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  • Your thoughts on the MeToo Movement

    Just wondering what all you posters think about the MeToo movement and if you think it will ever have any impact on Family Law? Currently, I know past behaviour as a parent is considered irrelevant for the most part but I wondered as I sat in the court house the other day and listened to some stories whether it will have an impact in the future? It's been quite a movement that has taken down top ranking officials ...perhaps it may parenting??

  • #2
    Topic of abuse allegations has been covered extensively on this site.

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

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    • #3
      Your thoughts on the MeToo Movement

      I really hope the time is coming where abuse and violence as they relate to the “best interests of the child” actually gets put on the same level as the maximum contact principle. The family courts defacto move towards the maximum contact, in my opinion, does grave harm to children, not to mention victims, of domestic violence.

      That being said I think that the issue of using the term “abuse” needs to be dealt with as soon as possible in the process.

      I don’t know the statistics- but I feel anecdotally that the term “domestic violence” and “abuse” gets played far too often falsely in family matter cases.

      What I would like to see is where one party accuses the other of perpetrating DV, the courts deal with it on a motion to determine the veracity of the claim.

      Waaaaaay too often, motion judges and case conference judges pass the buck and won’t deal with it because the issue must be tried. The outcome of this is often unfair to both types of cases. Where the allegation is false, you have parents- let’s be real- fathers- who are accused and have onerous restrictions placed on their parenting time- little or no access, supervised access where it’s not warranted, etc...on the other spectrum you have real cases where parents are forced to send their children to the other parent where they KNOW they are capable of sometimes unspeakable violence.

      From my experience- just three weeks after my daughter’s dad threatened to kill her horrifically and graphically- and me after...- I had to send her to him. Sure his visits were supervised. But really- what’s a 60something old private supervisor going to do if my ex decided to do something insane?

      What I think should have happened is that he should’ve had to do a mental health assessment and safety risk assessment. Or in the alternative- we should’ve had to be in front of a judge on a motion to prove the allegations either way. If I was making it up- I should’ve been called out right away.

      The other side to your question I think encompasses a very dark side. Domestic violence and specifically intimate partner violence very often goes beyond physical and emotional abuse. Very often there is sexual violence involved. BUT I feel like even if there is a charge of sexual assault in a family matter - unless it’s perpetrated against a minor and not the partner- the family courts basically take the position of “well maybe he did rape/sexually assault you, but we don’t think there’s a chance he would do the same to the kid(s)- so they should get to see him” .....and I challenge anyone to say that someone who commits the crime of sexual assault should be involved as a parent.


      I think the solution to both of these issues is to have more integrated family and criminal courts. There are a couple around-but there needs to be more. There needs to be an assessment of fitness to parent where there are serious criminal charges involved. And where there are false allegations there needs to be a move to address those early in the process so the parent’s relationship with the child is not damaged.




      Sent from my iPhone using Tapatalk

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      • #4
        Originally posted by Tayken View Post
        Topic of abuse allegations has been covered extensively on this site.



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


        I don’t know that citing and discussing one case that discusses how tricky “abuse” can be is necessarily extensive discussion.


        Sent from my iPhone using Tapatalk

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        • #5
          Originally posted by iona6656 View Post
          I don’t know that citing and discussing one case that discusses how tricky “abuse” can be is necessarily extensive discussion.


          Sent from my iPhone using Tapatalk
          You should learn how CanLII works. It is cited in other cases. Those cases are sub cited. Suffice to say this case law appears in a number of Justice Pazaratz cases that are cited hundreds of times. Feel free to read my other threads with other examples. This is all but one.

          All of the cases sited state the same thing you already stated:

          the term “domestic violence” and “abuse” gets played far too often falsely in family matter cases.
          Free free to click on my handle "Tayken" and search for all main thread posts and flip through the various cases I have posted.
          Last edited by Tayken; 01-06-2019, 12:04 PM.

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          • #6
            It is hard to link "me too" to "family law" because they are not the same. This debate will only draw the trolls who are aligned to one side of the argument.

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            • #7
              Originally posted by iona6656 View Post
              What I would like to see is where one party accuses the other of perpetrating DV, the courts deal with it on a motion to determine the veracity of the claim.
              Would it be a criminal or civil standard?

              Would there be any consequences subsequent to a finding that the accusation was false?

              Comment


              • #8
                Originally posted by Tayken View Post
                You should learn how CanLII works.
                You click on the hyperlink that says "Cited by 4 documents", right? Thanks for the lesson.
                It is cited in other cases.
                4. All at Superior Court. Not challenged at the appellate level. Treatment in all FOUR cases is neutral. None of those cases say "Hey- look at this amazing case of Tayebi v. Oukachbi".

                Those cases are sub cited. Suffice to say this case law appears in a number of Justice Pazaratz cases that are cited hundreds of times.
                and? Sub-citing is not relied on in law. Precedent is. Positive treatment is.

                Look hard enough and you can find a family law case that bolsters your position. In almost any case. It's not hard. Which is why in any area of law- you look for and rely on appellate level cases that confirm ratios. Not mere mentions.

                Further the Pazaratz case of Rifai v. Green, does not at all touch Tayebi v. Oukachbi's discussion of the use of the term abuse - in citing the case, Justice Pazaratz is discussing the concern about minimizing the risk of needless disruption at the temporary order stage.
                Last edited by iona6656; 01-07-2019, 11:41 AM.

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                • #9
                  Originally posted by Janus View Post
                  Would it be a criminal or civil standard?

                  Would there be any consequences subsequent to a finding that the accusation was false?
                  I think that the party seeking the restrictions should have the onus to show that there is a chance of harm on a balance of probabilities. Also- where the issue of safety is canvassed- then the judge would be in the position to ask the necessary questions to determine whether a higher level of precaution is necessary during parenting time.

                  This is all assuming that the criminal matter has not be completed. To my knowledge- if a charge is withdrawn it's withdrawn very early in the process so that this would be helpful in determining whether there are precautionary measures even needed.

                  I absolutely think there should be consequences to finding that the accusation is false- but not necessarily monetary, or contempt findings etc. I've read a number of cases where, after the trial, the judge finds one parent's accusations are without merit and sometimes frivolous and vexatious - and it's clear that it affected how they determined custody and access time. I think that's a pretty damning consequence- knowing that if you throw out a false accusation- you're going to get called out on it early and it's going to haunt the rest of your litigation.

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                  • #10
                    Originally posted by iona6656 View Post
                    and? Sub-citing is not relied on in law. Precedent is. Positive treatment is.
                    What do you mean "is not relied on in law"? You are confused as to how case law is used clearly.

                    The case has a total of 14+ sub-citings when you go two layers down. I didn't bother to go deeper but, it spiders out further. The impact has been large. Lots of judges have read it. It has influenced them.

                    Originally posted by iona6656 View Post
                    Look hard enough and you can find a family law case that bolsters your position.
                    "your position"? The only strong position I have is on relevance and evidence.

                    Originally posted by iona6656 View Post
                    In almost any case. It's not hard. Which is why in any area of law- you look for and rely on appellate level cases that confirm ratios. Not mere mentions.
                    Actually, in "all cases" you rely on evidence. Caselaw is not argued.

                    Originally posted by iona6656 View Post
                    Further the Pazaratz case of Rifai v. Green, does not at all touch Tayebi v. Oukachbi's discussion of the use of the term abuse - in citing the case, Justice Pazaratz is discussing the concern about minimizing the risk of needless disruption at the temporary order stage.
                    Needless disruption being a number of things... an example being false allegations of domestic violence. Which as you pointed out is all too common in family law matters.

                    Comment


                    • #11
                      Originally posted by iona6656 View Post
                      I think that the party seeking the restrictions should have the onus to show that there is a chance of harm on a balance of probabilities.
                      The court requires evidence and "chance is not evidence". Chance is gambling and courts don't gamble.

                      Just because someone said something happened doesn't mean it will happen even on the balance of probabilities. Hearsay is very hard to understand and even lawyers struggle with. Courts don't operate on emotion and chance. They rely on evidence.

                      Originally posted by iona6656 View Post
                      Also- where the issue of safety is canvassed- then the judge would be in the position to ask the necessary questions to determine whether a higher level of precaution is necessary during parenting time.
                      Do you mean the evidence in support of safety concern and access is put before the court? The evidence is what is required in family law. Not hearsay based on emotions.

                      Originally posted by iona6656 View Post
                      This is all assuming that the criminal matter has not be completed. To my knowledge- if a charge is withdrawn it's withdrawn very early in the process so that this would be helpful in determining whether there are precautionary measures even needed.
                      There is indeed a need for a unified family court when it comes to "abuse". The mixing of civil and criminal courts in a family law matter introduces a lot of complexity.

                      Originally posted by iona6656 View Post
                      I absolutely think there should be consequences to finding that the accusation is false- but not necessarily monetary, or contempt findings etc.
                      They usually don't deal with them because the result is a determination of sole custody and majority access... Also, a strong warning to stop as it could result in that kind of order.

                      I don't disagree that penalties are not useful. Appropriate changes in custody and access are more than enough to deal with the issue.

                      Originally posted by iona6656 View Post
                      I've read a number of cases where, after the trial, the judge finds one parent's accusations are without merit and sometimes frivolous and vexatious - and it's clear that it affected how they determined custody and access time. I think that's a pretty damning consequence- knowing that if you throw out a false accusation- you're going to get called out on it early and it's going to haunt the rest of your litigation.
                      With the possibility of it impacting custody and access.

                      For example:https://www.canlii.org/en/on/onsc/do...14onsc915.html

                      It is in rare cases where things end up in this sad situation. Generally, there is a related mental health issue that would be better addressed by the health care system than the family courts.

                      Comment


                      • #12
                        Originally posted by iona6656 View Post
                        I think that the party seeking the restrictions should have the onus to show that there is a chance of harm on a balance of probabilities.

                        That is a fairly low standard, even with the onus on the accuser. The consequence for a criminal conviction is jail. The consequence for a family law conviction is losing your kids. I'm not convinced that the former is so much worse than the latter, and notice the criminal conviction has a standard that is substantially higher than "balance of probabilities"


                        I absolutely think there should be consequences to finding that the accusation is false-
                        It seems like it would be important to have that measure if the standard is balance of probabilities.


                        but not necessarily monetary, or contempt findings etc.
                        Oh, you mean no consequences at all. (sigh)


                        I think that's a pretty damning consequence- knowing that if you throw out a false accusation- you're going to get called out on it early and it's going to haunt the rest of your litigation.
                        This reminds me of interns who, instead of getting paid, are told that they are gaining valuable experience that will totally help them down the road. There is a reason that unpaid internships are on their way to the dustbin of history.


                        If the only consequences are hypothetical credibility issues, then there is almost no barrier to making the false accusation. At the very least it should be a mandated full costs recovery for the victim of the motion.

                        Comment


                        • #13
                          Originally posted by Tayken View Post
                          What do you mean "is not relied on in law"? You are confused as to how case law is used clearly.

                          The case has a total of 14+ sub-citings when you go two layers down. I didn't bother to go deeper but, it spiders out further. The impact has been large. Lots of judges have read it. It has influenced them.
                          I'm not confused. The sub-citings have nothing to do with the ratio you are discussing in your original thread on the use of the term 'abuse'. Just because a case is confirmed or mentioned in another case, does not mean that all the opinions expressed by the Judge are somehow confirmed.

                          The fact is- while that case you cited remains "good" law (because it hasn't been distinguished) - it's untested- it's not positively referenced in any other case on the issues you were discussing in your thread.

                          "your position"? The only strong position I have is on relevance and evidence.
                          'your' being a generalized term. There are SO many decisions in family law- and it's one of the reasons I think relying on case law in family law is tricky. It's so fact specific. You see the same SCC or ONCA cases relied on because only at the appellate level do "tests" really develop- after they've been challenged and either confirmed or distinguished.

                          Actually, in "all cases" you rely on evidence. Caselaw is not argued.
                          It most certainly is. It's where you get common law principles.
                          Last edited by iona6656; 01-08-2019, 02:50 PM.

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                          • #14
                            Originally posted by Janus View Post
                            That is a fairly low standard, even with the onus on the accuser. The consequence for a criminal conviction is jail. The consequence for a family law conviction is losing your kids. I'm not convinced that the former is so much worse than the latter, and notice the criminal conviction has a standard that is substantially higher than "balance of probabilities"
                            I think it should only be on an interim basis.


                            Oh, you mean no consequences at all. (sigh)
                            I mean- what consequences could attach realistically? I think there is a genuine concern that you don't want to discourage someone from bringing a legitimate claim- even if they aren't successful. I work in municipal law- there are a ridiculous amount of vexatious litigants- but the reason you virtually never see costs awarded- even in the dumbest cases/claims is because you don't wnat to discourage participation in the process.



                            If the only consequences are hypothetical credibility issues, then there is almost no barrier to making the false accusation. At the very least it should be a mandated full costs recovery for the victim of the motion.
                            agreed. In general- I would like to see more costs ordered at motions.

                            Comment


                            • #15
                              Originally posted by iona6656 View Post
                              It most certainly is. It's where you get common law principles.
                              It is not argued. It is included in the book of authorities and reviewed by the judge. It does not form any part of the argument. Ugh.

                              Comment

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