Case conference on Tuesday...

[jlalex]

Some background first...this Tuesday is our 1st case conference, there are presently no orders of any kind in place, the 2 parties have been seperated approx 8+ years. The husband filed application this last fall for divorce and to ask for joint custody - primary residence with her and set in place a visitation schedule ( he has been visiting his son regularly since seperation and the son even lived with Dad for about 1 year) as well as an order for child support (which he has paid from day one in accordance with the guidelines). The child has lived with the mother for the last 2.5 years.

Her answer to application was nutso, asking for sole custody and spousal as well as she requested the office of the childrens lawyer be involved (not sure why she did that as Dad was not challenging custody)

During the months following the initial application the mothers behavious is outragous and often reeks of PA...in my opinion anyways. We requested the case conference and in fact haven't heard another word from the mother and he lawyer since their answer. In the case conference brief it was stated that the father felt the sons best interests would be better served living with him and his fiance of 6+ years and her 2 children, but would like an assessor to help determine what is truly in the childs best interest. The father has not gone so far as to ask for primary residence, just that an assessor come into the picture. Ok..so thats the background....


A question, during this weekend the mother has called leaving message after phone message saying outrageous things, and most dispicable of all she had their son come on the phone to tell his Dad that although he loves him he doesn't want to live with him..! the child just sounded horrible bordering on tears....This is but one of many prime examples of her attempts to push father further and further out of the picture...when father tried to call back to talk to son to tell him not worry and things will be alright and he loves him no matter where he lives they didn't answer and didn't return his message. She since then has left 3 more messages of hostile nature...

Is there anyway that Dad can get this included in time for the case conference? Can they lawyer just say 'oh by the way...'


As an aside...what is the criteria for a temporary restraining order or to be charged with harassment... in regards to phone calls and messages?

[logicalvelocity]

jlalex,

Its good to see the matter moving forward.

I suspect no significant orders would be made at the case conference other than procedural. Perhaps the court may consider an order to request the involvement of the OCL or may deem that it is not necessary.

The court may direct the matter for further case conference or for interim motion as the next step. The whole process is to get the parties together to discuss the issues and maybe endorse a consent order of the parties if in agreement.

It is unfortunate that the individual is carrying on with such conduct. Usually near the end of the case conference; the Judge will ask if there are any other issues for discussion. This would be your opportune time to bring up the recent events. However, since the information is un sworn, I can't see the court making significant orders on this conduct but bringing it up may just give the opposing party incentive to stop such.

I believe to obtain a restraining order you have to do so on motion with sworn evidence. Contempt of restraining orders can be quasi criminal and the individual could face significant penalties such as fines and or jail time.

lv

[logicalvelocity]

jlalex,

After thinking of this further and the issue of Joint Custody

Have you considered that the individual perhaps may be deliberately making these calls or putting out a trap to demonstrate that a Joint custodial regime of the child may be unworkable? Sometimes some parents will use this strategy or technique to squash such a claim in the face of litigation.

The Kaplanis Court of Appeal decision has pretty much declared that for a successful Joint Custody Regime to be ordered; Historical co-operation and communication in the best interest of the child has to be prevailing.

What I mean is that for eight plus years basically a co-extensive custody regime of the child has been prevailing. The parents have been able to work things out between themselves. This is a strong indication that there is no reason why a Joint custody regime should prevail for the child. However, now since litigation has commenced significant phone calls are occurring. Very suspicious.

Something to think about and discuss with your lawyer - You may want to keep the individuals late conduct off the record until after the case conference as sometimes a Judge may give the parties an indication of how the court will rule at a pending motion.


lv

[jlalex]

excellent point lv...

and I have to say that has crossed my mind more than once. In the years past there was some disagreement but never to the extent and severity that has occured since she received the application for divorce.

We've been keeping copies of all her wild and crazy v-mail messages she leaves us and have transcribed them. Yesterday as a matter of fact she left a message saying that he can't use the messages in court as they are not applicable due to the fact that she didn't know she was being recorded!?!?! I guess she figured she could say all kinds of nasty horrible things as she believed no one would ever find out.

We will pass on the info to our lawyer for a heads up.

thanks for the info as always

[logicalvelocity]

jlalex,

I see their point, but

you can use the voice messages in court as evidence. Its Family Law, not criminal. Rules of evidence can be relaxed at times. When the best interest of a child is on the line - anything can be relevant. You can transcribe what was said in the messages in an affidavit and back up the recording of same as an exhibit to avoid here say. It would be up to them then to take action to strike said paragraphs and associated evidence from the record.

However, I would look at their motives for such recent conduct considering they are pursuing a sole custody regime in the face of litigation. This strategy is no secret and courts are aware of such tactics.

See Kaemmle v. Jewson, 50 R.F.L. (3d) 70 , Salhany J.
[/I] attached to this thread:

http://www.ottawadivorce.com/forum/s...ghlight=jewson


They obviously know now that anything they say or voice messages may be recorded so with that said, you may see a different conduct.


lv

[jlalex]

another question....

Although the Dad is trying his best to be co-operative, at times it is nearly impossible with the mother screaming and yelling and making crazy accusations. In an effort not to get hostile with the mother, the father just simply hangs up the phone to end the conversation. I have even tried at times to be a go-between hoping to diffuse hostilities but all she does is scream at me instead, you can't even get a word in edgewise. She is completely unreasonable, trying to dictate if and when and where visits are to take place, what kind of food the child eats when he's here, and plain old making stuff up that never happened...

Lately the father hasn't been able to talk to the child because whenever he calls there she answers the phone and it eventually ends up in Dad hanging up the phone to no longer be subjected to her abuse. He has only talked to his son once in the past 2 weeks although he has left close to a dozen messages.

Is there anything else the Dad can do to try do to re-establish contact, up until these proceeding began they talked almost daily. This has been very difficult on the Dad, and I can't even imagine how difficult this has been on his son. Dad has done everything in this power to not let this affect his son, but then the mother is sitting there reading all the court documents to their son...things he shouldn't even be privy to!

In the case conference brief our lawyer has asked that temporary orders be made for access both visits and by phone, child support and asking that the office of the childrens lawyer become involved to help assess the childs living situation. Hopefully the judge will grant orders regarding these issues..I guess we will have to wait and see....

[logicalvelocity]

jlalex,

Although the Dad is trying his best to be co-operative, at times it is nearly impossible with the mother screaming and yelling and making crazy accusations. In an effort not to get hostile with the mother, the father just simply hangs up the phone to end the conversation.

This is suspicious conduct in the face of litigation. However, to me the father is doing the right thing. Perhaps formal letter, communication journal or email may be a better to alleviate the havoc.

Because the individual is aware that telephone conversations are being recorded, they may be more reasonable and more respectful.

I have even tried at times to be a go-between hoping to diffuse hostilities but all she does is scream at me instead, you can't even get a word in edgewise.

This individual appears angry. Perhaps, this is the result of the divorce application in itself. For some, divorce is equivalent to death and have a difficult time accepting. Has this individual moved on with their life by way of a new partner?

She is completely unreasonable, trying to dictate if and when and where visits are to take place, what kind of food the child eats when he's here, and plain old making stuff up that never happened...

The late Mr. Justice John Sopinka of the SCC in the decision of the highly cited Young v. Young had this to say in regards to this conduct:

... The long term value to a child of a meaningful relationship with both parents is a policy that is affirmed in the Divorce Act. This means allowing each to engage in those activities which contribute to identify the parent for what he or she really is. The access parent is not expected to act out a part or assume a phony lifestyle during access periods. The policy favoring activities that promote a meaningful relationship is not displaced unless there is a substantial risk of harm to the child....

Read this thread in regards to telephone access:

http://www.ottawadivorce.com/forum/s...ead.php?t=2580

Lately the father hasn't been able to talk to the child because whenever he calls there she answers the phone and it eventually ends up in Dad hanging up the phone to no longer be subjected to her abuse. He has only talked to his son once in the past 2 weeks although he has left close to a dozen messages.

To me, the individual is clearly demonstrating their inability to parent the child effectively by putting her own needs ahead of the child’s. A parent centered on the child would facilitate a meaningful relationship between the child and other parent.

Is there anything else the Dad can do to try do to re-establish contact, up until these proceeding began they talked almost daily. This has been very difficult on the Dad, and I can't even imagine how difficult this has been on his son. Dad has done everything in this power to not let this affect his son, but then the mother is sitting there reading all the court documents to their son...things he shouldn't even be privy to!

It appears that you have tried to negotiate with the individual and have not gained any ground. Has mediation been considered?

Sometimes resolving issues can be difficult and there is no other solution than to seek the assistance of the Court. After the case conference, if no consent orders are issued or significant other orders; Dad may have pursue relief by way of interim motion to resolve such. If the individual is involving the child in this litigation by making them privy to court documents and discussing adult issues; the court will not condone this conduct. Again, their ability to parent the child effectively is questionable.

In the case conference brief our lawyer has asked that temporary orders be made for access both visits and by phone, child support and asking that the office of the childrens lawyer become involved to help assess the childs living situation. Hopefully the judge will grant orders regarding these issues..I guess we will have to wait and see....

Generally, a Judge will not endorse custody and access orders at a case conference unless it is on consent of the parties. Going to court is really a roll of the dice. One really doesn’t know what is going to happen and how the court will rule. I do suspect if these issues are brought up, the Judge may give a recommendation to the parties for consideration and allow additional time for negotiate a consent order.

lv

[catchison]

A sure way to stir up trouble

In response to the amazement that you seem to have over the exwifes response to the fathers action. It is not uncommon for mothers to want to have primary custody of the child, and in most cases young children are better off with their own mother. If the husband has moved on with a new woman (assuming this is you) the child is perhaps now all she has, since her marriage has been destroyed and he has moved on to a new life with new children to raise ( yours I assume). It is unfortunate that he (and you) did not leave well enough alone, if he was having regular dialogue with his son prior to this court action being taken. Now you are all going to spend money needlessly in court actions. You feel she is being irrational, but probably not any more so than any other mother in her shoes. As the second wife, it is easy to accuse her of all manner of irrational behaviour, but perhaps some compassion is in order instead.
I urge you to back away from judging his exwife, and instead encourage him to work in the interest of his son, by considering the welfare of the childs mother as well. After all, the best way to hurt a child is to hurt his mother. This will serve you all better than lining the pockets of the lawyers that will be happy to see you all squaring off in court. Years from now, this child will hold you accountable for the suffering that you have initiated by starting what sounds like an unnecessary court action.

[Mess]

You're replying to a situation that happened 3 years ago. I'm sure they're out of court by now.

As far as it may be something that would be of advice to the general poplulation, I disagree that children are generally better off with mothers or that fathers in general should help their children by helping the mothers. This is sexist, gender based thinking and it has nothing to do with individual people with individual problems.

When a spouse is being abusive, the solution is not to bend over backwards to "help" the abuser. That is absurd and you won't find any woman's shelter giving that advice out. Why would you give it to an abused male?