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Old 09-04-2012, 03:33 PM
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Default Using OCL report at motion stage....

Hello All

Just came across another fresh decision by Pazaratz J regarding using OCL report on motion stage in eve of the trial.

Justice Pazaratz as always provided good analyses of both sides of the question.
Here is the link:

2012 ONSC 4696 (CanLII)

I am sure Taken will provide detailed analysis of that particular decision.

WD.
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Old 09-04-2012, 04:19 PM
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Originally Posted by WorkingDAD View Post
Hello All

Just came across another fresh decision by Pazaratz J regarding using OCL report on motion stage in eve of the trial.

Justice Pazaratz as always provided good analyses of both sides of the question.
Here is the link:

2012 ONSC 4696 (CanLII)

I am sure Taken will provide detailed analysis of that particular decision.

WD.
With great pleasure too. So far favourite quote:

Quote:
19. There can be no presumption that an assessor’s recommendations will – or should -- inevitably prevail. The court cannot delegate decision-making authority to the assessor. Dunnett v. Punit 2006 CarswellOnt 7259 (O.C.J.). Beyond concerns about disrupting the existing status quo, the court must consider the potential impact of creating a new status quo on the eve of trial. Interim implementation of an assessor’s recommendations can be far from a benign stop-gap measure. It can affect the trial and its outcome.
This is case law that all "custody and access" evaluators, lawyers and others should become intimately aware of.

More details to follow.

Good Luck!
Tayken
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Old 09-04-2012, 04:37 PM
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20. In some interim decisions courts have drawn a distinction between custody and access recommendations, more readily implementing assessor’s recommendations in relation to the latter. I prefer the analysis of Zisman J. in Benko (supra) in which she noted whether the issue is custody or access, the court should exercise great caution in relying on the untested observations and recommendations of an assessor.
Just so many excellent observations on custody and access evaluations in this one.
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Old 09-04-2012, 04:49 PM
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Notable though is that the judge referenced facts and observations from the report. Conclusions, opinions, recommendations were set aside to be examined at trial.

The motion decision was strongly based on incidents from the report. As such, it is certainly worth bringing forward such a report.

The applicant in this case appears to be a train wreck; something here that I see frequently is that her case suffered considerably by not providing complete information or a parenting plan. Whether it would have changed things or not, always always always address every issue in your case; don't leave things unanswered.
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Old 09-04-2012, 04:58 PM
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Quote:
Originally Posted by Mess View Post
Notable though is that the judge referenced facts and observations from the report. Conclusions, opinions, recommendations were set aside to be examined at trial.

The motion decision was strongly based on incidents from the report. As such, it is certainly worth bringing forward such a report.

The applicant in this case appears to be a train wreck; something here that I see frequently is that her case suffered considerably by not providing complete information or a parenting plan. Whether it would have changed things or not, always always always address every issue in your case; don't leave things unanswered.
I think key part here that parties admit what OCL said in that particular area...

Quote:
36. The arrival of the s. 112 report does not in itself constitute a material change in circumstances. But the observations, situations, and worsening problems reported by the clinical investigator constitute new and troubling information. Notably, many of these ongoing problems are confirmed by the parties themselves.

37. While caution is required, the court cannot ignore:

a. The Applicant’s continuing problems organizing and prioritizing the children’s lives.
b. Her completely uncertain residential plans.
c. Her vague and unsatisfactory explanation about leaving the children unattended overnight on June 3, 2012 -- in the context of ongoing complaints about a pattern of neglect.
d. The Applicant’s conspicuous failure to provide reassurance that she has adequately addressed employment and child-care issues.
e. The reality that – on consent – the children will now be attending school in the Respondent’s district.
f. The obvious benefit to the children of bringing structure and security to their situation in time for the start of the new school year.
g. The virtual certainty that the “alternating week” status quo will eventually come to an end – no later than the November trial – based on universal comments by the Applicant, the Respondent and the clinical investigator that this arrangement is jeopardizing the emotional well being of the children.
I am pretty sure if that would be just report order would be different... I should agree with you Mess that applicant in this case is total train wreck and she basically killed her case by her own conduct. And lets not oversee what impact lies on part of the Applicant had on judges's decision...
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Old 09-04-2012, 06:56 PM
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Notable though is that the judge referenced facts and observations from the report. Conclusions, opinions, recommendations were set aside to be examined at trial.
Actually, they were "untested observations" and not "facts" per-say. The only fact referenced was that both parents are causing the issue.

Quote:
Originally Posted by Mess View Post
The motion decision was strongly based on incidents from the report. As such, it is certainly worth bringing forward such a report.
It will be interesting to see how this one unfolds at trial under proper examination and what "assumptions" the OCL report is based on that are untested.

Quote:
Originally Posted by Mess View Post
The applicant in this case appears to be a train wreck; something here that I see frequently is that her case suffered considerably by not providing complete information or a parenting plan. Whether it would have changed things or not, always always always address every issue in your case; don't leave things unanswered.
Often, when facing Section 30/OCL you don't know what is "unanswered" until the final report comes through. This is why they have to be tested at trial and not decided "final" on motion. They generally contain more hearsay than "facts" to the matter.

Many parents try to "win on motion" without thinking about the larger picture that all matters are either settled final on "consent" or at trial without consent. Motions are just a step to trial...

This is the saddest quote to have to read in the decision:

Quote:
The virtual certainty that the “alternating week” status quo will eventually come to an end – no later than the November trial – based on universal comments by the Applicant, the Respondent and the clinical investigator that this arrangement is jeopardizing the emotional well being of the children.
What parents don't realize that all their hearsay, allegations and "one-upping" the other just demonstrates to the court that "status quo will eventually come to an end" at trial, based on their own conduct before the court.

Good Luck!
Tayken

Last edited by Tayken; 09-04-2012 at 06:58 PM.
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Old 09-04-2012, 09:00 PM
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Well, with due respect, the judge identified the following points from the report that he considered relevant to his decision:
Quote:
28. In this case the OCL’s s. 112 report is detailed and troubling. It includes information from the parents, the children, and numerous collateral sources including CAS, the police, health care providers and educators. I am mindful that many of the facts are contentious, and the author’s conclusions and recommendations are untested.

29. However, there are observations and undisputed facts within the report which – combined with the evidence of the parties themselves – highlight the need for immediate intervention to address urgent issues.

30. The most pressing issue is a fundamental concern about the children’s safety while in the care of the Applicant mother:

a. The Applicant is a single mother who, at various times, has had to work evenings or overnights.
b. The Respondent has repeatedly expressed concern the Applicant leaves the children unattended for extended periods, including up to four hours after school each day.
c. The children have confirmed much of what the Respondent says.
d. At a disclosure meeting on May 11, 2012 the clinical investigator advised the parties her recommendation was going to be a continuation of the equal time sharing arrangement. While the OCL had many concerns about the Applicant, the investigator was also mindful of the long history of the children having resided primarily in the Applicant’s care.
e. However, at the disclosure meeting the clinical investigator clearly and repeatedly advised the Applicant that she was never to leave the children alone under any circumstances.
f. Less than a month later –before the final s. 112 report was released – the same issue dramatically arose once again.
g. On the evening of Sunday June 3, 2012, the Applicant initially called the Respondent advising she was working that evening and asked him to keep the girls overnight and take them to school in the morning. However, the Applicant then changed her mind, and picked up the children, advising they would be left with their aunt for the night.
h. The Applicant ended up taking the children home and leaving them unattended while she went to work overnight. (She later explained she fell asleep and when she woke up she hurried to her workplace and forgot she hadn’t called her sister to care for the children.)
i. The police became involved, and the children were found home alone after midnight. When the police contacted the Applicant at work she attempted to deceive them, advising that the children were safe with her sister. She hurried home attempting to rectify the problem, not realizing the police were already at the house with the children.
j. The Applicant has now been charged under the CFSA for leaving the children alone.
k. The Applicant’s reply materials on this motion gloss over the incident – and the apparent recurring problem of her leaving the children unattended.
l. The Applicant’s affidavit offers no explanation or reassurance this same problem will not arise again. She has provided no information about her employment, her work hours, or child care arrangements.
m. She has shown no insight about the danger of leaving young girls alone for extended periods, notwithstanding the Respondent’s repeated complaints about this – and notwithstanding the OCL social worker’s very specific admonition on the topic.
n. The Applicant’s efforts to deceive the police that evening are even more troubling in the context of other evidence the Applicant has also lied to CAS and to the OCL about similar problems.
o. Following the June 3, 2012 incident, the OCL changed its position: Alternating weeks are no longer recommended. Instead, the OCL suggests the Respondent’s time should increase, primarily during weekdays (which coincides with the OCL’s separate recommendation the Respondent should have decision making over children’s issues such as education). The Applicant’s blocks of time should be decreased, and focus on weekends, to reduce her need for child care.

31. The OCL clinical investigator expressed other serious concerns:
a. The Applicant’s decision on June 3, 2012 to leave the children home alone rather than allow them to spend an extra overnight with the Respondent reflects a broader concern about ongoing parental alienation by the mother.
b. The Applicant openly states she believes the Respondent has nothing to offer the children, and everyone would be better off if the Respondent was simply out of their lives. She feels he is a terrible person and blames him for everything bad in her life.
c. The clinical investigator expressed concern the Applicant is making it difficult for the children to feel free to love their father without emotional consequences from their mother. And the equal time sharing arrangement (combined with daily phone calls) gives the mother significant opportunity to undermine the children’s relationship with their father.
d. Both parents say the week about arrangement is very disruptive for the children.
e. Alternating weeks requires ongoing communication and co-ordination between parents. But the Applicant and the Respondent don’t communicate at all. They don’t trust each other. They can’t work together. Necessary information is not efficiently conveyed back and forth between households.
f. The Applicant lied about a taped telephone conversation in which she pressured one of the children to talk privately, quietly, and keep secrets from the Respondent.
g. The Applicant has lied to school authorities about the Respondent, and has interfered with the Respondent’s ability to monitor and be involved with the girls’ ongoing educational issues. The Respondent has been more consistent and effective in dealing with their school.
h. While the Applicant emphasizes that CAS has no concerns about her, the OCL investigator feels “CAS is heavily reliant upon Ms. J.L.M.’s willingness to be forthcoming with them.” The OCL questions whether the Applicant has been any more honest with CAS than she has been with other service providers. A CAS letter dated June 26, 2012 described the Applicant as cooperative, and stated there are “no protection concerns” in relation to either parent.
In his paragraphs 18-27 he details the circumstances and reasons when an assessment should be considered pre-trial, in order to explain and justify his inclusion of the details that follow. Again I absolute agree that the justice rejects inclusion of the recommendations, however he is absolutely allowing the details of the report to influence his decision, otherwise we wouldn't see them included in the decision.

I don't see that this decision suggests that it is a waste to try include an assessment at a motion hearing. It suggests specific ways it should be used, to support fact, and ways not, to provide professional opinion.
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Old 09-04-2012, 09:43 PM
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Quote:
Originally Posted by Mess View Post
Well, with due respect, the judge identified the following points from the report that he considered relevant to his decision:


In his paragraphs 18-27 he details the circumstances and reasons when an assessment should be considered pre-trial, in order to explain and justify his inclusion of the details that follow. Again I absolute agree that the justice rejects inclusion of the recommendations, however he is absolutely allowing the details of the report to influence his decision, otherwise we wouldn't see them included in the decision.

I don't see that this decision suggests that it is a waste to try include an assessment at a motion hearing. It suggests specific ways it should be used, to support fact, and ways not, to provide professional opinion.
I may be wrong ofcourse but as I read it the key is here

Quote:
29. However, there are observations and undisputed facts within the report which – combined with the evidence of the parties themselves – highlight the need for immediate intervention to address urgent issues.
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Old 09-05-2012, 06:50 AM
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Quote:
28. In this case the OCL’s s. 112 report is detailed and troubling. It includes information from the parents, the children, and numerous collateral sources including CAS, the police, health care providers and educators. I am mindful that many of the facts are contentious, and the author’s conclusions and recommendations are untested.

29. However, there are observations and undisputed facts within the report which – combined with the evidence of the parties themselves – highlight the need for immediate intervention to address urgent issues.
All "observations" and "undisputed facts" will be heard at trial for final decision. The OCL report was not "FINAL" nor does the motion end the matter and it will be interesting to see how the OCL report when cross examined by both parties tests the "evidence".

Key point to note: The judge does not refer to the "OCL Report" as "evidence". But, as "observations" and "undisputed facts".

The argument isn't that the report was useful in helping the judge evaluate the "evidence of the parties" but, the determining factor was the parties own conduct before the courts and not necessarily the OCL's "report". Nor was the OCL investigator called to be cross examined.

The "immediate" needs of the children involved were identified and decided upon "without consent" (to quote the judge) but, a trial can overturn the whole order resulting from this motion. In this matter in particular it may be difficult as the conduct of one parent does shine through.

Very interesting that the order is split on what was ordered "on consent" and what was ordered "without consent" on a temporary basis.

All the evidence for which the decision was based on was parental conduct which was probably the "evidence of the parties themselves" for which the determination was made on affidavit evidence:

Quote:
37. While caution is required, the court cannot ignore:

a. The Applicant’s continuing problems organizing and prioritizing the children’s lives.
b. Her completely uncertain residential plans.
c. Her vague and unsatisfactory explanation about leaving the children unattended overnight on June 3, 2012 -- in the context of ongoing complaints about a pattern of neglect.
d. The Applicant’s conspicuous failure to provide reassurance that she has adequately addressed employment and child-care issues.
e. The reality that – on consent – the children will now be attending school in the Respondent’s district.
f. The obvious benefit to the children of bringing structure and security to their situation in time for the start of the new school year.
g. The virtual certainty that the “alternating week” status quo will eventually come to an end – no later than the November trial – based on universal comments by the Applicant, the Respondent and the clinical investigator that this arrangement is jeopardizing the emotional well being of the children.
From this point forward the parent in question has one and only one option. Address items a through g or be an every other weekend.

Note the use of "universal comments" versus "universal evidence" in (g). Yes I am nit picking but, when reviewing case law the details of every word matters as if there is one mistake, error in law, etc... An appeal can be forthcoming. What I find interesting with the orders put forward by Justice Pazaratz is the incredible level of detail he puts in separating "observations" from "evidence" and relying upon that which is truly evidence before the court and only using OCL reports as a guide and not "fact" until tested at trial and reminds everyone of this in the decision.

Not trying to argue the OCL report is "useless" but, that it is as the judge clearly identifies "untested" and the only place to properly test evidence at this point and a report is... Unfortunately, at trial and with an order like this unless the other parent runs out of money (but I suspect has LAO certificate) this matter will go to trial.

Will the trial decision be different than this motion? Can't predict that one... We all know how trials can change the tide of "status quo" right WorkingDad?

Weight was given to the OCL report but, as observations. The decision in this motion was based on affidavit evidence and oral examination. The report played into it but, considering the matters it was decided upon, I am doubtful that the OCL report brought any of the cogent and relevant evidence forward as "new evidence" that the party applying for the motion didn't already have and couldn't have already gotten on motion without an OCL report.

Note the "her" or "Applicant" which forms the basis of the order. (a) through (e) are all based on the Applicant's own conduct. (f) is an application of CLRA "best interests" and (g) emphasizes the fact that the court as defined in case law will not order joint custody in this matter and the threshold for "parallel parent" based on the Applicant's conduct has destroyed that opportunity for these children too.

All of which is completely unfortunate because the patterns of behaviour outlined in this order will probably only escalate after trial as the Applicant tries to regain control of her "property" (children) from the Respondent.

Again, another Bruni v. Bruni situation where one (or both) of the litigants in this matter may be exhibiting a personality disorder that with treatment could solve more problems than the court could ever do in an order. But, alas the court cannot order a parent to go get proper help that isn't "litigation". This just highlights the need for real clinical intervention in Family Law. The Applicant possibly has significant mental health issues but, the court is left powerless to truly help these children other than eliminating one of the parents. Very sad considering we live in a country with universal health care but, we cannot force someone to seek help. Even after this order I highly doubt that the Applicant will do the right thing, seek help and demonstrate to the court that they can be a parent.

Avoidance of one's own personal issues and the projection of blame will only continue in this matter after the trial.

Good Luck!
Tayken

Last edited by Tayken; 09-05-2012 at 07:14 AM.
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Old 09-05-2012, 06:58 AM
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Quote:
h. While the Applicant emphasizes that CAS has no concerns about her, the OCL investigator feels “CAS is heavily reliant upon Ms. J.L.M.’s willingness to be forthcoming with them.” The OCL questions whether the Applicant has been any more honest with CAS than she has been with other service providers. A CAS letter dated June 26, 2012 described the Applicant as cooperative, and stated there are “no protection concerns” in relation to either parent.
This is what drives me completely bonkers with the "clinicians" (social workers) who are in the OCL, CAS and do Section 30 evaluations!

One governing body says no problem, the other body says there is a problem. This just highlights the need (which I bitch about) for clinical standards in evaluating parental neglect/maltreatment/abuse.

How can CAS say everything is fine and OCL say the opposite? Where does the accountability lie in how these clinicians conduct their "clinical practices"?

)*#($*#(!

Ombudsman where are you?

Good Luck!
Tayken
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