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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 03-17-2014, 07:35 AM
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Yes, the first thing we said when we read it was "this case was major expensive"!!

We think that our case can be done through motions court. Getting all the ducks in a row upfront. Case conference is end of May.


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Old 03-17-2014, 12:20 PM
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I might be wrong here, but I think your talking about two different problems.
1. Your thread is called OCL won't provide disclosure
2. Then you start talking about Alienation

These are two very different things.
With regards to OCL since this is the topic of the thread.

Please provide answers to the following questions:
1. What are the ages of the children under the OCL involvement.
2. What kind of OCL assessment did you have, do you have a OCL lawyer involved or is it just an assessor, or both?
3. Has a disclosure meeting taken place?
4. Has a OCL assessor affidavit (THE OCL REPORT) been filed with the court.

Note: disclosure of the collateral material and notes from the assessor will only be disclosed if and only if there is no OCL Lawyer involved. If a OCL lawyer was appointed than everything the lawyer was present for is under client solicitor privilege and will not be disclosed, there will also be no report to dispute.

Please answer the questions above so I can help you further.
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Old 03-17-2014, 12:31 PM
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1. Children are ages 12 and 14
2. OCL lawyer and a social worker that deals with alienation called in on a section 30
3. Yes, disclosure meeting took place but they refuse to put their findings in writing for the court. They want us to spend 20k on a reassessment with a Doctor that specializes in deprogramming.
4. No, they won't provide it.


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Old 03-17-2014, 12:48 PM
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5. Their only position after is to get a specialist to determine the cause of the alienation. The Father is not suspected to be the cause.

6. We went to a specialist and he says its not in the best interests of the children to do a second 8 month long assessment and OCL is "passing the buck and not following procedure"
6. OCL and section 30 social worker says the situation is so severe that its "out of their expertise"


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Old 03-17-2014, 12:57 PM
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Quote:
Originally Posted by Krisann View Post
1. Children are ages 12 and 14
2. OCL lawyer and a social worker that deals with alienation called in on a section 30
3. Yes, disclosure meeting took place but they refuse to put their findings in writing for the court. They want us to spend 20k on a reassessment with a Doctor that specializes in deprogramming.
4. No, they won't provide it.
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Confusing information, section 30 I believe is a private assessment.

As a starting point, it is important to remember that there are two means by which the Office of the Children's lawyer ("OCl") can become involved in custody/access proceedings in Ontario. Specifically:
1) The OCl may be appointed to provide independent legal representation to a
child pursuant to section 89(3.1) of the Courts of Justice Act; and
2) The OCl may be appointed pursuant to section 112 of the Courts of Justice Act, so that a clinical Investigation and Report be completed.

Given the age of the children I would argue a lawyer and an clinical assist (social worker) was brought in. So you have option 1. and fall under 89(3.1) of the courts of justice act. Independent legal representation.

So homework now is for you to read that section of the act.

As such no report, and no disclosure. This is a given and no way to change this fact. So as to your thread, your question has been answered.

The OCL can't and won't provide disclosure. The OCL is representing your children.

So now you want to challenge the position of the Children's Lawyer via section 89(3.1)
There are two way that I know of to do that.
1. The OCL has failed to follow its internal policy statement in respect of the role of counsel, and not presented evidence to support it's position when it takes the position contrary to the views of and preferences of the child.

2. The views and preferences of the child is only one factor and not the only factor as stated in section 24(2) of the children's law reform act. and therefore is not the be all and end all of the outcome of a case.

I believe 1 and 2 fall under your case.
With regards to 1:
Since we don't know what the children really want, we can assume they don't want to be assessed again. As such the OCL lawyer is not following the views and preferences of the children.
Therefore to dispute this issue, you claim the children won't benefit from another private assessment, and the family (parents) don't have the money. The children need peace and closure and direction to move forward and this would be hampered by another assessment. As such the case should move urgently to trial immediately where a judge can listen to all issues at once and make an order.

2. Section 24 of the children's law reform act states how custody and access are to be determined, one factor is the children's preferences.
Your argument if your children are being influenced shouldn't be given much weight. and more weight should be given to the reasonableness or lack thereof of the other parent to foster a relationship between the children and both parents.
Focus on your past involvement, focus on why the children benefit from your involvement. Focus on both parents strengths, not the other parents weaknesses.

This is how you challenge the position of the OCL lawyer and clinical assist.
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Old 03-17-2014, 01:12 PM
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Yes, they brought in a private assessor who is a social worker specializes in alienation.

After the assessment with both the social worker, OCL and CAS that last 8 months, they disclosed their findings of alienation but not by the father and said that they are not qualified to determine the cause of the programming even though there was already an alienation specialist on the case.

OCL will not write an affidavit for the court without psychologist on the case to perform a second assessment.

The children say they want to spend less time with their Father but OCL has stated their views are not independent.




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Old 03-17-2014, 01:28 PM
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So you have your game plan. See my previous text.

Who brought in and paid for the private assessment? Was it private or was it a clinical assist?
You could request disclosure of private assessment materials, but likely they would fall under Client Solicitor Privilege, and would have to bring a motion against "the children" for their records, but if their lawyer (OCL lawyer) was present then it won't be disclosed.

Your case is complex and I recommend you seek legal advice.
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  #18 (permalink)  
Old 03-17-2014, 01:35 PM
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OCL brought in and paid for the private assessor. Not a clinical assist. I looked her firm up.

Our lawyer who was present at the disclosure meeting has requested their affidavit and reports to support their position. All denied.


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Old 03-17-2014, 02:48 PM
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Quote:
Originally Posted by Krisann View Post
Yes, they brought in a private assessor who is a social worker specializes in alienation.
Ok, this is confusion. Section 30 of the CLRA is not related to the OCL. They are two different elements of legislation. For the OCL to get an assessment done in accordance with Section 30 of the CLRA they would have to:

1. Find an assessor who is qualified and willing to act on the file.
2. Then the parties would have to agree to how the costs of the private assessor would be paid.
3. Then you would need to sign agreements with the assessor...
4. etc...

What I am specifically saying is that Section 30 of the CLRA needs to be followed to get one assigned. As a party to the case the OCL could engage a Section 30 assessor. But, I am confused as to the "quality" of assessor you are discussing as there are very few "good" Section 30 assessors in Southern Ontario. None of which are cheap (<285 an hour).

Quote:
Originally Posted by Krisann View Post
After the assessment with both the social worker, OCL and CAS that last 8 months, they disclosed their findings of alienation but not by the father and said that they are not qualified to determine the cause of the programming even though there was already an alienation specialist on the case.
Firstly, "alienation" is a subjective idea and not a diagnosis. There are no clinical findings of "parental alienation". It is mostly a highly subjective study of the conduct of both parents. It is a "name" given to an unfortunate condition of bad parenting more than the objective actions of a parent telling a child to "hate" the other parent.

Secondly, there are no qualified "social workers" that I know of in my opinion in Southern Ontario. There are some "voodoo experts" in Southern Ontario that are Psychologists and Psychiatrists that will talk to the issues of "parental alienation" but, none are nearly as qualified as they should be in my humble opinion.

I am surprised that they professional involved in the matter identified they were not qualified to give opinion on the evidence of "parental alienation". My hats off to this professional for being frank and honest.

Quote:
Originally Posted by Krisann View Post
OCL will not write an affidavit for the court without psychologist on the case to perform a second assessment.
In accordance with Section 30 of the CLRA the professional retained (either by order or agreement by all the parties) is required to produce and submit a report to the court. It isn't an affidavit but a report.

Please see: Children's Law Reform Act, R.S.O. 1990, c. C.12

And in particular 30.(7) through 10: Children's Law Reform Act, R.S.O. 1990, c. C.12

Quote:
Report

(7) The person appointed under subsection (1) shall file his or her report with the clerk of the court. R.S.O. 1990, c. C.12, s. 30 (7); 2009, c. 11, s. 13 (1).

Copies of report

(8) The clerk of the court shall give a copy of the report to each of the parties and to counsel, if any, representing the child. R.S.O. 1990, c. C.12, s. 30 (8); 2009, c. 11, s. 13 (2).
Admissibility of report

(9) The report mentioned in subsection (7) is admissible in evidence in the application. R.S.O. 1990, c. C.12, s. 30 (9).
Assessor may be witness

(10) Any of the parties, and counsel, if any, representing the child, may require the person appointed under subsection (1) to attend as a witness at the hearing of the application. R.S.O. 1990, c. C.12, s. 30 (10).
So if indeed the "social worker" was ordered (or agreed) to act in accordance with Section 30 of the CRLA just have your lawyer advise them that as a person appointed under subsection (1) they are to produce a report.

Note that the report is NOT an affirmation to the truth and is a subjective element of evidence filed into the record. Just to warn you, justices are not relying heavily on the OCL or Section 30 reports much and are making a lot of determinations based on the sworn testimony and evidence provided by the parties. The subjective "evidence" of OCL/Section 30 is not reguarly relied upon in many complex matters but, the conduct of the litigants themselves. So be mindful of how you and your partner write (and what you write) in affidavits and state on stand.

Quote:
Originally Posted by Krisann View Post
The children say they want to spend less time with their Father but OCL has stated their views are not independent.
14 and 12 years are prime years for the court to listen to their views though. For parental alienation to be even relevant the children have to express a "hatred" of the parent in question.

There are all sorts of reasons children at these ages no longer want to spend additional access time with one parent. More often than not it is influenced by one parent having a more accommodating location to their friends, school and extra curricular activities. It may be that a new partner has become involved in the other parent's lives that they are not fond of. They may get more screen time playing games at the other parent's home. Or simply put the other parent's home may be warmer, more inviting and better suited to children who are 12 and 14 years of age.

The "influence" may be much more complex and may not be the fault of the other parent. It may simply be because they environment that they are presented at your residence is not as good. At 12 and 14 children want different things in their environment. So, before going off the deep end with PAS my recommendation would be to review what you can do to improve their environment while residing with you before projecting PAS blame.

PAS is a hail Marry pass play not recommended in family law...

Good Luck!
Tayken
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  #20 (permalink)  
Old 03-17-2014, 02:55 PM
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Quote:
Originally Posted by Krisann View Post
OCL brought in and paid for the private assessor. Not a clinical assist. I looked her firm up.
Careful what you disclose to this forum.

Secondly, the OCL would have had to bring a motion to get this done or get consent from BOTH parents to do so. You would have had to agree to a bunch of provisions. The OCL can't just on the side get an assessor to work on things unless they get consent from both PARENTS (the other two parties) or obtained an order.

To obtain an order they would have had to satisfy 30.(4) consent to act and provided a consent to act prior to the motion. This is a complex element of Section 30 that even the most senior counsel doesn't even understand so, I do question if the clinician is acting under section 30 as an assessor.

Quote:
Originally Posted by Krisann View Post
Our lawyer who was present at the disclosure meeting has requested their affidavit and reports to support their position. All denied.
You should have either an agreement or order specifically satisfing the requirements for Section 30. The OCL may have brought someone in under contract to assist the lawyer who has experience working as a Section 30 assessor but, that assessor in this matter may not have been engaged under section 30 but, under a specific element of the CoJA which InformedDad75 is much better to address than me.

But, I am skeptical that this clinician is acting under Section 30 of the CLRA. See my above post and the reporting requirements. If the clinician refused and was retained under Section 30 that would possibly be contempt by that person to refuse to meet the provisions of the law that they consented (30.(7)) under.

The court doesn't order a Section 30 unless they consent to act... They consent to act in accordance with Section 30 and therefor are bound to act in accordance with Section 30. This meaning they are required to produce a report and provided it to the court and all parties.

Good Luck!
Tayken

Last edited by Tayken; 03-17-2014 at 02:58 PM.
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