Announcement

Collapse
No announcement yet.

Order for questioning at Settlement Conference

Collapse
X
 
  • Filter
  • Time
  • Show
Clear All
new posts

  • Order for questioning at Settlement Conference

    2nd SC but already have a date for trial management conference and set for trial.

    I would like to question my ex prior to trial as to date there are numerous wild claims and accusations about my parenting, how the kids feel about me etc without a shred of evidence submitted to support to date.

    Anyone know what the chances are for a justice to agree to make an order for questioning at a SC? Is there a way to word this / approach this for best success?

  • #2
    Originally posted by DontGiveUp View Post
    2nd SC but already have a date for trial management conference and set for trial.

    I would like to question my ex prior to trial as to date there are numerous wild claims and accusations about my parenting, how the kids feel about me etc without a shred of evidence submitted to support to date.

    Anyone know what the chances are for a justice to agree to make an order for questioning at a SC? Is there a way to word this / approach this for best success?
    You don't need a judge to order this - just request it. My ex's lawyer just sent my lawyer a request and we showed up.

    If he has no proof though, why go through the expense? Just deny the allegations an move on.

    Comment


    • #3
      Originally posted by HappyMomma View Post
      You don't need a judge to order this - just request it. My ex's lawyer just sent my lawyer a request and we showed up.

      If he has no proof though, why go through the expense? Just deny the allegations an move on.
      Exactly.

      There is a risk that you could inadvertently introduce evidence that wouldn't have been disclosed.

      On the other hand if your ex is a pathological liar they could crash and burn.

      Pursuinghappiness went through this might want to PM her or maybe she will comment.

      Comment


      • #4
        Thanks both!

        Good to know, I know what I do open myself up is to them then being able to question me in return. There is no expense to me, I am self represented and assume her lawyer will just use her office for the questioning.

        She has made her case on two things one being after 5 yrs of unsupervised access including overnights that she now has all these claims about my parenting and how the kids feel around me and if the kids acknowledge her and her now husband when I have them, they know they'll be punished like not being allowed to participate in their activity etc. She has failed to share any proof to date, in the 5+ years I have not received one email or phone call from her with a concern on my parenting or any of these false accusations. So by questioning her in advance of trial, you get her on the record about these things and they you ask her these things again at trial and hope she trips up and gives different responses etc. It also turns the heat up if they are just playing games with no intention of this going to trial which one wonders when you make such incriminating claims in multiple court documents that I know have no truth to them.

        Comment


        • #5
          The other posters are right on.

          As you know, the SC/TMC format is very similar to the CC. Its basically a forum to narrow issues and see if you can reach some resolution before trial. The judge will also usually advise on what their decision would probably be if they were your trial judge (which they won't be). To bring this stuff up is nitpicking and probably not very constructive. You might just want to bring up the fact that you are trying to move on with life, be a good parent and doing your best to have good parenting communication with you ex. And that's about it.

          Don't question her. Just shrug it off since she has no proof. My personal experience, my ex has accused me of literally everything...and I do mean everything in various affidavits...ie, drug use (I've never even smoked a cigarette), I sleep too late on the weekends, I didn't clean and cook enough, having a mental illness, being obsessed with my appearance and having a workout addiction, chronic masturbation (my personal favorite), being molested as a child, etc, etc, etc. He also accused me of being a very bad mother...ie, my kids are afraid of me, I have packs of men around them and they're in danger, my kid doesn't want to be with me but is too afraid to tell anyone, etc etc etc. He also tried saying that he was the primary parent because I was never around (ridiculous) and even went to the point of getting two guys that live in our subdivision (whom I didn't know) to give affidavits to say they never saw me with the kids (even though my ex works from 6am-6pm and goes to bed at 8:30 everyday). You get the drift.

          Here's what I did. Per the advice of my lawyer, I kept a daily calendar on what I did with the kids (particuarly my youngest) and attached receipts, tickets, w/e to it. I detailed exactly what I did each day. ie. Put kid on bus, picked her up after school, made dinner, did homework, etc. Any specifics that were relevant, I added in. I kept every relevant parenting email to detail conversations/disagreements between me and my ex and attached them when necessary. Everything else, I simply blanket denied and would not bother addressing his specific accusations...Instead I would show the proof of what kind of parent I was.

          After 6 hours of questioning on all the accusations (extremely expensive), which didn't pan out for my ex....I did very well at questioning, my ex then requested a private custody evaluation (very expensive) and I was pretty much forced to agree. Lets just say he tried the same tactics and he didn't do very well. The only thing that saved him is that my D is a lovely kid and wanted to spend equal time with both parents which she elaborated on at length to the psychiatrist. Otherwise, my ex would have probably got EOW because he made an idiot of himself to the evaluator...even blew up at him at the end of the thing. He ended up conceeding an access arrangement which leaves me with my child most of the time and although we have joint custody, I make any final decisions in the event of a dispute. So all his antics were useless. I'm not recommending you necessarily get an evaluation...they are very costly and very lengthy...but its an option.

          I'd simply ignore her. If she's making the accusations, she has the burden of proof, not you. It helps if you have backup documentation (calendar), not to attack her but to substantiate that you are a good, involved parent. And leave it. These judges have heard all this crap before and they get really annoyed with parents who do it. You have to show that you have done your job as a parent and have tried to communicate and be reasonable. And that's it. Never complicate the waters by trying to disprove a negative (ie, something that didn't happen).

          Hope that helps...best wishes!
          Last edited by Pursuinghappiness; 10-04-2013, 11:51 AM.

          Comment


          • #6
            Thanks for your insight Pursuinghappiness, I am still a little confused about your experience with questioning though, did you initiate it or him?

            You said it was very expensive but you did very well at questioning, were you represented or not, I don't see how a self-represented individual like myself would face any costs, only if I lost at trial and that was included in the costs awarded to the other party?

            Would you not recommend questioning her prior to trial on these accusation and other items and then see if she is inconsistent with her answers when asked the same at trial. Not that but it also may put some heat on her to get negotiating a settlement as she is not going to be prepared to be questioned by me directly in advance of trial.

            Other thing is OCL lawyer is now involved and that lawyer doesn't seem to be looking into those accusations about my parenting and how the kids feel around me etc.

            I can`t question him on the stand but I can be proactive with my ex. Only thing is she can then have her lawyer question me in return.

            Just trying to determine if this is a good strategy. It would be better to know where she is coming from with these accusations now, as the court deals in facts supported by evidence, not accusations.

            Comment


            • #7
              DontGiveUp:

              Something to consider:

              Mustapic v. Capin, 2012 ONSC 3208 (CanLII)
              Date: 2012-06-08
              Docket: FS-04-052373-01
              URL: CanLII - 2012 ONSC 3208 (CanLII)
              Citation: Mustapic v. Capin, 2012 ONSC 3208 (CanLII)

              [19] How this family actually got to the place that I have heard about since May, 2011, only they will know; and they only know through their unique and individual perspectives. As Catherine Gildiner wrote in the preface to her book, After the Falls, (Toronto: Alfred A. Knopf Canada, 2009):
              Memory is a tricky business. No two people remember things the same way. Memory is not a recording device; it is the brain’s way of allowing us to select moments in order to interpret our pasts. All the images on file in our brains pass through elaborate screens of unconscious needs and emerge as memories.

              To that quote I would add that the filtering process we go through helps us “save” ourselves, so that we can present ourselves in the best light possible. It is only through years of often painful therapy that we can understand how much we may have filtered our own experiences to save ourselves. There is nothing insidious or wrong about this process; it is part of the human brain’s brilliance. It is not someone else telling us we are “wrong” in our memory that gives us insight; it is our own reflecting, with professional assistance, that leads us to that level of awareness and understanding about ourselves.

              [20] The mother and father before me have very different memories of what happened in their 11 years of cohabitation and their 11 years post-separation. So too do their children have very different memories. As I just set out, there is nothing surprising or unusual about that fact. What is sad for the Court is the amount of time, money, energy, and emotional angst, that these parties have engaged in to convince themselves, the other party, the children, their friends, the professionals involved, and now the Court, that their truth is the “real truth”; that their version of events is what actually happened.

              [21] Dr. Clive Chamberlain, a renowned psychiatrist who has specialized in children and adolescent issues for over 40 years testified before me on an alienation case several years ago. When he was asked about how the parties got to the place they were at trial, and who was to blame, I always recall his words, “That’s a bit of a mug’s game.” That expression means “a futile or unprofitable endeavour.” In other words, “Judge, don’t waste your time, you’ll never figure it out to anyone’s complete satisfaction. Let’s deal with what we have in front of us now.”

              [22] It is for the above reasons and several others that this decision will not be deciding whose version of the “truth” is more accurate. In my view, such an attempt to microscopically look at 22 years of family dynamics would be a waste of time, would make no one happy with the result, but most importantly, would not in any way help the M. children, most of all L., who is the subject of the trial before me.

              [23] I do not intend to summarize all of the evidence I heard and read at this trial in search for the elusive “truth” of this family’s history. I have indeed considered all of the evidence which the parties ably marshalled at the trial, in arriving at this decision.

              [24] This decision will not vindicate one parent and disparage the other. This family did not get to where they are by the simplistic analysis presented by the father, which is, but for the mother’s bad behaviour the father would have a perfectly wonderful relationship with his three children. No, the issues in this family are far more complex and subtle than that. The “truth” will not set this family free, because there is no one single truth. Only the parties, working together in a therapeutic setting, can set this family free.
              I would recommend you seriously consider why you are seeking questioning... to seek "the truth"?

              Good Luck!
              Tayken

              Comment


              • #8
                When would you recommend questioning in advance of trial Tayken and for what purposes only?

                Comment


                • #9
                  Thanks for your insight Pursuinghappiness, I am still a little confused about your experience with questioning though, did you initiate it or him?
                  He initiated all litigation. His goal was to intimidate, humiliate and bankrupt me. I requested a mediated divorce.

                  You said it was very expensive but you did very well at questioning, were you represented or not, I don't see how a self-represented individual like myself would face any costs, only if I lost at trial and that was included in the costs awarded to the other party?
                  Questioning/deposition is different from trial and a very expensive process. It has its benefits because it gets people under oath early and can be used later at trial. I do have a lawyer. You can certainly recoup costs at trial but you generally can't recoup costs for questioning. Its not used often anymore but it can be part of the discovery process.

                  Would you not recommend questioning her prior to trial on these accusation and other items and then see if she is inconsistent with her answers when asked the same at trial.
                  Questioning her at the SC isn't going to accomplish much since they're like CC's. If you're asking if you should have desposition (under oath) over these accusations, my opinion would be no. Its very very normal to have this kind of stuff thrown around...judges see it all the time. She has the burden of proof. You just have to blanket deny the allegations. Frankly, 99% of what my ex said never got brought up during any legal proceeding and any judge that heard it, they simply disregarded it and got back to trying to solve our actual issues. This stuff is really largely irrelevant. I wouldn't bother even bringing it up. Let her vent and look idiotic during the proceeding. It will go nowhere unless she has a lot of proof and can show why its relevant to custody/access matters.

                  Other thing is OCL lawyer is now involved and that lawyer doesn't seem to be looking into those accusations about my parenting and how the kids feel around me etc.
                  I haven't had an OCL investigation, so other posters can help you with this. My private custody evaluation strategy was simple. I knew my ex would make accusations but I simply told the truth from my perspective. I didn't bash my ex...I talked about what I did as a parent, things I could improve upon and what outcome I wanted to see in the divorce. I don't know how OCL works but other posters do. I would imagine that its a similar format. I'm not sure how questioning your ex at an SC or TMC would help with an OCL investigation.

                  I can`t question him on the stand but I can be proactive with my ex. Only thing is she can then have her lawyer question me in return.
                  Actually you can question an OCL. PM WorkingDad..he's the forum poster guy for having successfully overturned an OCL ruling.

                  Just trying to determine if this is a good strategy. It would be better to know where she is coming from with these accusations now, as the court deals in facts supported by evidence, not accusations.
                  Exactly, she has the burden of proof and if she doesn't have any...its not going to fly in court. The OCL investigation strategy is a different matter however, and other posters who've been through it can chime in on that.

                  Comment


                  • #10
                    Originally posted by DontGiveUp View Post
                    When would you recommend questioning in advance of trial Tayken and for what purposes only?
                    1. For clarification on a Form 13.1 / 13. If you have evidence that the numbers provided by the person are countered against cogent and relevant DOCUMENTED evidence from an independent third party.

                    2. When questioning will narrow the matters at will have to be heard at trial. When a number of pre-trial discoveries need to be made. For example if you need telephone bills, financial records disclosures, medical records disclosures, etc...

                    3. When you have a relevant matter that needs further discovery. The keyword here is **RELEVANT**.

                    Good Luck!
                    Tayken

                    Comment


                    • #11
                      1. For clarification on a Form 13.1 / 13. If you have evidence that the numbers provided by the person are countered against cogent and relevant DOCUMENTED evidence from an independent third party.
                      My lawyer used the cross-questioning time for my file on exactly this. Basically trying to show the disconnects with financial disclosure.

                      My questioning was asking me mostly personal things...ie, how much did I cook during the marriage...and a lot of other irrelevant, nonsensical things...some were designed simply to make me lose my temper...which didn't happen.

                      Again, just my opinion but I don't think questioning your ex on baseless, non-proveable accusations is a tactic you need to bother with.

                      If I were you, I would so some searches and ask the forum members more about your OCL strategy, however.

                      Comment


                      • #12
                        Thanks. The OCL questioning that WorkingDad was successful at was in regards to an OCL assessment report.

                        In my case the OCL decided the children were old enough or the issues of concern enough to appoing the children a lawyer instead of just having an assessment / report done.

                        In that case, the OCL lawyer represents the children to the judge on what they feel the children want and what they feel is in the best interests of the children. You cannot cross-examine the OCL Lawyer.

                        The OCL Lawyer however feels that in this matter they may be a need for a social worker to participate and do an assessment as well and should that likely happen, then either party can cross-examine on their assessment / report at trial.

                        It sounds like what I have heard so far though, is even if the OCL Lawyer is showing what seems to be an immediate bias or opinion in your position vs your ex's even though the OCL lawyer hasn't even really done much other than look at the file so far, that you can't file a complaint or do anything to get that specific OCL lawyer off of the case.

                        Comment


                        • #13
                          Thanks. The OCL questioning that WorkingDad was successful at was in regards to an OCL assessment report.

                          In my case the OCL decided the children were old enough or the issues of concern enough to appoing the children a lawyer instead of just having an assessment / report done.

                          In that case, the OCL lawyer represents the children to the judge on what they feel the children want and what they feel is in the best interests of the children. You cannot cross-examine the OCL Lawyer.

                          The OCL Lawyer however feels that in this matter they may be a need for a social worker to participate and do an assessment as well and should that likely happen, then either party can cross-examine on their assessment / report at trial.

                          It sounds like what I have heard so far though, is even if the OCL Lawyer is showing what seems to be an immediate bias or opinion in your position vs your ex's even though the OCL lawyer hasn't even really done much other than look at the file so far, that you can't file a complaint or do anything to get that specific OCL lawyer off of the case.
                          Ah, I see...gotcha. Like I said, I went the private route...so I'm not sure how his works. If you haven't already posted another thread on this...you might want to. That way posters who've had OCL involvement, especially of this nature, can give you some feedback.

                          Comment

                          Our Divorce Forums
                          Forums dedicated to helping people all across Canada get through the separation and divorce process, with discussions about legal issues, parenting issues, financial issues and more.
                          Working...
                          X