidavit is a sworn statement to the truth. Simple as that. The person submitting the affidavit is making an affirmation that what they are stating is the truth. The rules of perjury apply if the statement is demonstrated to be untruthful and destroys credibility of the person. The person who supplies the affidavit can be called and examined through discovery on their affidavit evidence or called as a witness at trial.

A "letter", even from a doctor is a statement of opinion. Opinions are hearsay. Although a doctor brings credibility somewhat their letter can often be self serving to the person they are writing for. Furthermore, if matters are before the court, the Doctor in question's conduct for actually supplying a "letter" should not be doing so in accordance with the Acts and their own governing body's policies and requirements. Especially the common "to whom it may concern" blanket letters. To make the letter more reliable the person in question's medical records should be attached and the evidence to their statements should be provided. This is the requirement set forth by most, if not all, colleges.

Letter from a neighbour, friend, relative, etc... A demonstration that you can gather negative advocates and have people say mean things about the other party. I highly recommend anyone considering bringing these people into matters to seriously consider the impact it has on their case and if their materials are relevant.

Good Luck!
Tayken
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Old 08-03-2012, 01:37 PM
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Yeah, "Satan" would likely not help diffuse anything...lol...but somedays, it doesn't seem far from the truth. :-)
I have little pet names for when I do these types of letters on the board. Satan and Satan's Life Coach being my favourite.

Should she request that you do something or she will deny you parenting time, simply reply that:

Should you have legitimate concerns with my house and/or parenting ability, I will be willing to entertain your concerns. However, I will not subject myself to unwarranted criticism or any matter put forth in an aggressive or demanding manner.

I will continue to co-parent with you to the best of my ability. I do my best efforts to ensure that [child] has a safe and healthy environment. While we may not have the same standards or parenting style, that does not make either of us wrong or in some way inferior. All parents will parent differently and in doing so should provide balance to the child, which is in their best interests.

Thank you.
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Old 08-03-2012, 01:44 PM
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I always laugh when I see "Dear Satan" b/c (privately of course) that is what I refer to my ex as. Admittedly, I have a few pet names for him. Others (men and women) have told me that they too refer to their ex's as "Satan."

Cute unfortunate, but cute.
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Old 08-03-2012, 01:45 PM
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Tayken,

"with a highly conflicted individual as described they will come. Not only will they come they will bring "friends and family" with them to cause more conflict generally."

How right you are. The first time she tried bringing this up, about my household being in a state of uncleanliness, etc, back when my daughter was younger... she demanded on inspecting my house, before my daughter was allowed to come back (against our access arrangements, I know). And she wanted to bring her best friend.
It is just done to create "conflict" by the person doing it. Common tactic of a highly conflicted litigant. They try to get their "friends" (negative advocates) to help, file affidavits, make up lies... They will sit around for months post-coordinating their affidavit materials. What they don't realize is that although they think they are being "creative" the courts have seen it all before. A good family law lawyer who has real experience in highly conflicted situations can walk you through all the "truisms" (tactics). CanLII exposes them well too.

Another thing a highly conflicted litigant's negative advocates will do in these situations is try to stair you down. They will make threatening faces at you, gestures etc... It is all transparent and only demonstrates who is generating the conflict in the matter.

Last edited by Tayken; 08-03-2012 at 01:48 PM.
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