Interim Motion and False abuse allegations

[rvalentines]

Dear all,

Some background:

-Married for 10 years with 2 young kids.
-Separated in August 2019 and wrote a separation agreement saying we will have joint custody of the kids. We both signed it but did not have a witness.
-in October 2019, she reports me to police for historical abuse allegations against her. As a result, she has exclusive possession of the house and "de facto custody" of the kids.
-Since then, she has only allowed me see my kids once a week, supervised, even though I was very involved all their lives.
-I have criminal charges pending as a result of my ex-wife's allegations and am planning on going to trial to defend myself. As a result, I have NO CONTACT ORDER (so can't talk/email her).

Question:
-My lawyer is suggesting that we need to slowly ask for gradual increases. However, I don't understand why it can't move to equal time sharing right away? What is my success probability if I were to bring a motion asking for 50/50 right away? My case conference is next week and I'm planning on bringing a motion right away.


My understanding is as follows:
1. Shaw vs. Shaw where the judge ultimately provided equal time-sharing between the parents despite the criminal charges.

2. Status Quo: In Kimpton v. Kimpton, supra, it was noted at para.1 that “By status quo is meant the primary or legal status quo, not a short-lived status quo created to gain tactical advantage.” This is echoed in Horton v. Marsh, supra, at para. 6: “The status quo which ordinarily is to be maintained is the status quo which existed without reference to the unilateral conduct of one parent, unless the best interests of the child dictates otherwise.”

1. in Howard v. Howard, that the only status quo that counts is the one that existed prior to the separation.[24]

Thank you so much! Any help or insight would be greatly appreciated!

[Tayken]

https://www.ottawadivorce.com/forum/...ad.php?t=13457

https://www.ottawadivorce.com/forum/...ad.php?t=20398

https://www.ottawadivorce.com/forum/...ad.php?t=16809

https://www.ottawadivorce.com/forum/...ad.php?t=15878

I have posted lots about false allegations of domestic violence in Family Law.

[Tayken]

If the evidence presented is all hearsay and has no legs then you should seek full joint custody and equal access. But, it is based on evidence. If you are facing all hearsay and you have a good lawyer it is not a long shot anymore. But, you will need a good lawyer who knows what they are doing.

Also, research the opposing counsel. Search them on CanLII and see what their typical mode of operations is. See how they present their cases.

Also research "false status quo". There is a common behaviour pattern that comes with false allegations of domestic violence that is well known to judges. If you can align the evidence to this pattern it will make things easier.

Again, everything rests on the evidence you present. You are best to move quickly and swiftly. It takes a good lawyer to present the case.

[Kinso]

What’s omitted from your narrative is your availability to care for your children. Do you work full time, does your ex, are you down the street from one another or an hour away. The court will be interested in these factors.

[rvalentines]

Thank you for your reply.

Tayken, I'm very familiar with your posts. They have been very useful. I've researched your thread history and love it.

However, one thing I wasn't able to find in your post is what if a husband is convicted of an assault on a ex-wife? What happens with joint custody? Do you have any cases that shows these scenarios?

I ask because it's still he said she said in criminal court and want to know all options in family court.

I live within ten minutes drive of my ex and have my mom able to help with drop off and what not. My ex also works full time and travels a week per month. She lets the kids stay with grandparents.

[iona6656]

where's it's "proven"- in so far as one spouse is convicted, or takes a plea deal, etc etc....I think it's an uphill battle to secure joint. This doesn't mean that you can't have shared custody. It means- your wife would have reason to argue that she cannot make joint decisions with you about your children's well being.

as to the he-said-she-said in criminal court, it comes down to what evidence the crown has. do you have a history of assault? do you guys have previous run-ins with the police for domestic violence? Has the crown offered you a plea deal?

my ex took a plea deal for his death threats against me and our daughter, and assault charges against me. he went through the early intervention program- and as a result received an absolute discharge. However, even though he didn't get a criminal record- an absolute discharge is still a finding of guilt. That coupled with pretty damning OCL report made it very difficult for my ex to seek joint custody. That being said- it didn't preclude him from seeking shared physical custody.

[rvalentines]

Thanks for responding!
No previous run ins or criminal record. No deal from crown and not planning on taking it even if offered.

If I may ask, did he get his joint physical custody? How did that go? Did you fight it or let him have it?

[iona6656]

Thanks for responding!
No previous run ins or criminal record. No deal from crown and not planning on taking it even if offered.

If I may ask, did he get his joint physical custody? How did that go? Did you fight it or let him have it?

No he didn't. I have sole custody and primary residence. We have a graduated parenting plan where he increases his time with our D3, provided there are no other incidents.

We were in litigation- heading towards a trial (but not really, because he knew he wasn't getting 50/50). But settled at a settlement conference with the help of a parenting coach, who helped us work out a parenting plan.

My situation is different though because my ex WAS abusive, and did actually threaten to kill my daughter and me. so....

Is there any chance of credibility to your ex's allegation?

[rvalentines]

Does the graduated parenting plan get him to 50% eventually? Assuming no more incidents?

Its all false allegations but she has hit herself and claiming I did it. Hence why I'm scared as she's gone crazy and don't know how the judge will take it.

Hence why I'm trying to understand all options...is it even possible for me to get equal time sharing BEFORE my criminal trial starts?

[iona6656]

Does the graduated parenting plan get him to 50% eventually? Assuming no more incidents?

It does not. It gets him to EOW and Wednesday nights. However, we have agreed that in 2022- when she's 6, we will go back to our PC and see if/how the schedule needs to be adjusted.

Here's the rub. He was abusive. He's a misogynistic asshole. That doesn't mean he isn't a good dad now necessarily. But the way it will likely come out is when our daughter is 11/12...so how does that play out in the future in terms of parenting? I don't know.

Its all false allegations but she has hit herself and claiming I did it. Hence why I'm scared as she's gone crazy and don't know how the judge will take it.

Hence why I'm trying to understand all options...is it even possible for me to get equal time sharing BEFORE my criminal trial starts?

So there are pictures? Evidence of the "assault"? How do you know she hit herself? Has anyone else ever witnessed the fights between you two? or her hitting herself? Like Tayken said- the family courts see these allegations all. the. time.

Contemporaneous reporting is key. If she was abused- the courts will want to know if she reached out to anyone before the custody matter started.

Is she claiming you are dangerous to kids?

[rvalentines]

Hey! Thanks again for your response.

Yes - she's also alleging I've been abusive to the kids - although she left me with kids for days upon days by myself when she was working late/travelling for vacation.

Yes there are images of minor red marks on her arm she's claiming was me.

I'm not sure if she's reported it to anyone but no medical records...

[backinthesaddle]

Criminal court and specifically domestic abuse is part of my job so I can give you some insight on what could happen. Family Court...I don't know much and only what many confide in me and my situation didn't get to court but family court is unfair in every way. If you have no criminal record, no previous history of domestic violence and nothing documented (until you separated) then you are almost guaranteed to receive an 810 peace bond/conditional sentence. If the alleged incident did not occur in front of children and there is no history with CAS or police incidents involving your ability to parent (drug, alcohol, criminal) it should not affect your ability to obtain 50/50 custody of your children. if there are no witnesses and no injuries (a red mark on arm a week later when reporting isn't the best evidence) then your case may not even get to court. Ontario has a strict domestic violence policy of must arrest if RPG. Your case has a DV crown attorney and it is up to them if your case will go to trial or not. Ask your lawyer if your case can be resolved via peace bond. It may not get resolved until the morning of your court date in front of the judge.

[rvalentines]

Thank you for the details! So far we're into the JPT (Judicial Pre-Trial) stage and no peace bond offering yet. My lawyer is thinking this will go to Trial because she's raised some serious (false) allegations such as rape (towards her - not kids).

[Tayken]

However, one thing I wasn't able to find in your post is what if a husband is convicted of an assault on a ex-wife? What happens with joint custody? Do you have any cases that shows these scenarios?

If you have a prior conviction from a previous relationship it will weigh heavy on your current matter. Form 35.1 will require the exposure of this past conduct.

[Tayken]

Yes there are images of minor red marks on her arm she's claiming was me.

A good lawyer can deal with this kind of evidence. Especially with today and it probably being digitally captured. Hard for people to mess with time stamps encoded into photos. A simple print out won't be sufficient. Your lawyer if they know what they are doing will require disclosure of the digital copies and can have a forensic expert determine if they were tampered with etc.

It is going to get really expensive. I hope you have the capital to get through this.