I think I cracked the code...

[baldclub]

As I worked on my settlement conference brief, for the umpteenth time I discovered this piece of gold from my ex's case conference brief, dated August 2010:

“During the summer months, I would be open to negotiating a true shared custody arrangement where the children spend equal amounts of time with each of us. I have always believed that children should be raised by their parents and not by babysitters. By sharing custody during the summer months, the children would maximize the time they spend with their mother and father and minimize the time they would spend in a third party’s care.”

Any comments about how fundamental this can be to to my case and my eternal search for 50/50 shared residence request?

My whole case now revolves around that. Well no, my whole case revolves around trying to prove with evidence that I am focused on the children's best interest and some of her behaviour has not.

I just can't believe I missed that, most likely due to the piles and piles of documentation to go through. Unfortunately I'm still not ready because writing this case conference brief as I was going to trial, putting everything in there; once settlement conference brief ready I plan on asking for a motion just on access, because it looks like earliest sett. conference dates are for next year.


Quick background:

• very high conflict separation
• separated since January 2009, left residence August 2009
• lived by necessity within 35 min of kids while still exercising as much access as I could
• temp court order: joint custody with a EOW with weekly mid week visits
• moved back to town as soon as I could, April 2011, within school district (I arranged for bus no problem)
• same day I'm moving back, OPP charge me with domestic assault dating from two years prior: charges stayed, no trial
• settlement conference on my request to ask for 50/50 shared custody, September 2011
• judge orders OCL involvement but no trial, no temp order for better access
• 18 months after back in town and still no shared residence
• OCL only waiting for me to go to settlement conference to reveal her results

[Nadia]

Are case conference briefs part of the continuing record? I always thought conferences were treated like closed mediation, anythng that is submitted as a offer or effort to settle is not seen by the motion/trial Judge

The only exception to this being, if you were submitting for costs AFTER the Judgement was rendered and wanted to reference efforts to settle the issue (including Offers to Settle), in which case you could reference any offers made by the opposing party and your willingness to accept. The argument being that if the Judgement rendered is exact or above to what you were willing to settle upon, the subsequent litigation was unnecessary.

Perhaps someone with more legal background can weigh in here.

[firhill]

Are case conference briefs part of the continuing record? I always thought conferences were treated like closed mediation, anythng that is submitted as a offer or effort to settle is not seen by the motion/trial Judge

I think you're right. Tayken addresses the question in this thread.

To better explain...

1. The confidentiality of the "mediation" at a "Conference" (Settlement, Case, or Trial) is an attempt to negotiate a resolution. 17.(24) requires that the information disclosed at a "Conference" be held in confidence and not used elsewhere. This means you can't say, attach a brief submitted at a conference to an affidavit, or state something said at a conference unless it is in relation to something that was actually settled and reflected in an endorsement/order.

2. Rule 17.(25) strictly forbids it unless it is a "child protection" case. This is the only allowable exception to the Rule.

[baldclub]

So, if she writes two years ago that she's all for shared custody, that it's been her life long belief, I T can't say: I agree, let's do it, put your money where your mouth is? I can't point out inconsistencies?

[Nadia]

Well, did you accept or consider her proposal at the time? If you did not, did you have reasonable grounds/reasons for not considering it?

Offers to settle are usually made with view that it is the "best" offer being put forward in an effort to settle. It does not mean the party needs to stick to what they had offered as a way to settle the issue thereafter in their motion materials.

Was the offer to settle she put forward time sensitive? For example, did it state that it was open only until a specific date. Or did it say it was open until 1 minute after a motion/trial hearing?

If the offer is still on the table, you could respond indicating that you are willing to consider this as a starting point and a step in the right direction.

If it has expired, there is nothing stopping you from putting forward the same offer to her albiet two years later.

[baldclub]

I have taken two weeks both in July and August since temporary court order. I asked for 50/50 officially through my lawyer the month before she stated she was all for true shared custody. Does this answer your question Nadia?

[baldclub]

I see it was her reply to my motion, not an offer to settle. have taken two weeks both in July and August since temporary court order. I asked for 50/50 officially through my lawyer the month before she stated she was all for true shared custody. Does this answer your question Nadia?

[Nadia]

The timing of all this is a little confusing.

You are waiting for a settlement conference to take place whereby the OCL will provide a oral finding of their report to both parties?

But you were going through some old papers and found that two years ago she had proposed a shared equal access arrangement for the summer months?

But now, that position is contrary to her opposition to shared custody/access?

And you want to catch her out for being inconsistent?

Or you want to re-visit the proposal she put forward back then?

The proposal put forward was in her reply motion material and not a case conference brief as previously stated? In which case yes, that would be part of the continuing record.

What are her reasons for opposing a shared custody/access arrangement?

[baldclub]

Yes, her earlier position (life long belief she called it) is contrary to get opposition now for shared custody/access. Yes, I want to"catch her out for being inconsistent"as you put it.

Why is she contrary? Only once has she ever said why, in an email over a year ago, stating the kids were well adapted. She simply does not respond to any requests

Everything is peppered with words like hostile, threat, harassment ... you get the gist.

The two truisms that judge Pazaratz points out in working dad's case: status quo and conflict.

[Mess]

Whatever her position was in the past, she has obviously changed her mind. Your job isn't to show that she changed her mind, your job is to show that shared parenting is in the best interest of the child.

If she is claiming that she held a lifelong belief that shared parenting is bad, your written record has some relevance. Personally I would submit it and try to show that it is relevant, but there is a good chance a judge would ignore it.

[Nadia]

Agree with Mess here - you should be focusing on making your case for shared custody/access. That is going to be the main part of your case.

But I also see where you are coming from on this. You should include her reply affidavit in your materials to argue that two years ago she was "open" to the idea of shared custody/access over the summer months. As indicated by...dated and attached as ... Then you could argue if shared access/custody was ok with her two years ago, why is it not acceptable now?

If anything with you moving into the school district and therefore closer to the child/children's school, you are in a better position to make 50/50 happen.

Remember the emphasis should be placed on her having being "open" to the idea of shared access/custody not that she is being "inconsistent."

[baldclub]

Hi, the focus is on the best interest of the children. My point is to show how constructive and positive my parenting plan is, how it's in the children's best interest. The law is kind of vague in defining what the best interest of the child is though right?
I switched from offering a schedule that was 50/50 but revolved around her work schedule to now one that is only about the kids, alternating weeks as the kids want and Cas actually talked to me about, and what I had initially talked about. My kids are 14, 12 and 9 by the way.

[Nadia]

Completely misread. My apologies.

[baldclub]

Whatever her position was in the past, she has obviously changed her mind. Your job isn't to show that she changed her mind, your job is to show that shared parenting is in the best interest of the child.

Thanks Mess. Again, my job is to show that shared residence and parallel parenting are in the best interest of the children, and that she once believed that also - although not in practice.

Hence, still looking for case law in regards to shared residence. Any tips, anyone?

[Tayken]

As I worked on my settlement conference brief, for the umpteenth time I discovered this piece of gold from my ex's case conference brief, dated August 2010:

“During the summer months, I would be open to negotiating a true shared custody arrangement where the children spend equal amounts of time with each of us. I have always believed that children should be raised by their parents and not by babysitters. By sharing custody during the summer months, the children would maximize the time they spend with their mother and father and minimize the time they would spend in a third party’s care.”

Too bad this is in a Case Conference Brief. It is not a sworn (affirmation to the truth - affidavit) document, cannot be entered into the continuing record and holds no weight in any proceeding before the court.

It is even more useless evidence attached to another Conference, for which is closed mediation and for which a judge in accordance with the Family Law Rules cannot order on a substantive issue (child custody and access).

The whole statement is not very "brief" also for what the courts expect for a CC brief by the way. Judge didn't probably even read it.