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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:
- D3's close relationship with her father, the Applicant;
- D3'S close relationship with her paternal extended family;
- The Applicant’s strong ability to parent and his experience working with children with special needs;
- 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.
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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:
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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.
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..and the judge agreed. Everybody's situation is unique though.
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