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  #1 (permalink)  
Old 08-31-2012, 02:14 PM
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Default OCL's report & Dispute

Hi All,

Here is the brief synopsis of the situation.

Criminal
ex falsely alleged abuse and got me charged, i was released on undertaking, she made further false allegations of breach and abuse and got me re-arrested, i was released on bail. she made further false allegations which tanked and i was not arrested. then her first allegation tanked and the first charge was withdrawn as well. however the subsequent charges are still pending.

OCL was involved on my request. They mailed the report on August 3rd so the effective date of service would be August 8th. the report contradicted almost every thing she claimed. however despite the report being favorable to me, the OCL surprisingly (or not surprisingly) recommended that because the bail conditions are prohibitive to a joint custody, full custody should be given to the ex.

I find this situation very disturbing as their recommendation is under obvious prejudice.

Family Court
I have brought a motion for access. (i did not touch custody)
ex has brought a counter motion for different access & final custody! (there is no previous order on custody)

Questions:
how do I get the court to make no order on custody yet, i understand this will further establish status quo for her, but i think its easier to fight status quo later than fighting a final order.

here is what i am planning to do
1- dispute the report ( whats the process & timelines on this?)
2- ask the judge to make no order on custody on following basis
a. she has not brought a motion for interm, therefore interm order is inappropriate
b. final order is in appropriate as i am disputing the OCL's report and ex is also relying on prejudice based on pending charges.
since I moved the motion, and ex used motion form would it be considered counter motion or would it be considered a reply to motion, what timelines apply?

should i do any thing differently?
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Old 08-31-2012, 02:20 PM
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Tell the judge custody should be decided at trial and not on motion. Lots of case law to support this.
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Old 08-31-2012, 02:43 PM
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Quote:
Originally Posted by sahibjee View Post
Hi All,

Here is the brief synopsis of the situation.

Criminal
ex falsely alleged abuse and got me charged, i was released on undertaking, she made further false allegations of breach and abuse and got me re-arrested, i was released on bail. she made further false allegations which tanked and i was not arrested. then her first allegation tanked and the first charge was withdrawn as well. however the subsequent charges are still pending.
Shaw v. Shaw, 2008 ONCJ 130 (CanLII)
Date: 2008-03-25
Docket: 34/08
Parallel citations: 62 RFL (6th) 100
URL: CanLII - 2008 ONCJ 130 (CanLII)
Citation: Shaw v. Shaw, 2008 ONCJ 130 (CanLII)

Quote:
[4] Before I continue with the immediate family law narrative, I must make several observations on a continuing problem with how criminal procedures impact and pre-empt sound family law tenets.

[5] The events after the arrest of Ms. Shaw do not, in retrospect, show the police, the Crown, counsel or the criminal judicial system in a good light, although her story is commonplace. These events have become routine and predictable in almost every allegation of spousal assault such that there is presumably some policy guiding the police and the Crown attorney and forestalling professional discretion in all such matters, no matter how remote the assault may be in time or indeed how trivial the contact. Spouses of every walk of life and often with completely unblemished prior character are routinely detained for a formal bail hearing for such assaults. Invariably, the defendant (not yet convicted) is excluded from his or her home and prevented from exercising custody of or access to the defendant’s children without any consideration of the factors that this court must apply by law before determining incidents of custody or access. This is not for one moment to diminish the impact of spousal abuse on family members and children in Canada. Spousal assaults are by nature serious and there are very sound policy reasons to lay such charges and have them proceed through the judicial system to ultimate resolution if not diverted. I observe, however, that the damage of which I speak is not from the laying of the charge — this will happen in any event, regardless of the manner in which the defendant is brought before the court. The way that the criminal justice system approaches the commencement of these matters, however, often wreaks family law havoc with the family unit of the defendant and the complainant, and in particular the children of those parties. Family courts decide custody and access issues on the basis of statute and case law defining the best interests of the children. The criminal justice system pays no attention to such interests because it is not geared up to do so nor are the participants widely trained in how the actions of the system — from the officer who refuses to release the defendant at the station, to the duty counsel who allows the defendant to agree to inappropriate conditions of release out of expediency — effect the lives of the members of the defendant’s family. Similarly the Superior Court is tasked with the duty of adjudicating the respective rights of the parties to remain in the matrimonial home pending the resolution of the matrimonial litigation. Routine orders excluding a party from the common home of the parties until the end of the criminal matter without thought to the consequences thereof, and without a remedy short of a bail review, place one party in a position of immediate superiority over the other party for as long as it takes (perhaps a year) for defended criminal charges to be resolved. Such rote treatment of all matters of domestic assault can lead, on the one hand, to concocted or exaggerated claims of criminal behaviour or, on the other hand, to innocent defendants pleading guilty at an early stage out of expediency or a shared desire with the complainant to start to rehabilitate the family unit.
Read that whole decision END to END 10 times and build your counter argument to the claim and even sight it where necessary. The OCL investigator in my opinion basing the recommendation of "sole custody" is in my opinion as the justice in this matter states "way that the criminal justice system approaches the commencement of these matters, however, often wreaks family law havoc with the family unit" and predicated the "assumption" of "sole custody" on this well known "truism" rather than doing their job in my opinion.

Quote:
Originally Posted by sahibjee View Post
OCL was involved on my request. They mailed the report on August 3rd so the effective date of service would be August 8th. the report contradicted almost every thing she claimed. however despite the report being favorable to me, the OCL surprisingly (or not surprisingly) recommended that because the bail conditions are prohibitive to a joint custody, full custody should be given to the ex.

I find this situation very disturbing as their recommendation is under obvious prejudice.
Izyuk v. Bilousov, 2011 ONSC 6451 (CanLII)
Date: 2011-11-09
Docket: F-2172/09
URL: CanLII - 2011 ONSC 6451 (CanLII)
Citation: Izyuk v. Bilousov, 2011 ONSC 6451 (CanLII)

Quote:
393. Under questioning Mr. Drouillard acknowledged a couple “truisms” well known among lawyers, judges, social workers – and frequently litigants themselves.

394. 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.

395. 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.

396. The OCL social worker fully acknowledged that separated parents commonly share these stereotypical perceptions. While Mr. Drouillard testified that social workers preparing assessments and section 112 reports try to be mindful of strategic behaviour by parents, in this case he appears to have done virtually nothing to investigate the extent to which either party was manipulating the system for strategic reasons.

397. Mr. Drouillard described the relationship between the parties as being "very high conflict". He said each party made numerous allegations about the other. Things were particularly bad whenever the parents had direct contact. He said some of the conflict was "situational" in the sense that custody litigation represents a time of high emotional crisis for both parties, and they were likely each behaving at their worst. But he doubted the conflict will end when this court case is completed. He said that’s why he ruled out joint custody (which he mistakenly believed the Respondent was seeking). That’s why he recommended sole custody. And with the mother having the status quo, that’s why he recommended sole custody to the mother.

398. Just like those “truisms” would have predicted.
Again, read this case and the other related decision END to END 10 times and build your counter arguments and even sight it directly if necessary.

Good Luck!
Tayken
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Old 08-31-2012, 04:17 PM
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Thank you very much, great responses.

Tayken perhaps you would have knowledge of this. if a case law is not referred to in motion materials could it be referred to during oral argument in front of the judge?
one example could be motion costs etc, other could be if motion materials are already submitted etc.

back to original questiosn, does any one know the timelines on responding to OCL and reply to reply?
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Old 08-31-2012, 04:24 PM
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Quote:
Originally Posted by sahibjee View Post
Thank you very much, great responses.

Tayken perhaps you would have knowledge of this. if a case law is not referred to in motion materials could it be referred to during oral argument in front of the judge?
You can submit a book of authorities (BOA) with your materials (affidavits). Provide a summary sighting the relevant paragraphs of the attached case in the BOA. Print out and attach the case law and go and highlight the paragraphs in yellow. The judge will thank you.

Quote:
Originally Posted by sahibjee View Post
one example could be motion costs etc, other could be if motion materials are already submitted etc.
You can cross motion back and request costs be considered if your original filing and request this. Just be careful with cross motion after cross motion. If it gets too large the judge will (or you can request) that the issues be partitioned into two different hearings or a long motion hearing.

Quote:
Originally Posted by sahibjee View Post
back to original questiosn, does any one know the timelines on responding to OCL and reply to reply?
There are no responses to the OCL report. It is a final report. You have to deal with the elements of the report at motion and ultimately at trial now. Don't bother contacting the OCL investigator now that the report is finished unless it is a summons for them to attend court for questioning or disclosure prior to trial. You can't influence the report at this point. Your only recourse to problems with it now is a cross examination of the OCL investigator. You can call this person and examine them in chief if the other party doesn't call them at trial.

The Rules of Reply are outlined in the Family Law Rules and Courts of Justice Act. It all depends on what specific form (in relation to the rule they represent) with regards to time frames.

Are you the applicant in the matter or the respondent?

Good Luck!
Tayken
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Old 08-31-2012, 04:41 PM
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There is some process called dispute OCL report. You have 30 days to do it. I do not know what exactly that process looks like as I did not do it but always was very clear on my position that I do not agree with OCL recomendations...

other part tried to use it against me during cost submissions. Kind of Look he did not dispute OCL report until trial started. Judge did not buy that ...

WD
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Old 08-31-2012, 06:05 PM
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Quote:
Originally Posted by Tayken View Post
You can submit a book of authorities (BOA) with your materials (affidavits). Provide a summary sighting the relevant paragraphs of the attached case in the BOA. Print out and attach the case law and go and highlight the paragraphs in yellow. The judge will thank you.
Thank you so much for this advice, i have started looking into how to write a Book of Authorities, apparently WorkingDAD did that too :-)

Quote:
You can cross motion back and request costs be considered if your original filing and request this. Just be careful with cross motion after cross motion. If it gets too large the judge will (or you can request) that the issues be partitioned into two different hearings or a long motion hearing.
i'll be careful, thank you though

Quote:
There are no responses to the OCL report. It is a final report. You have to deal with the elements of the report at motion and ultimately at trial now. Don't bother contacting the OCL investigator now that the report is finished unless it is a summons for them to attend court for questioning or disclosure prior to trial. You can't influence the report at this point. Your only recourse to problems with it now is a cross examination of the OCL investigator. You can call this person and examine them in chief if the other party doesn't call them at trial.
Quote:
Originally Posted by WorkingDAD View Post
There is some process called dispute OCL report. You have 30 days to do it. I do not know what exactly that process looks like as I did not do it but always was very clear on my position that I do not agree with OCL recomendations...

other part tried to use it against me during cost submissions. Kind of Look he did not dispute OCL report until trial started. Judge did not buy that ...

WD

My (ex)Lawyer also said you can dispute the OCL's report, you have to write to them within 30 days of the date of the report, (which i believe is 5 days after they mail it to you) so 35 days from the day they wrote the report.
He only told me to dispute the report you have to write an affidavit stating that you intend to dispute the report and serve it on to the OCL as well as submit it to the court. I will call OCL's office on Tuesday and post the exact process.

http://www.e-laws.gov.on.ca/html/reg...0114_e.htm#s21

Quote:
The Rules of Reply are outlined in the Family Law Rules and Courts of Justice Act. It all depends on what specific form (in relation to the rule they represent) with regards to time frames.
The trouble is the the FLR only state a timeline for motion materials and reply, no timeline mentioned for reply to reply.

Forms that were used by both parties were Form 14 and 14A, Justice at the CC asked me to bring a motion for access and submit my materials 30 days ahead of motion and ordered the other party to submit their reply 15 days ahead of time. no discussion about reply to reply.

Quote:
Are you the applicant in the matter or the respondent?

Good Luck!
Tayken
Respondent to the application but applicant in the motion.

Thanks!
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Old 08-31-2012, 11:28 PM
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WHOAAAA!!! That OCL reommendation is one messed up one. That is the dumbest reason for it. Many people are on bail during these proceedings because spouses jockey for position with these charges.

PS: Tayken is the best poster on this board.
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Old 08-31-2012, 11:43 PM
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Quote:
Originally Posted by sahibjee View Post
Thank you so much for this advice, i have started looking into how to write a Book of Authorities, apparently WorkingDAD did that too :-)
There isn't any really good templates on how to setup the BOA. WorkingDad probably can provide you how he setup his BOA. Most of the Family Law Forms end at motions and really, the information on "trials" is incomplete and often hard to find.

Quote:
Originally Posted by sahibjee View Post
My (ex)Lawyer also said you can dispute the OCL's report, you have to write to them within 30 days of the date of the report, (which i believe is 5 days after they mail it to you) so 35 days from the day they wrote the report.
Careful how much you put in the "dispute". I would just put in an affidavit stating you are in disagreement with paragraphs x, y, z for the reasons that the recommendation is based solely on "assumptions" and then sight the reason against WorkingDad's case law. Where something is based on a "truism" identify it and the paragraph but, don't provide the counter argument per-say or anything that would give away your theory of the case too much.

The dispute to the OCL report will form part of the continuing record and the other lawyer will get it. They are possibly encouraging you to get more information so step lightly... Opposing counsel giving recommendations like this is a bit odd... Talk to a lawyer before you submit your dispute to the OCL.

Quote:
Originally Posted by sahibjee View Post
He only told me to dispute the report you have to write an affidavit stating that you intend to dispute the report and serve it on to the OCL as well as submit it to the court. I will call OCL's office on Tuesday and post the exact process.
Also, talk to a lawyer if you can. I have a call out to see what needs to go into the dispute affidavit and "what" should go in it. I haven't seen on any file that I have reviewed from the courts an actual affidavit in dispute of the OCL report through any process. Trying to find a case to pull that does.

Quote:
Originally Posted by sahibjee View Post
The trouble is the the FLR only state a timeline for motion materials and reply, no timeline mentioned for reply to reply.

Forms that were used by both parties were Form 14 and 14A, Justice at the CC asked me to bring a motion for access and submit my materials 30 days ahead of motion and ordered the other party to submit their reply 15 days ahead of time. no discussion about reply to reply.
7 business days prior to the hearing in general. You are going to need to read the Court of Justice Act on how to properly count days. But, the general rule is that any day the court house is open is a day. (So weekends and civic holidays don't count.)

Now the motion, was it ordered from the CC preemptive on both parties? Filing limits were set for your affidavit (30 days prior) and response to be filed 15 days after the 30 day period. You can be rest assured that the lawyer on the other side will wait the full 15 days to file the response. If there is no mention of no further materials to be filed after a specific date then you can file 7 days prior to the motion hearing.

Be careful with your materials. Don't shotgun the affidavit with irrelevant crap unless you want to find yourself on the court fast track to trial. Next sittings for trial would be January of next year.

Quote:
Originally Posted by sahibjee View Post
Respondent to the application but applicant in the motion.
What was the judge's recommendations at the CC about "access"? That it should be increased? The recommendations by the judge at the CC are very important and should shape how you position yourself. A "likelihood" of success may have been provided by the judge.

Good Luck!
Tayken
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Old 09-01-2012, 01:42 AM
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I would think you want a temp order describing 'access' given the abuse of allegations occuring. Straightforeward rules to follow can be your friend too.

temp orders should not establish status quo? I am not a law student, but that would seem to make sense to me.

I sympathise with you and have faced very similar circumstances. Do the right theing each and every time, and time will prove you to be of 'impeccable' behaviour.

Good Luck.
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