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Old 01-14-2013, 01:04 PM
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Exclamation Parental Conduct and Impact on Access and Custody - Brampton Superior Court

Hi All,

Hopefully many of the parents coming to this site have seen the consistency I bring forward relevant jurisprudence in the matter of denying another parent access and the impact it could have on the custody and access to the children in question.

As I have stated previously that the mere allegation of parental miss conduct is not justification to remove a child from the other parent. The following jurisprudence posted to CanLII although an extreme example of the concerns I consistently raise and how a court may view this conduct. This case law provide outlines a true result of what can happen when allegations are taken too far and the impact it can have on a child and the how the court will resolve the issue.

Vucenovic v. Rieschi, 2012 ONCJ 658 (CanLII)
Date: 2012-10-22
Docket: 1465/02
URL: CanLII - 2012 ONCJ 658 (CanLII)
Citation: Vucenovic v. Rieschi, 2012 ONCJ 658 (CanLII)

Quote:
3. At trial, both parties were seeking sole custody. And while each party had a plan for some access to the other; it was clear that the choice before the court was much starker: Whichever parent Emilee resided with, she could not, for very different reasons, have access to the other.

4. The trial was completed on September 5, 2012, the second day of the new school year. The parents now reside in different jurisdictions which meant the custody order would determine which school Emilee would attend. Given the urgent need for finality and stability for Emilee’s custody and schooling, I gave my decision orally to the parties and Emilee in court on September 6, 2012, placing Emilee in the sole custody of her father with no access to her mother; requiring that Emilee be enrolled in counselling; and providing for police enforcement, with written reasons to follow. I had asked that Emilee be brought to court for the decision due to the history in this case of the difficulty or even impossibility of access exchanges.

5. These are my reasons for that decision.
I turn the attention of readers to “3. Analysis” which begins at para. 45 and ends at para. 61. You can clearly see how the justice presiding over the matter aligned the arguments presented by the parents in this matter to Rule 24.(2) of the Children’s Law Reform Act of Ontario – “the best interests test”.

After having heard the evidence presented by numerous “clinical experts” (OCL and numerous third parties of various “fame”) the justice concludes based on the analysis the following:

Quote:
62. It is clear that after considering all of the factors, it would be in the child’s best interests to be placed in the custody of her father. With respect to access, it most unfortunately is clear that it would not be in her best interests to have access with her mother as it would undermine the stability of her placement with her father and inevitably lead to a complete rupture in her relationship with her father as it has several times in the past, including most recently in the summer of 2012.

63. While Ms. Rieschi claims to support Emilee’s relationship with her father, it is clear that she does not really want Mr. Vucenovic to have access to Emilee because otherwise, she would not keep focusing on allegations that he always “lays his hands on her [Emilee].” She cannot on the one hand profess a wish for Emilee to have regular access with her father while on the other complain at length about Mr. Vucenovic’s deficiencies as a person and parent, including having him charged on the eve of this trial on spurious allegations of harassment, and expect to be believed.

64. Furthermore, it would not even be enough to have supervised visits with counselling as that was already tried and proved an insufficient safeguard. Ms. Rieschi would first have to demonstrate through individual treatment that she has changed.

65. I asked that Emilee be at court to hear the decision out of concern that the decision could not be implemented if she were in Ms. Rieschi’s residence. There has been a sad pattern in this case of access exchanges involving great upset at first for Emilee or even sometimes proving impossible, as with the recent attempt at an exchange at a police station July 2012. That pattern was borne out again on September 6, 2012. While Emilee was at first hysterical at the thought of going with her father, she eventually went with him willingly.

66. Emilee cannot be further subjected to the back and forth changes of custody, to the hysterical access exchanges, to this battle any further. She deserves stability, permanence and emotional security and she is most likely to achieve that in the care of her father with no access to her mother.
Resulting in the final order in section “5. ORDER (issued and entered September 6, 2012)” stating:

Quote:
1. The Applicant, Anthony Phillip Vucenovic, shall have sole custody of the child, Emilee Martina Rieschi, born […], 2002.

2. There shall be no access to the Respondent, Jessica Lilian Rieschi, pending further order of this court.

3. The Applicant shall enrol the child in counselling forthwith which shall not be terminated, pending further order of this court.

4. Peel Regional Police, Sheriff’s Officers and/or such other law enforcement agencies as may have jurisdiction are hereby directed and authorized to enforce this order.

5. Pursuant to section 36 of the Children’s Law Reform Act, police forces in the Province of Ontario, including but not limited to the Peel Regional Police, are directed and authorized:
a) To do all things that may reasonably be done to locate and apprehend the child, namely, Emilee Martina Rieschi, a girl, born […], 2002 and deliver her into the care of the Applicant, Anthony Phillip Vucenovic; and

b) To enter and search any place, at any time of day or night, where he or she has reasonable or probable grounds to believe the child may be, with such assistance and such force as are reasonable in the circumstances,

c) But this order to apprehend the child expires six months from the date of this order, unless extended or terminated earlier by further court order.
As I have stated on a number of occasions, the “extreme” nature in which a parent brings their animosity and hatred to the court room can have an impact on the children involved and the court will order to protect the children from such unnecessary, vengeful, hateful and unsubstantiated and baseless allegations against a parent.

This jurisprudence will hopefully be a strong reminder to parents that as stated in other “controversial” jurisprudence posted to this site that generated some concerning comments, which also includes the same quote from Tremblay v. Tremblay 1987 CanLII 147 (AB QB), that access denial can and will be seen as “child abuse”:

Quote:
60. Often cited in such cases are Justice Trussler’s comments in Tremblay v. Tremblay 1987 CanLII 147 (AB QB), (1987) 10 R.F.L. (3d) 166 (Alta Q.B.), paragraphs 9, 15 and 16:
9. I start with the premise that a parent has the right to see his or her children and is only to be deprived of that right if he or she has abused or neglected the children. Likewise, and more important, a child has a right to the love, care and guidance of a parent. To be denied that right by the other parent without sufficient justification, such as abuse or neglect, is, in itself, a form of child abuse.
Disclaimer For this Posting (yet a highly conflicted negative advocate projects blame again improperly):

All names appearing in this case law are exposed by the Canadian Legal Information Institute (CanLII) in accordance with their Terms of Use (CanLII - Terms of Use) and is published in accordance with Paragraph 4 of their “Terms of Use” which explicitly states:

Quote:
Originally Posted by CanLII Terms of Use
Subject to the following paragraph and the below conditions pertaining to prohibited use, legal materials published on the CanLII website, such as legislation, regulations and decisions, including editorial enhancements inserted into the documents by CanLII, such as hyperlinks and information in headers and footers, can be copied, printed and used by Users free of charge and without any other authorization from CanLII, provided that CanLII is identified as the source of the document.
Any association to any user of this forum is coincidental. This is publicly accessible court documentation made avalible by CanLII is posted in accordance with the concepts of “Free Access to Law” (CanLII - Montreal Declaration on Free Access to Law)

I am grateful to the people who continue to contribute and make the case law posted there a free and public resource.

Good Luck!
Tayken

Last edited by Tayken; 01-14-2013 at 01:09 PM.
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Old 01-14-2013, 01:37 PM
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Another possible point to discuss regarding this jurisprudence is the impact that the "clinical experts" had in this matter. One has to consider their impact on all this family's situation.

When considering the "History of Therapeutic Involvement and Assessments" in the above posted publicly accessible case law, it brings to light again the question why none of these "experts", some of whom are registered clinicians, observed the concerns of possible "child abuse" and recommended counter to their "recommendation" a very different order all together.

Is it a lack of qualifications? Hard to say as one of the contributing "experts" is cited in case law. But, this may be possibly a case where there were too many experts and they may not have known what to do about the situation.

I have to say I was rather surprised that the OCL actually attempted to bring concerns to the CAS to investigate although CAS failed to protect the child in question.

But, I am not surprised of the "truism" which is echoed throughout thousands of postings of case law that the "default" every other weekend access was recommended despite the fact the investigator had raised the concerns with the CAS. Puzzling to say the least and in consideration that (a) the investigator called CAS regarding concerns and (b) the FINAL order made from the result of a trial is so radically different than what OCL "recommended".

Quote:
10. Ms. Spraggett reported what Emilee told her to the Children’s Aid Society who investigated and did not verify any child protection concerns. Ms. Spraggett recommended joint custody with primary residence to Ms. Rieschi. She recommended that access between Emilee and her father be re-established through short frequent visits while counselling was in progress and then, after three months of counselling, to be expanded to alternate weekends.
Also, we see how little value an "expert" who has not met with the other parent and child in question really is before the court. Also, it is a possible demonstration of how a mere allegation in a letter from a "professional" no matter how "noteworthy" they are really has little to no impact on a justice's decision. That evidence, not possible "hearsay" from a clinician is what the court determines custody and access on.

When helping hurts? (Something to ponder in consideration of this case law.)

http://www.ottawadivorce.com/forum/f...tes-not-13976/

Good Luck!
Tayken

Last edited by Tayken; 01-14-2013 at 01:40 PM.
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Old 01-14-2013, 03:38 PM
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I have to comment on Tayken last post.
In my case the OCL assessor called CAS on myself. For something that she observed. I was in a gas station after I pumped I went inside and left the children in the car. She never approached the car to check on the children, she never observed that they were seated with seatbelts on, that the doors were locked and the windows and or sun roof were open or that I had sight of the car at all times, but instead placed a call with CAS.
How can a assessor for the OCL place a call to CAS and yet remain neutral in their investigation. I would be interested in finding out how I could sue the assessor and the OCL for costs as it was becuase of her recommendation that trial had to occur. Had she done the right thing and removed herself and a new assessor come in and start again the recommendation might have been different. And who calls CAS for leaving a child in a car at a gas bar???
The judge in my case asked the assessor after my questioning on the topic. "What were you thinking?" to which her response was "I wish I had never driven into that gas station."
It should be noted that this was her very first assessment for the OCL. As she had only been hired 4 days prior to being assigned to our family.
I believe she needs additional training and their should be an investigation into how she conducted herself during the assessment as well as after the assessment.
Has anyone been successfull in sueing the OCL and or assessor. She even lied on the final report when she described my behaviour at the disclosure meeting. Which I recorded and what she says I did and said aren't what I said and did.
I feel and it is only my opion that this assessor had never met a father who questioned everything. Who was involved, and wanted to know the correct proceedures. I deal with procedures everyday it's my life and it keeps our industry safe. It also needs to keep our children safe.

Does anyone have a recent OCL training manual they would be willing to share.
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Old 01-14-2013, 04:11 PM
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Excellent Tayken, looking forward to reading the case more in depth later!
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Old 01-14-2013, 04:23 PM
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Quickly adding the following case law for those reading this thread to review:

A.F. v. J.W., 2011 ONSC 1868 (CanLII)
Date: 2011-06-27
Docket: FS-08-00007251
URL: CanLII - 2011 ONSC 1868 (CanLII)
Citation: A.F. v. J.W., 2011 ONSC 1868 (CanLII)

These are brilliant statements from the Justice in the matter. (my emphasis added)

Quote:
[26] J.’s track became a constant struggle to have a relationship with his children who, as he claimed, were transformed by A. from children who had a loving relationship with him to ones that feared and hated him. He pursued a track that emphasized that A. was the cause of the children’s resistance and they were the subjects of parental alienation syndrome (PAS).

[27] The parental tracks were on a direct collision path for over three years. This dynamic of the search for labels and fault deflected many professionals and increased the tension between the parents and their supporters. It also fostered actions and reactions between the parents that exacerbated the emotional stress on the children. In previous cases involving these high and chronic conflict cases I have urged everyone to stop searching for labels and keep focused on the evidence of how each parent and others’ actions impact on the children’s functioning and their needs. The desperate need, in these types of cases is for an early identification by focused assessments of what the clinical needs of the children are in order to, at least give them the tools to withstand the actions of their parents. This was certainly not a feature of this case.

[28] A. made numerous allegations to the police, the Children’s Aid Society, the assessor and the therapists that the children feared their father and were the subject of abuse by him. J. attempted to provide all professionals involved with what he claimed to be the latest literature on PAS in order to educate them on what he felt to be the root cause of the children’s problems.

[29] Many of the professionals identified a serious and increasing concern about the risk of emotional harm to the children. None of the professionals involved did a comprehensive and critical analysis of the root cause of the children’s ever increasing distress. I will comment on this all too frequent occurrence later in this judgment.
... and the justice has to say this "later in the judgement":

Quote:
[168] I find that it is not necessary or helpful to engage in the controversy within the clinical profession about the merits of concepts of parental alienation, realistic estrangement, or family systems based “alienated child” approach. I do find that the focus on the concept of parental alienation creates an environment that could lead to narrow and limiting analysis of very complicated dynamics of family interaction that must be understood in order to find a solution that has the best chance of success. In this case, the pursuit of the label of PAS, diverted many of the professionals. I find that one of the most significant diversions is illustrated in the testimony of the assessor Dr. Schnayer.

[169] Dr. Schnayer stated that he never analysed the root cause of the children’s resistance toward their father. In his first report he stated that the risk of emotional harm to the children was significant if the conflict was not resolved. His second report reiterated this concern. He testified that the risk had increased over time. He also stated that the children’s reactions to their father are out of proportion to reality. He had found in his assessment that J. was a normative parent and the children were well bonded to him. Despite that opinion he did not do a root cause analysis. Dr. Schnayer stated that he would need to be 100 percent comfortable in making a diagnosis of PAS, this would require a high standard because the impact of such a diagnosis is great. In my view that opinion tailored his recommendations and diverted his analysis away from looking into protection concerns relative to his opinion that the children were at ever-increasing risk of emotional harm.

[170] The relevant inquiry by assessors should not be the search for a diagnosis or a label. The relevant inquiry must be the critical review of the actions of the parents as they impact on the children’s functioning and their needs. If emotional abuse is a serious risk the professionals and the protection agencies must attempt to be more specific as to the cause of the emotional abuse and be more specific as to the depth of the negative consequences, both short term and long term on children in each case.
Wow... Just wow. A justice "gets" it when it comes to these "professionals" finally.

Now, here is what was ordered:

Quote:
[191] I make the following order:

1. A.F. is found in Contempt of the order of Thomas J. dated October 24, 2008 and the order of Quinn J. dated, March 5, 2010.

2. Pursuant to the Family Law Rules to enforce my finding of contempt I sentence A.F. to 6 months probation. The terms of her probation being that she shall comply with all of the terms of the custody and access order as set out below.

3. If there is a breach of probation the matter is to be brought back to me for submissions on sentencing for that breach.

... (the order is very complex and too long to post in the thread so it is recommended you read it.)
Contempt order against a parent (mother). Very rare to see and the conditionals on probation are really well thought out by the justice.

Good Luck!
Tayken

Last edited by Tayken; 01-14-2013 at 04:34 PM.
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Old 01-14-2013, 05:12 PM
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Quote:
Originally Posted by involveddad75 View Post
I have to comment on Tayken last post.
In my case the OCL assessor called CAS on myself. For something that she observed. I was in a gas station after I pumped I went inside and left the children in the car. She never approached the car to check on the children, she never observed that they were seated with seatbelts on, that the doors were locked and the windows and or sun roof were open or that I had sight of the car at all times, but instead placed a call with CAS.
How can a assessor for the OCL place a call to CAS and yet remain neutral in their investigation. I would be interested in finding out how I could sue the assessor and the OCL for costs as it was becuase of her recommendation that trial had to occur. Had she done the right thing and removed herself and a new assessor come in and start again the recommendation might have been different. And who calls CAS for leaving a child in a car at a gas bar???
The judge in my case asked the assessor after my questioning on the topic. "What were you thinking?" to which her response was "I wish I had never driven into that gas station."
It should be noted that this was her very first assessment for the OCL. As she had only been hired 4 days prior to being assigned to our family.
I believe she needs additional training and their should be an investigation into how she conducted herself during the assessment as well as after the assessment.
Has anyone been successfull in sueing the OCL and or assessor. She even lied on the final report when she described my behaviour at the disclosure meeting. Which I recorded and what she says I did and said aren't what I said and did.
I feel and it is only my opion that this assessor had never met a father who questioned everything. Who was involved, and wanted to know the correct proceedures. I deal with procedures everyday it's my life and it keeps our industry safe. It also needs to keep our children safe.

Does anyone have a recent OCL training manual they would be willing to share.
This is an incredibly upsetting situation and I'm sorry you went through that. It mirrors our own experiences with a "first time" CAS worker. Met our family for something at the hospital (injured at daycare) and before long 3 year olds were being interrogated in police custody without parents present, custody was given over to the other parent without any proper assessments being done, and lives were forever destroyed. They didn't bother to meet or discuss concerns or even state what their concerns were. They just came in and destroyed everything in our lives and refused to answer any questions.

So sadly I am not surprised to hear of your OCL worker.
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Old 01-14-2013, 05:32 PM
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I find it quite interesting that someone was found to be, and charged, in contempt in family court. I am pleased to see judge has been quite specific that is another violation of court order occurs, the matter is to be brought back to the same judge.
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Old 01-14-2013, 05:49 PM
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Agreed, this is a contempt order that seems to have real teeth. Breech of the order equals breach of probation... jail time!
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Old 01-14-2013, 06:00 PM
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Quote:
This jurisprudence will hopefully be a strong reminder to parents that as stated in other “controversial” jurisprudence posted to this site that generated some concerning comments, which also includes the same quote from Tremblay v. Tremblay 1987 CanLII 147 (AB QB), that access denial can and will be seen as “child abuse”:
HELL-o. Amazing find there.
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Old 01-14-2013, 07:35 PM
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44. Both parents’ evidence is that the police and the children’s aid society decided Emilee should go home with her mother as she was refusing to go with her father. It is not at all clear on what authority the child was released to Ms. Rieschi’s care, since Mr. Vucenovic was not consenting to this and he had a court order for custody and it was not Ms. Rieschi’s access weekend.

Unbelievable!
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