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  • Juma v. Juma

    Just came across this one today, thought this might be of interest to parents here wrestling with similar issues:

    CanLII - 2012 ONSC 4135 (CanLII)

  • #2
    Originally posted by Exquizique View Post
    Just came across this one today, thought this might be of interest to parents here wrestling with similar issues:

    CanLII - 2012 ONSC 4135 (CanLII)
    Here's my favourite part:

    [73] Although the parties had agreed that the child would spend most of the summer school vacation in or about Kingston, Ontario, I find that the father did not consent to the mother removing the child permanently from Florida, in the secretive manner that she did, at the time that she did, and without prior notice to the father, nor did the father consent to the mother withholding the child and the child’s whereabouts from the father for a number of days. If the mother was concerned, as she says, that the father was not going to allow her to have time with the child until things were worked out between them, she should have followed the proper process in bringing the matter before the Court to ensure she would continue to have time with the child, rather than engaging in self-help methods.

    So many problems in Family Law are caused by this "engaging in self-help methods" and I love the judge's use of that terminology.

    Comment


    • #3
      I did enjoy reading the judge’s tempered and concise analysis on this case.

      You know what gets me in this and countless similar cases where the mother “goes rogue” and takes matters into her own hands, completely cuts off communication between herself, the child and the father, and does everything possible to keep the child away from the father? So many times now the mother’s reasons for their unilateral actions are: “I’m afraid of the father”, “The father is an abusive person to me/the child”, “I don’t believe the father can take care of the child appropriately”. Same thing with this case ... again.

      I find myself wondering why this is so. Not trying to pull out the gender card here (and am aware that fathers do the same to mothers too, more often than we think), but it just so happens that 90% of the case like this that i’ve actually read about it’s the same “reasons” given over and over again and they involve a mother against a father. It makes me wonder whether it’s indicative of some deeper problem in society, if situations like that are indeed so commonplace, and what can we do about it; or whether lawyers nowadays just coach their clients to make statements like that whenever they take on cases like that.

      In a similar case involving a friend, when the separation occurred the mother unilaterally moved the child away, filed court papers to request sole custody and sought to deny the father of all access, the reasons stated on the court documents were (surprise, surprise): “Father is abusive and has abused (never mind that she and other family members had physically assaulted the father with hockey sticks some months prior) me, I’m afraid of the father and don’t want any communication with him, and father is unable to properly take care of the child”.

      Just musing, that’s all. Which is neither here nor there and I’m digressing ...

      Comment


      • #4
        Originally posted by Rioe View Post
        Here's my favourite part:

        [73] Although the parties had agreed that the child would spend most of the summer school vacation in or about Kingston, Ontario, I find that the father did not consent to the mother removing the child permanently from Florida, in the secretive manner that she did, at the time that she did, and without prior notice to the father, nor did the father consent to the mother withholding the child and the child’s whereabouts from the father for a number of days. If the mother was concerned, as she says, that the father was not going to allow her to have time with the child until things were worked out between them, she should have followed the proper process in bringing the matter before the Court to ensure she would continue to have time with the child, rather than engaging in self-help methods.

        So many problems in Family Law are caused by this "engaging in self-help methods" and I love the judge's use of that terminology.
        Thanks to the OP for posting this one! This is one I don't have in my database of case law.

        More has to be done about the "self-help" when a parent in contravention of section 283.(1) removes children without consent or a court order.

        The whole "Habitual Residence of the Child" section is really well done. If you are before the court regarding habitual residence this is a great template to follow.

        Thanks!
        Last edited by Tayken; 07-19-2012, 09:52 AM.

        Comment


        • #5
          Originally posted by Exquizique View Post
          I did enjoy reading the judge’s tempered and concise analysis on this case.

          You know what gets me in this and countless similar cases where the mother “goes rogue” and takes matters into her own hands, completely cuts off communication between herself, the child and the father, and does everything possible to keep the child away from the father? So many times now the mother’s reasons for their unilateral actions are: “I’m afraid of the father”, “The father is an abusive person to me/the child”, “I don’t believe the father can take care of the child appropriately”. Same thing with this case ... again.

          I find myself wondering why this is so. Not trying to pull out the gender card here (and am aware that fathers do the same to mothers too, more often than we think), but it just so happens that 90% of the case like this that i’ve actually read about it’s the same “reasons” given over and over again and they involve a mother against a father. It makes me wonder whether it’s indicative of some deeper problem in society, if situations like that are indeed so commonplace, and what can we do about it; or whether lawyers nowadays just coach their clients to make statements like that whenever they take on cases like that.

          In a similar case involving a friend, when the separation occurred the mother unilaterally moved the child away, filed court papers to request sole custody and sought to deny the father of all access, the reasons stated on the court documents were (surprise, surprise): “Father is abusive and has abused (never mind that she and other family members had physically assaulted the father with hockey sticks some months prior) me, I’m afraid of the father and don’t want any communication with him, and father is unable to properly take care of the child”.

          Just musing, that’s all. Which is neither here nor there and I’m digressing ...
          It is not just "musing" you have identified a common "truism" on how many highly conflicted litigants conduct themselves before the court. It is not specific to a gender as there are many of the same baseless allegations continually made.

          The whole "psychologically abusive" and/or "controlling" argument is incredibly weak before the court. The challenge is that there are people who are truly psychologically abused and this degrades the argument across the board when they miss-use these false allegations.

          The requirement for evidence on "abuse" is becoming MUCH tighter before the court these days.

          False status quoes are being overturned (thanks WorkingDad for all your efforts on that) and the courts are paying very close attention to these "controlling" allegations. I have tracked through CanLII the instances of the word "control" or "controlling" appearing in posted decisions... Suffice to say the use of the word and results are vastly different over the past 3 years... And in the past 6 months INCREDIBLY different.

          Family Law goes through cycles... Family Law Lawyers think hey this is an easy hard to prove allegation and if we can upset the other side enough they can demonstrate they are "controlling". They may win once on this "truism" or "tactic" but, as the case matures things change. Then the websites on "domestic violence" start to evolve and include these "truisms". People read them and try to a align their cases to what they read on the internet.

          What happens when the pattern evolves is that the defence to these types of "truisms" evolves as well. The requirement for evidence becomes higher, case law develops that can identify these "truisms" (some even call them out now specifically) and the easy to identify pattern doesn't even have to be identified strongly. The judges have all heard the "story" (truisms) before.

          There are definite patterns of behaviour in affidavit materials. One thing I recommend is if you know the lawyer on the other side, look them up in CanLII, find if there are any posted decisions in matters, read them carefully and in cases where allegations seem similar... GO AND PULL THE COURT RECORD!

          You will notice the same paragraphs often in the other cases affidavits. In fact, some times they are the same PARAGRAPH NUMBER. I have seen a crafty litigant do just this and attach the affidavit from another file identifying the clear pattern to the allegations and questioning how these two cases can be so similar that they have the EXACT SAME PARAGRAPHS and PARAGRAPH NUMBERS.

          Suffice to say, the judge did not have kind words for the lawyer indirectly announcing to the court room: "Family Law is not to be conducted as Word document template that you fill out."

          There are "template" lawyers. Mostly the negative advocates. They use what has been used against them and what has been successful for them like applying a pattern to make clothing to assemble their arguments.

          Good Luck!
          Tayken

          Comment


          • #6
            Originally posted by exquizique View Post
            just came across this one today, thought this might be of interest to parents here wrestling with similar issues:

            canlii - 2012 onsc 4135 (canlii)
            thank you!

            Comment

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