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Political Issues This forum is for discussing the political aspects of divorce: reform to divorce laws, men's rights, women's rights, injustices in the divorce system, etc.

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Old 11-13-2014, 10:34 AM
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Default Denial Of Access, Abuse and Past Conduct

__________________________________________________ ___________________________________

Past conduct (Sec 24)
(3)  A person’s past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c. 1, s. 3 (1).

  • In applying s. 24(2) of the CLRA to this case, the court must consider:

  1. D3's close relationship with her father, the Applicant;
  2. D3'S close relationship with her paternal extended family;
  3. The Applicant’s strong ability to parent and his experience working with children with special needs;
  4. the Applicant’s careful consideration of D3's living arrangements and the support system in place.
In applying ss. 24(3) and 24(4) of the CLRA to this case, the court must consider that:

the Respondent’s allegations of the Applicant’s abusive behaviour are unsubstantiated by the police reports and CAS records and are irrelevant to the Applicant’s ability to act as parent;

the Respondent’s conduct of unilaterally removing the child from the home, denying access or only permitting severely restricted access, and imposing a de facto status quo, is relevantto the Respondent’s ability to act as a parent.

__________________________________________________ ___________________________________

I've heard some here argue that supervision and/or denial of access can be justified by a status quo that was manufactured by one party. It may be true in some cases that children will require supervision due to the lingering awkwardness of having been kept from one parent for so long.

But make no mistake that when analyzing ss. 24(3) and 24(4) of the CLRA, the judge carefully examines the past behavior or both parties, both in a historical and present context. If there's fruitful evidence of denial of access (or severely restricted access) and no telling evidence of abuse, the judge will not tolerate this de facto status quo.

I'm cognizant that there is real emotional, psychological and/or physical abuse occurring everyday whereby individuals are threatened for their life and refuse to report to the police. Evidence is key here. I was recorded for months and my ex could not elicit a reaction potent enough to startle the courts nor the police. This won't be the case with real abusers. Real abuser's leave marks, are in your face and follow a disturbing pattern. Document these patterns. Take pictures of the bruises. Keep the threatening e-mails. The absence of these items in the midst of a access/custody dispute are going to hurt your case.

This pattern is to be documented in any way possible. If the abused are afraid there are services that remain discrete (Dr's for instance). These Dr. reports can be used later in court.

We live in a time and place that is "full of protective services". If you're being abused and you can prove it, call the police, call CAS if children witness, etc. There are restraining orders. There are places they will send you where you can't be found. Hell I didn’t abuse anybody ever in my life and I still don’t know where my ex lives. These services are in place. They work.

The point of this thread was to remind litigant's that upon examining "past conduct", the judge will want to know why somebody was denied access. Why do they require supervision? Talking won't do. Including your friends and family's opinion won't do An argument wont do. A text message with some mean stuff won't do. Sometimes, as in my case, an OCL report won't even do.

What I've learned thus far is that judges are remarkably bright. They really have seen and heard it all. If you want to deny access or demand supervision without proper evidence to do so, you must consider that it will be permanently be sketched on your "past conduct" and that will be far more important to a judge than a loud argument in which your ex called you a name that hurt you which you may have perceived as psychological abuse.

Now if your child is in ANY danger whatsoever there is no waiting. No contemplating and certainly no fear. If your child was slipping off of a cliff you wouldn't hesitate to run and grab him/her of fear for your own safety or that things might change and they'd regrip the gravel. As parents, we innately react to protect our children first and deal with whatever we have to deal with after.

If you ask me, supervision and CAS should go hand in hand. If you're unfit enough to require supervision, CAS should have been involved prior and continue to be involved. This is their territory and should be their decision, not a mother's or a father's.
This was actually part of my factum.
I will reiterate:
__________________________________________________ ___________________________
the Respondent’s allegations of the Applicant’s abusive behaviour are unsubstantiated by the police reports and CAS records and are irrelevant to the Applicant’s ability to act as parent;

the Respondent’s conduct of unilaterally removing the child from the home, denying access or only permitting severely restricted access, and imposing a de facto status quo, is relevantto the Respondent’s ability to act as a parent.
__________________________________________________ __________________________
..and the judge agreed. Everybody's situation is unique though.


Last edited by LovingFather32; 11-13-2014 at 11:29 AM. Reason: spelling
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Old 11-13-2014, 11:05 AM
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I refer to Tayken's thread on abuse VERY often. It's very good.

http://www.ottawadivorce.com/forum/f...ase-law-16809/

My ex put in the police report that my parenting abilities are barely adequate. I pushed her on the swings too hard. I fed her the wrong way. I didn't make her bed the right way. You name it.

I can tell you first hand that I am a great father. I feel I do everything a father's supposed to do and I go out of my way to be goofy, instill rules when needed and get on the child's level. I teach activities of daily living .. for a living. I bring my work home to teach D3 as well. I couldn't get over what I read about my parenting skills in my ex's affidavit's.

Always remember cases such as the following (which Tayken was nice enough to contribute:

Abdelhamid Tayebi v. Salima Oukachbi, 2013 ONSC 6960 (CanLII)
Date: 2013-11-08
Docket: FS-13-0020-00
URL: CanLII - 2013 ONSC 6960 (CanLII)
Citation: Abdelhamid Tayebi v. Salima Oukachbi, 2013 ONSC 6960 (CanLII)

[13] Allegations of abuse may be a symptom of the failure of a relationship. Blame is an inherent part of the allegation. Sometimes it is wholly warranted; other times it is not. When parties are not communicating, any slight or criticism is magnified. There is a tendency to minimize the other spouse’s good qualities and maximize the bad. Warring spouses are rarely in a position to step back and evaluate the other’s behaviour with objective eyes. Nor are they able to critically assess their own behaviour...

[11] The mother argued strenuously that the father has been abusive towards herself and Aniss and is therefore disqualified from being the custodial parent. A useful discussion about domestic violence is found in L. (N.D.) v. L. (M.S.) 2010 NSSC 68 (CanLII), 2010 NSSC 68 (CanLII). At para. 34, Madam Justice MacDonald describes the range of conflict that may occur in a home and its legal implications for custody:
In order to understand whether domestic violence exists within a family it’s [sic] definition and effect must be stated clearly and comprehensively. Unfortunately the words “domestic violence” do and have defined a number of behaviours including isolated or rare incidents in a relationship – a push, a shove, rudeness, disrespect, and name calling all of which are unpleasant to those on the receiving end of these behaviours but which should not necessarily be accepted as an indication that the relationship requires judicial intervention. If these behaviours have no pattern of repetition and leave little if any lasting impact upon the recipient they need not be monitored with the same vigilance as will be the case when coercive control is involved. Counselling programs for persons who are “unpleasant” towards others may be quite different from those designed for persons who resort to abuse as a mechanism of coercive control.



Also, we all know this case


http://www.ottawadivorce.com/forum/f...r-court-14084/

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)


<TABLE cellSpacing=0 cellPadding=6 width="100%" border=0> <TBODY> <TR> <TD class=alt2 style="BORDER-TOP: 1px inset; BORDER-RIGHT: 1px inset; BORDER-BOTTOM: 1px inset; BORDER-LEFT: 1px inset">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. </TD></TR></TBODY></TABLE>Resulting in the final order in section “5. ORDER (issued and entered September 6, 2012)” stating:


Quote:
<TABLE cellSpacing=0 cellPadding=6 width="100%" border=0> <TBODY> <TR> <TD class=alt2 style="BORDER-TOP: 1px inset; BORDER-RIGHT: 1px inset; BORDER-BOTTOM: 1px inset; BORDER-LEFT: 1px inset">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.
</TD></TR></TBODY></TABLE>



Last edited by LovingFather32; 11-13-2014 at 11:13 AM.
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Old 11-13-2014, 11:14 AM
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I think that this a very helpful post to both those who are being falsely accused, and those who have legitimate cases of being abused.
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Old 11-13-2014, 11:16 AM
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Yes Strait.

I want to try and help anybody any way I can. I am helping a mother suffering through DV in PM land right now. Resources, psychological advice (psychologists I know), etc.

I hope there's something for everyone in here.

If you ARE being abused. Proving histories and patterns are so important. Don't let them get away with their terror. Don't let their arrogant butts walk in to court and say "oh yea .. prove it". Build your case. Bury their sorry butts. I have no patience for abusers. But I also have little patience for those who abuse the system.

We have to try and distinguish between these 2 types of abusers. That's the key.

Last edited by LovingFather32; 11-13-2014 at 11:24 AM.
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Old 11-13-2014, 11:38 AM
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I think that this logical, law-based summary pretty much shuts down any argument that one could make about it being okay for one party to deny access to another, in the absence of abuse.

I was a bit blown away by one member that implied I was incorrect in saying that parents "aren't supposed to be be able to" restrict access in the absence of any valid concerns. It is supposedly "only according to me". It is disturbing that the rights of a child to unfettered access to both parents (in the absence of abuse) is still considered by some to be just a matter of opinion.

My ex and I don't even ever consider it an option to withhold access at any time. We consider our weeks sacrosanct and respect them as such. We have very intense disagreements on specific aspects of parenting, but respect the boundaries. When one of us wants time during the other parents week, it is requested and acquired through negotiation and trade-offs.

To my ex's credit, this was established from the very beginning, so I was shocked when I joined this forum and discovered just how frequent and extreme the cases of access shenanigans can be.

Here's hoping that some people will read this thread and "get it".
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Old 11-13-2014, 12:02 PM
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Quote:
Originally Posted by Straittohell View Post
Here's hoping that some people will read this thread and "get it".
I do too.

I want to create threads that educate the public on the facts, the caselaw, the reality. Not my emotions. Sure I've gone through hell. But I'm smart enough to understand that there's a mother just like my ex, doing exactly what she's done .. that has been abused badly.

I would hope that we can be of assistance here to actual victims of abuse as well as expose those that abuse the system. Or perhaps not expose .. but at least warn of the ramifications or consequences associated.

I have a feeling even if they're resistant online they may log off and provide access based on their readings. And if there truly hasn't been any abuse, the best interests to the child has been served. We've changed somebody's mind.

Neither forms of abuse should be tolerated.

Last edited by LovingFather32; 11-13-2014 at 12:12 PM.
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Old 11-13-2014, 02:38 PM
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You've hijacked multiple threads from women and made them all about you or your ex.

Your imflammatory language even got a rise out of me.

You just have an over inflated ego and thats reflected by your thousands of posts and you haven't even made it to case conference yet.

Its all about me me me.....now you want to help abused women? Like you said there's resources out there for free.

Ladies....if you're in Ontario like this dude there is a place called "Luke's Place" google it. They will help you navigate through the legal system.

(905) 728- 0978 They have QUALIFIED counsellors and court workers who will assist you in your legal matters.

Luke was the name of a liittle kid and died at the hands of his abusive dad.
His mom had left the abusive man. The abusive man manipulated the court system and gained access to this vulnerable child. He killed their kid to punish the mom. A true story.
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Old 11-13-2014, 02:44 PM
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Quote:
Originally Posted by LovingFather32 View Post
Yes Strait.

If you ARE being abused. Proving histories and patterns are so important. Don't let them get away with their terror. Don't let their arrogant butts walk in to court and say "oh yea .. prove it". Build your case. Bury their sorry butts. I have no patience for abusers. But I also have little patience for those who abuse the system.

We have to try and distinguish between these 2 types of abusers. That's the key.
You don't have to "bury their sorry butts"
That's not rational thinking in family court.
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Old 11-13-2014, 02:47 PM
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Nice to see you "wantmyfreedom". Good day to you too.
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Old 11-13-2014, 02:49 PM
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Quote:
Originally Posted by wantmyfreedom View Post
You don't have to "bury their sorry butts"
That's not rational thinking in family court.
Pretty sure he's referring to "burying" them under evidence that legitimately proves their case wrong.

Sounds rational to me, and I'm pretty sure that's the epitome of how court is supposed to work.

Have a great day!
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