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Old 11-15-2016, 03:35 PM
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Default Truisms Exposed: High Conflict Parents and the OCL

Whidden v Ellwood, 2016 ONSC 6938 (CanLII)
Date: 2016-11-14
Docket: F-3136/14
Citation: Whidden v Ellwood, 2016 ONSC 6938 (CanLII)
http://canlii.ca/t/gvlt0

Disclaimer and Warning: As it has happened in the past if a current member of this forum is one of the parties involved in this matter simply do not respond to this message and identify yourself. It has happened in the past with case law I have posted and it is better to not be the idiot who responds and exposes themselves. Don't blame me because you are a high conflict parent and are part of a public record now!

This case is more than the simple question posed in para. 1 by the Honourable Mr. Pazaratz:

Quote:
1. So who really writes those section 112 reports?
This case law is much more than that. It is significantly more than just that simple question. Justice Pazaratz’s narrative in this case law delves much deeper into the issues the court system faces when two high conflict parents use the legal system inappropriately. In fact, I am of the opinion that he got para. 1 and missed an opportunity to bring up another question which should have been par. 2.
What is wrong with our legal system?
I will first address para. 1.

Justice Pazaratz was faced with a challenging problem beyond just waring parents. He was faced with two OCL reports. One that recommended joint custody and equal access that was withdrawn by the OCL and a new one that recommended sole custody to one parent and limited access to the other.

Readers need to look beyond the narrative of the story of these two parents and to the following comments regarding the OCL. Justice Pazaratz offers a sobering message to the OCL in para. 70 79,

Quote:
70. But her candid description of her dealings with the OCL – if accurate – raises broader issues.

a. There’s nothing wrong with an OCL investigator reviewing a case with a supervisor. Many decision makers – including judges – sometimes discuss tough fact situations with colleagues, as they struggle to reach their own conclusions.
b. But there’s a world of difference between exchanging ideas, and delegating (or usurping) decision making authority.

c. Johnston’s OCL supervisor had every right to review her work. It may even have been appropriate to make suggestions, or identify areas requiring further consideration.

d. But a supervisor instructing or pressuring a clinical investigator to adopt or exclude certain recommendations -- let alone, a supervisor writing portions of a report -- raises fundamental issues about methodology, transparency and the integrity of the process.
It is clear that there are some challenges with how the OCL in many matters handle cases and Justice Pazaratz is identifying a systemic problem. In para. 72 he reference the Honourable Justice Harper’s case where he makes similar observations:

Quote:
a. In any assessment of parenting skills or a child’s best interests, a specific assessor – usually an individual – is tasked with the responsibility and authority to conduct an investigation and prepare a report.

b. The person who signs the report should be careful to ensure that they are responsible for all of its contents. That’s what the reader is entitled to assume.

c. Where other persons – such as assistants -- are involved in the process, their role and the extent of their participation in the formulation of conclusions and recommendations should be clearly identified in the report. This is particularly important where the people conducting the investigation have differing levels of expertise or authority.

d. Where conclusions and recommendations are generated by multiple authors, that collaborative process hampers scrutiny and testing at trial. Where a recommendation comes from a team, it makes it difficult for counsel to evaluate how the opinion was generated; how it evolved; how it was expressed; the impact of the discussions that took place among team members; and why it ended up to be in the report in the manner that it was.
Both observations are very important for the OCL to consider strongly. Their processes are not transparent and it can have a significant effect on a judge. I can only hope that the OCL updates their policies and governance to heed these two well respected justices now.

Justice Pazaratz offers some advice to the OCL:

Quote:
78. To maintain that standard of excellence – and public confidence -- the OCL would be well advised to provide reassurance in two very distinct ways:

a. Ensure that administrative supervision of clinical investigators does not cross the line into editorial control or behind the scenes manipulation of reports.

b. Demonstrate the courage to intervene – and reassign a file if necessary -- as soon as investigative deficiencies become apparent. Bad investigations cannot and should not be “re-written” by anonymous supervisors. And dubious reports shouldn’t be released in the hope that maybe no one will file a Dispute.
Again, this is not the true value to this case law from Justice Pazaratz. What I am about to explore is significantly more important to the readers of this forum who are often parents facing high conflict situations.

I truly appreciate Justice Pazaratz’s “King Solomon” approach to sparing parents. Rather than punishing them he puts them in situations where they have to expose themselves to the reality of parenting. In this case law he does just that and with incredible grace.
This begins at para. 169:

Quote:
169. As with most separations, these parties started out with a small but manageable list of legitimate complaints and concerns.
a. They could have worked together, followed some professional recommendations, obeyed some court orders, and tried to make this as painless as possible for their daughter.

b. But instead they took a scorched earth approach.

c. They became consumed not just with winning, but with making sure the other party lost.

d. That’s why more than two years after separation; after a five day temporary hearing; after many more motions; and after a 10 day trial – they were each still asking that I force the other party to take a psychiatric exam.
As I have stated a number of times to posters that come to this forum stating that the other parent has mental health issues and needs to be tested that this testing is rarely ordered. Everyone expects it to happen and it never happens. The problem is often not truly a mental health related one but, a conflict related one! That mental health and highly conflicted parents are not one in the same! That we cannot let these kinds of people abuse our public system!

... continued ...

Last edited by Tayken; 11-15-2016 at 03:39 PM.
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Old 11-15-2016, 03:36 PM
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Default ... continued ...

... continued ...

Quote:
170. It is both easy and appropriate to say that this has become a “high conflict” file. But we need to do more than just label relentless litigants. We need to understand that parents like this are completely different – so as a court system we need to treat them differently.
This is why I always warn parents who allege the other parent has mental health issues to consider how they present the evidence. To insure that it is not for the express purpose of hurting the other party’s feelings.

Quote:
a. Like most high conflict couples, the Applicant and the Respondent have come to perceive our court system as an endless forum to advance complaints and criticisms of one another.
b. To a certain extent, that’s understandable. Even momentarily appropriate.

c. The Applicant’s concerns about the Respondent’s alcohol, aggression, and parental judgment are all very relevant to the determination of Taylor’s best interests.

d. The Respondent’s concerns about the Applicant’s mental health, her erratic and confrontational behaviour during access exchanges, and factual misrepresentations (like the availability of daycare at Balaclava school) are also relevant.

e. In the early stages of a family court file, it is quite legitimate for parties to fully outline the problems and concerns, even at the risk of hurting one another’s feelings.

171. But eventually these high conflict disputes reach a tipping point where new complaints and accusations keep surfacing, not at the risk of hurting one another’s feelings – but for the express purpose of hurting one another’s feelings.
Justice Pazaratz rightly observes that high conflict parents have their own agenda. I often see this with the prolific posters who constantly project blame at the other parent who come to this forum. They often come to this forum (and court) to:

Quote:
172. High conflict parents have their own agenda, and it rarely has anything to do with the law.

a. They seek personal vindication. Not resolution.

b. They’ve got scores to settle. Grudges, pain, and retribution – legitimized under the banner of “best interests of the child”.

c. Their mission is blame – or at the very least, deflecting more blame onto their ex.

d. Fundamentally, they view litigation completely differently than we view litigation.

e. And that’s why we delude ourselves when we think it’s possible to force high conflict couples to behave reasonably.
But, Justice Pazaratz being a highly qualified and fair justice goes just beyond the surface observations and proposes a reason for this occurrence which I strongly support:

Quote:
173. Perhaps high conflict couples keep coming back to court because – unwittingly – we provide them with a socially acceptable outlet for their maladjusted and destructive behaviour.

a. Perhaps as a court system we are too nice. Too obliging. Too tolerant.

b. We give embittered parents a forum. Affidavits. Long trials. Motions to change. Contempt proceedings. An arsenal much more sophisticated – and lethal -- than just shouting at one another over the kitchen table.

c. In the courtroom we treat them nicely. Give them water. Listen patiently. Let them get things off their chest.

d. And once they drop their lawyers and represent themselves – as these parties did – days and even weeks of court time cost them less than a trip through a Horton’s drive-thru. It’s a pretty good deal.

e. Perhaps we are so intent on protecting parents’ rights, that we lose sight of children’s rights: the right of children to have somebody step in and make their parents stop fighting -- once and for all.

174. At the end of this trial, both parties gave me a pretty strong clue they are using this court system for their own purposes.
This is where Justice Pazaratz’s King Solomon moment appears in para 179 – 185:

Quote:
179. If convenience is such a motivating factor -- maybe we need to make fighting in court less convenient.

180. If personal vindication and judicial attribution of blame is such a motivating factor – maybe we need to make it clear to perpetual litigants that we’re no longer going to play the blame game. Once they become regulars in the courthouse, there’s a pretty good chance they’re both to blame.

181. If making life unpleasant for your ex is such a motivating factor – maybe we need to make the court experience equally unpleasant for both combatants.

182. Make no mistake: This isn’t just about judicial convenience or public nuisance.

a. High conflict parents exude negativity and tension.

b. If we in the courtroom can’t stand listening to these people act up – presumably while they’re on their best behaviour – can you imagine what it’s like for a child trapped living with that sort of hostility and resentment, 24 hours a day?

c. Angry parents always pretend they hide their feelings from their children. But I don’t believe it for a second. Judges regularly receive reports from professionals about how severely children are impacted by ongoing parental strife. And in this case, the cell phone videos flaunted by both parties clearly demonstrated that no effort is being made to shield Taylor from the hatefulness.

d. Family breakdown is tough on everyone. The pain is real. It takes time to recover.

e. But healing can’t occur while you’re still waging war in court.

f. That’s why – for the sake of the children – we need to find ways to reduce family tension, rather than fuel it.

183. When parents come to court genuinely seeking solutions, we should work tirelessly to help them. As long and as often as it takes.

184. But we have a concurrent obligation -- to taxpayers, and more importantly to the children of relentless litigators – to prevent embittered parents from abusing scarce judicial resources:

a. [b]We need to identify those parents who just come here to fight.

b. And then do everything we can think of to deprive them of future opportunities to fight.

c. We need to anticipate – perhaps even presume – misconduct and non-compliance.

d. And then craft orders which leave parents with as few opportunities to misbehave as possible.

185. In short, sometimes we need to treat parents like children.
I again caution all high conflict parents to read the wise words of the Honourable Mr. Justice Pazaratz and reflect on their own conduct. Heed his warning.

Good Luck!
Tayken
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Old 11-15-2016, 05:10 PM
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That’s why – for the sake of the children – we need to find ways to reduce family tension, rather than fuel it.
Quote:
In short, sometimes we need to treat parents like children.
Really does go out to show the court's respect for parents.. at the end of the day, this is a system that the lawyers created, not the parents. The parents, most, just want things to be fair to everybody and especially to the child - children love both parents.

If the courts give one parent more time than the other parent, or make one parent to make all decisions and the other parent to pay, then they're most definitely fueling it, and most definitely treating parents like children - you can see your child on Wednesday's from 3:30 PM to 7:30 PM

Last edited by trinton; 11-15-2016 at 05:20 PM.
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Old 11-15-2016, 09:40 PM
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Thank you for bringing this to our attention Tayken.

Taxpayers are paying for a family court judge to babysit these people.

When I first started reading the document I noted the trial was 10 days. I thought there would be some "flesh" to the situation.

I note there is much about father's alcohol addiction. I wonder why judge didn't order mandatory drug/alcohol screening. Obvious the father is in denial/lies about his problem. Misery loves company so it might have been appropriate to get mom screened as well.

Too bad the daughter isn't older and on her way out the door and that she has to have such lousy parents.

OCL stuff probably took a year. Another cost to tax payors.

What we need is really good foster families to take in children who are in this situation. Perhaps parents would have a wake-up call.

I found the following to be an outstanding observation of the judge:

76. So at the end of the trial, during closing submissions, I commented that perhaps the only solution was to require that both parties would permanently have to use an institutional access exchange center, whenever Taylor’s school couldn’t be used at the beginning or end of visits. Along the lines recommended by Ian DeGeer. I suggested this might be a simple way to avoid opportunities for conflict.
177. The parties’ reaction to my suggestion was really quite telling:

a. They asked for time to talk among themselves. (Earlier in the trial they claimed they couldn’t even find one another in the court building, but suddenly they both wanted to talk.)
b. After a short break they both advised they had quickly settled this previously insurmountable issue.
c. They would still use a McDonald’s restaurant. One parent would remain inside. One parent would remain outside. Taylor would enter or exit the building on her own.
d. They both expressed confidence this simple plan would prevent any more conflict during exchanges.
e. Why did they prefer their McDonalds’ plan to my institutional exchanges?
f. Because my suggestion of using an institutional access center wasn’t convenient. They didn’t want to have to do all the extra driving to go to an access center. And they didn’t want to have to pay any access center fees.

178. Finally, we had a brief moment of candor.

a. It wasn’t really about Taylor.
b. It was about convenience.
c. Their convenience.
d. The Applicant and Respondent had no qualms about taxpayers footing the bill for days of expensive court time on this issue, when they each perceived they might win and the other party might lose.
e. But as soon as it became apparent that I was contemplating a neutral solution without any attribution of blame – suddenly neither of them needed the judge to decide any longer.

179. If convenience is such a motivating factor -- maybe we need to make fighting in court less convenient.

Last edited by arabian; 11-15-2016 at 10:06 PM.
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Old 11-15-2016, 10:25 PM
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Originally Posted by arabian View Post
I note there is much about father's alcohol addiction. I wonder why judge didn't order mandatory drug/alcohol screening. Obvious the father is in denial/lies about his problem. Misery loves company so it might have been appropriate to get mom screened as well.
Note: The judge recited the order for this to already happen from the Honourable Justice Chappel. That order still stands as a part of this order. The parties agree for this to be a continuance of that hearing. (It is in the begging of this very long order.)

Quote:
Originally Posted by arabian View Post
OCL stuff probably took a year. Another cost to tax payors.
I think it took two years from what Justice Pazaratz stated in the case law.

Quote:
I found the following to be an outstanding observation of the judge:
[I]76. So at the end of the trial, during closing submissions, I commented that perhaps the only solution was to require that both parties would permanently have to use an institutional access exchange center, whenever Taylor’s school couldn’t be used at the beginning or end of visits. Along the lines recommended by Ian DeGeer. I suggested this might be a simple way to avoid opportunities for conflict.

177. The parties’ reaction to my suggestion was really quite telling:

a. They asked for time to talk among themselves. (Earlier in the trial they claimed they couldn’t even find one another in the court building, but suddenly they both wanted to talk.)

b. After a short break they both advised they had quickly settled this previously insurmountable issue.

c. They would still use a McDonald’s restaurant. One parent would remain inside. One parent would remain outside. Taylor would enter or exit the building on her own.

d. They both expressed confidence this simple plan would prevent any more conflict during exchanges.

e. Why did they prefer their McDonalds’ plan to my institutional exchanges?

f. Because my suggestion of using an institutional access center wasn’t convenient. They didn’t want to have to do all the extra driving to go to an access center. And they didn’t want to have to pay any access center fees.

178. Finally, we had a brief moment of candor.

a. It wasn’t really about Taylor.

b. It was about convenience.

c. Their convenience.

d. The Applicant and Respondent had no qualms about taxpayers footing the bill for days of expensive court time on this issue, when they each perceived they might win and the other party might lose.

e. But as soon as it became apparent that I was contemplating a neutral solution without any attribution of blame – suddenly neither of them needed the judge to decide any longer.

179. If convenience is such a motivating factor -- maybe we need to make fighting in court less convenient.
I agree. That was the "King Solomon" moment. I ran out of space to quote it. (That is why I left that quote in from you in my reply because I wanted to double down on it.)

Clearly, the message is not received by the parents who should get the message. (See the previous response from another user... )

Good Luck!
Tayken
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Old 11-15-2016, 10:29 PM
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Really does go out to show the court's respect for parents.. at the end of the day, this is a system that the lawyers created, not the parents. The parents, most, just want things to be fair to everybody and especially to the child - children love both parents.
I disagree and it is unfortunate that you see it that way. The problem in this matter (and many others) is a problem that PARENTS create for themselves. Parents like yourself who try to use the court system to inflict damage on the other parent. Your tactics of trying to get the other parent's lawyer removed and all the other nonsense you have posted are prime examples of this bad behaviour.

As I recall you are in the Hamilton court house from what you have posted. Good Luck as you will end up before Chappel, Pazaratz or Harper when you finally get your "day in court". They are going to eat you alive.

Quote:
Originally Posted by trinton View Post
If the courts give one parent more time than the other parent, or make one parent to make all decisions and the other parent to pay, then they're most definitely fueling it, and most definitely treating parents like children - you can see your child on Wednesday's from 3:30 PM to 7:30 PM
Well, when they have to deal with parents like yourself and other high-conflict motivated "parents" they have to do this. You could learn something from this case law. Alas... You clearly have not.

Good Luck!
Tayken

Last edited by Tayken; 11-15-2016 at 10:39 PM.
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Old 11-15-2016, 10:37 PM
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I think perhaps that parents get so caught up on the winning and losing that they lose sight of the fact that another human being (judge) is having to make very basic decisions, on a day to day basis, on the activities of the child. It has got to suck for a kid to have such a rigid schedule. So much for spontaneity which we all enjoyed in our youth, whether it be deciding to spend the night at a friend's house or going to a movie. Nope child's life is now dictated by a court-ordered schedule. How absolutely horrid that must be.
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Old 11-15-2016, 10:37 PM
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Default Truisms Exposed: High Conflict Parents and the OCL

Quote:
Originally Posted by Tayken
Parents like yourself who try to use the court system to inflict damage on the other parent. Your tactics of trying to get the other parent's lawyer removed and all the other nonsense you have posted are prime examples of this bad behaviour
.



it may appear to be a tactic to you. But it is a reasonable and justified legal action. You wouldn't want a lawyer who has access to privileged confidential information about you representing the other side now would you?

Please tell me what you mean by non sense. I'd like to know is non sense.

Quote:
Well, when they have to deal with parents like yourself and other high-conflict motivated "parents" they have to do this. You could learn something from this case law. Alas... You clearly have not.

Any reason in particular why you have parents in quotes? You're a parent that litigated through the family courts as well right? Perhaps there is something about me as a parent that you do not approve of. Would you like to share?



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Old 11-16-2016, 02:37 PM
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As I recall you are in the Hamilton court house from what you have posted. Good Luck as you will end up before Chappel, Pazaratz or Harper when you finally get your "day in court". They are going to eat you alive.
Wrong. I'm not in the Hamilton Court House. I spoke with a lawyer in Hamilton. That does not mean I am in the Hamilton Court House. You must have not read my posts about retaining out of town vs local counsel. Making assumptions and jumping to conclusions now, are we?

As per eating me alive, I don't drink alcohol, I don't even drink, coffee. None of the things that the father in that case was critisied for are relavant to me. I'm in much better position. My offer to settle to the other party has everything that The Honourable Justice Pazaratz has ordered for the dad in the case you have psoted. That man has more holiday access than I do - I don't have any. Gives me every other reason to continue to push through and marsh towards a trial.

That being said, if I was in fact before the Honourable Justice Pazaratz, quite to the contrary of your statement, OP would be getting eaten alive. Costs would be the icing on the cake.

Last edited by trinton; 11-16-2016 at 02:42 PM.
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Old 11-16-2016, 09:10 PM
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I think family court is a great place to destroy your ex-spouse.

You just need to find the pain points and go for them but you should never openly admit your goals - it is counterproductive.

For SAHM, you need to indirectly paint them as lazy, useless, good for nothing, drains on you and society, then you need to ensure that you get shared custody do their identity/justification as a "homemaker" is eviscerated and they look even more lazy and useless.

For the ex-husband, you let them understand that you are going to exploit them for as long as possible for spousal support,sleep around as much as possible while you do it (you take his money, while servicing other people), while sticking the kids in daycare.

Family court, it's a beautiful place.
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