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How important is it to keep showing up child's school when gearing up for contempt ?

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  • accused_dad
    replied
    Is it really easier and faster though? My lawyer said the courts taking forever to do things currently. Had an expiated motion that was still waiting to be heard after a few months.... even on a motion to change, few lawyers i consulted said at least 5-6 months before you get to your first conference

    Another challenge is, if child was younger, say 8, yes, no question, motion gets filed immediately and mom can ask for whatever she wants in interim, mediation, etc, etc. When a similar thing occurred when child was around 8, when mom unilaterally reduced my time to less than the status quo that was in place for a year, in the middle of an OCL assessment, we filed an immediate motion, heard within 2 weeks, and my access was reinstated. Because child is 14 turning 15 lawyer said with teenagers it's a whole different beast, usually mom comes in saying it's the child that doesn't want to go, etc, etc making things complicated.

    anywho, Had great time with child and child said they want to start coming over and having overnights. I feel like I should go with this, also check in with my lawyer, and see how it goes? Mom and I seem to be getting along a lot better now. whether it's for real or for show in the face of mediation, only time will tell I guess.

    That being said, the agreement says only like or 4 weeks to resolve the issue in mediation, then either party can go to court. I guess no harm in getting whatever time I can get with child so when I go in with the motion there some access having taken place than all out flat no access no communication from child for months on end, right??

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  • StillPaying
    replied
    Originally posted by accused_dad View Post
    my daughter has reached out to in the middle of our session, to see me on friday, in the midst of this mediation process, i brought that up and now I am set to pick up child from school to spend some time together, and move towards returning to the usual schedule.
    Given your situation, I would have serious concerns about the timing of that call. Hopefully it works out for you.

    Easier and faster options are available, but at the end of the day all that matters is that you're ok with the situation.

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  • accused_dad
    replied
    I hear what you're saying. We did sign the mediation agreement though and we actually had a good session today. Mediator said we should continue to jointly make decisions so that the child can't play us, and that child needs to hear from mom that I'm an amazing dad, etc. Because mom said I'm an amazing dad when asked.

    we agreed to implement a gradual approach to resuming my time, and that only I will show up when it's my time to pickup child. my daughter has reached out to in the middle of our session, to see me on friday, in the midst of this mediation process, i brought that up and now I am set to pick up child from school to spend some time together, and move towards returning to the usual schedule. Won't be sleepovers just yet, because child said no sleep overs "yet" . so more of a gradual approach.

    mediation agreement says we can't take any fresh steps, etc while mediating. so I would have to withdraw my consent and file the contempt motion. mediation is going really well though, we even agreed to meet with coffee with child, and each bring one family member, following my time with child. To arrange, we will coordinate by email with the mediator copied on the emails.

    I will follow up with my lawyer on advice too, but I think I should still try this. Mediator is definitely keeping the pressure on the return to the regular schedule.

    the only thing, is to not get manipulated.

    I feel like if mom pulls out of mediation, then I could show that she is the one who pulled out of trying to work through issues amicably, and there cannot be any argument whatsoever as to whether i exhausted all possible options or not before returning to court.

    What do you guys think?

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  • StillPaying
    replied
    Originally posted by accused_dad View Post
    The applicant shall consult with the respondent regarding any decisions involving the health, religion, education and general welfare of the children. If there is disagreement, the respondent shall have the final say, provided that either party may refer the issue to arbitration
    These are the regular disagreements which not only come up for everyone, but can be something new every week. Courts don't want to deal with these simple issues every time and want you to try mediation first.

    Your access issue is more direct. There is a specific order not being followed. Mediation alternatives are not needed for this when the specific issue has already been ruled on.

    You should listen to Tayken. Make an offer for ex to correct their ways then bring a contempt motion.

    Waiting months on end reducing your access claim and looks more like you're in agreement with the new no access schedule.

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  • rockscan
    replied
    Arbitration is not mediation.

    Arbitration has a judge like person making decisions. Mediation has a referee.

    If you don't have access to arbitration, mediation is not the alternative. Court is.

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  • accused_dad
    replied
    I clicked on it it says:

    Paragraph 3: The respondent shall have the right to make day to day decisions involving the children. The applicant shall consult with the respondent regarding any decisions involving the health, religion, education and general welfare of the children. If there is disagreement, the respondent shall have the final say, provided that either party may refer the issue to arbitration…

    [49] The father alleges that the mother has not permitted the children to communicate with him and has failed to engage the services of a parenting coordinator. Even assuming these allegations to be true, I do not see how they relate to, or would constitute a violation of, paragraph 3 of the March 11, 2015 order. Paragraph 3 permits the father to consult with the mother involving major decisions, the father provides no evidence that this has not occurred.

    [50] In addition, I note that paragraph 3 expressly provides for arbitration in the event of a disagreement. Given the court’s repeated caution that “the civil contempt remedy is one of last resort”, the express availability of an alternative remedy in the form of arbitration to resolve any disagreement with regard to paragraph 3 is an indication that the court should not entertain a motion for contempt until the moving party has tried arbitration. Had the father provided any particulars of a breach of paragraph 3, he would have to proceed with arbitration before bringing a motion for contempt.​

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  • Tayken
    replied
    Originally posted by accused_dad View Post
    Tayken isn't that referring to enforcement motions?
    You should always open and read links I provide for the full details. If you had you would have seen this in the first paragraph of the order:

    This is a motion for contempt brought by the applicant father against the respondent mother for failing to comply with certain paragraphs of a consent court order, dated March 11, 2015.

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  • accused_dad
    replied
    Tayken isn't that referring to enforcement motions?

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  • Tayken
    replied
    Also see: https://www.canlii.org/en/on/onsc/do...6onsc7926.html

    Karar v Abo-El Ella, 2016 ONSC 7926 (CanLII)

    At para 3:

    A finding of contempt is of course the most drastic enforcement mechanism available to the court. It opens the door to a range of sanctions including penal sanctions. Although the moving party does not seek a fine or imprisonment at this stage, nevertheless a finding of contempt is quasi-criminal in nature. It requires proof that the respondent wilfully breached a clear and unequivocal court order and it must be proven on the criminal standard, beyond a reasonable doubt.[1] It is important to underscore that there are various other remedies available to the court to enforce its orders or to sanction breach of such orders even if the failure to abide by an order does not rise to the level of contempt. But it is not necessary to exhaust such steps before moving for contempt.[2]

    [1] See for example Woronowicz v. Conti 2015 ONSC 5247
    [2] See Rule 31 (1)
    Note the highlight above: IT IS NOT NECESSARY TO EXHAUSE SUCH STEPS BEFORE MOVING FOR CONTEMPT.

    That is straight from case law and this is a highly cited case and widely reported. So much so your lawyer, if primarily practicing in Family Law, in Ontario, should have seen this and be able to quote it verbatim as I am NOT a lawyer and nor is StillPaying yet we know. I highly recommend, that if you present this case law to your lawyer and they are not familiar with it... that you retain competent legal counsel that is.

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  • Tayken
    replied
    Originally posted by StillPaying View Post
    That clause is for the regular disagreements which arise; not contempt.
    100% agree.

    Contempt generally means that a person is acting in a way that interferes with or disrespects the court's authority. Rule 31 of the Family Law Rules governs contempt of court in family law proceedings and allows the court to enforce a contempt motion even if another penalty is available. (Ontario)
    See: https://tailorlaw.com/being-in-conte...s%20that%20a,i f%20another%20penalty%20is%20available.

    Contempt, in general, means that a party is behaving in a way that may interfere or obstruct the course of justice, or in a way that undermines or shows disrespect to the court’s authority. It is being disobedient or disrespectful toward a court of law.
    See: https://www.lerners.ca/lernx/contempt-in-family-law/

    To be frank how you describe the situation and the use of contempt leads many on this forum to the concept of EX FACIE CONTEMPT. (Not in the face of the court.)

    As StillPaying says contempt is a whole different aspect of family law and is not a regular disagreement it involves the beyond reasonable doubt conduct of a party disrespecting the court's authority and not abiding by the agreement/order. A lawyer, in good standing, does not wave around the very serious matter of contempt as common vernacular. Contempt is a very serious quasi criminal conduct.

    If contempt is the issue at hand a good lawyer will in my humble opinion:

    1. Serve a comprehensive offer to settle that purges the contempt on the other party;
    2. Provide a very limited time frame and end date as a part of that offer to settle for the other party to purge the contempt;
    3. Provide the motion and materials attached to the offer should the other party not accept the offer to settle and pre-schedule the contempt motion and notify the other party and their lawyer of those dates and serve it on the other party.

    As a matter of technicality... providing offers to settle are a form of mediation. It is negotiated settlement. I suspect your lawyer is a Solicitor first and not a Barrister. There are two different types of lawyers in Canada. Barristers (often called litigators) and Solicitors (who negotiate settlement but, do not go to court generally...).

    I would recommend again you seek the advice of another independent lawyer who is a Barrister to go over the instructions provided by your lawyer to you and the other evidence that has risen to the discussion about contempt.

    Good Luck!
    Tayken

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  • StillPaying
    replied
    That clause is for the regular disagreements which arise; not contempt.

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  • rockscan
    replied
    Most agreements have this clause. If one party isn't coming to the table with a mind to actually mediate then it is useless. The argument to the judge is “party a was unwilling to deviate from their best case scenario therefore we did not believe mediation would work”. When you are dealing with contempt and denial of access, mediation will not work.

    I see what your lawyer is doing but this is urgent and you can't mediate alienation. As long as you can prove that you have done everything you can to work to achieve parenting time, there should be no need to wait.

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  • accused_dad
    replied
    Tayken, I missed an important detail, which is why my lawyer said to try mediation first. There is a dispute mechanism clause in our order, that basically says when there is an impasse on parenting, that we should try to sort out issues between ourselves, if no resolution, then with a mediator, and if no resolution within 3 weeks or the matter is considered urgent, that either party can return the matter to court. Based on my understanding, mother only asked for this because now she wants to do a motion to change, and wants to show judge she tried to first resolve issues with me in mediation.

    My lawyer said, its best to just do it then try to dance around it with any arguments. Especially when it comes to costs and stuff. It shows you've done everything you could to try and sort it out. He told me basically tell them in mediation, am I going to have my access restored or what's going on? TO not waste time talking about random stuff. Either we get my access going or I file the contempt. I have also read elsewhere you should file the contempt, before mediation, to make sure you're not getting manipulated and there is pressure on the other party to mediate to an agreement?

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  • rockscan
    replied
    Originally posted by rockscan View Post
    Tayken, that thread link went to a short thread on threats. Was that the right one?
    It worked outside tapatalk. Carry on.

    Hopefully Mr. Scrivo was able to rebuild his relationship with his son.

    Leave a comment:


  • rockscan
    replied
    Originally posted by rockscan View Post
    Tayken, that thread link went to a short thread on threats. Was that the right one?
    It worked outside tapatalk. Carry on.

    Hopefully Mr. Scrivo was able to rebuild his relationship with his son.

    Leave a comment:

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