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Allegations of Abuse / Unilateral Removal of Child from Habitual Residence - Case Law

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  • Allegations of Abuse / Unilateral Removal of Child from Habitual Residence - Case Law

    Hong v. Rooney, 2012 ONSC 120 (CanLII)
    Date: 2012-01-05
    Docket: FC-10-034352-00
    URL: CanLII - 2012 ONSC 120 (CanLII)
    Citation: Hong v. Rooney, 2012 ONSC 120 (CanLII)

    Interesting quotes:

    [10] Effective immediately, I am granting the father sole custody of Cecilia Han Mae Rooney, and making specified orders for the mother’s access.

    Unsubstantiated Allegations

    [26] The third issue with the mother’s evidence was the extent and severity of unsubstantiated allegations against the father. I find this to be most significant, and have considered her allegations within three categories: the very serious allegations of child sexual abuse and spousal violence, the less serious allegations of abuse that were easily discredited within her own testimony, and a number of nonsensical allegations.

    [27] None of the more serious allegations: child sexual abuse[4] and spousal violence were placed before the court in the mother’s direct evidence, but for a claim that the father had punched a hole in some drywall. In her cross examination she later agreed that the drywall was in the basement to which the father had removed himself after a heated argument in the fall of 2008.

    [28] The father cross examined the mother on the allegations in a calm and respectful manner. When he pressed for particulars on any of the allegations the mother would avoid the question by digressing into other topics. She could provide no particulars of the alleged abuses,[5] at trial nor has she done so at any time during the past two year period of litigation. She did not tell anyone, or record any information related to the allegations prior to drafting her application.

    [29] The allegations of abuse have clearly devastated the father and his family. He worries not only about the lingering effect of such allegations on himself, but on their daughter. From time to time he has been fearful of even hugging his daughter.

    [32] The third category of allegations was those that were clearly nonsensical in the context of the evidence and the stage of development of the child. For example, the first half of one of the more moderate passages within the Application reads:
    The respondent has been and continues to be cruel to my daughter and me. He would tell me that Cecilia is not his child. He told me that he did not want to see my child. He said that he does not care about Cecilia. He continues to say things like that to my daughter and to me. I am concerned on the psychological impact that his negative comments to Cecilia might have. Whenever I left Cecilia in his care, he would not feed Cecilia until I return regardless of how long that might be. He does not know how to care for Cecilia and would tell me that he could not be bothered. He would spank Cecilia for nothing. Cecilia likes to draw. Whenever he sees Cecilia drawing he would spank her.

    (Portion of paragraph 7, page 6 of Application dated November 23, 2009)

    Cecilia was only 20 months old the last time that the father saw her prior to this Application.

    [34] How is the court to understand the extent of the mother’s allegations and the total dearth of supporting evidence? The Application containing the allegations was drafted almost a year after separation and was served on the father during a period in which his counsel was pressing for information on the child’s whereabouts and for access. Only in the context of creating a perfect storm to deflect the father’s involvement with the child do the written allegations make any sense.

    [118] Cecilia was wrongfully removed from her home in circumstances which approach that of an abduction. Her mother changed her familiar name, replaced the people with whom she had lived and changed her community. She was hidden. The effect of her unilateral removal ought not be minimized. From January 10, 2009 to April 10 2010 the father did not see his infant daughter. More importantly, for over a year, Cecilia was taken away from two significant caregivers in her life: her father and her grandmother.

    [119] A period of wrongful removal can never become a period in which a child enjoys a stable home environment. By its very nature, it is a transitory period of hiding. The length of hiding is irrelevant except in so far as it affects the child’s ability to transition into normalized circumstances. There may be circumstances in which a child would be harmed by being returned.

    Good Luck!
    Tayken

  • #2
    Thank you for the link. It was sickening to read. Although I'm heartened that the judge rightfully awarded sole custody to the father, I'm thoroughly disgusted that there are no avenues or means to take the mother to task for all the other CRIMINAL (in my mind anyway) conduct that she has engaged in and continues to engage in: abduction, fraud, false allegations etc. Essentially, all she received was a slap on a wrist saying and faced no significant consequences for everything that she did. Extremely disheartening.

    The scariest part of this all for me: There are more individuals (regardless of gender) like her running around and doing the exact same things!! Why? Because they CAN.

    Also chilling to me is that any sane and/or ethical counsel/lawyer would represent such a case and put forth allegations and statements (even if it's on behalf of a paying client) that has no evidence or substance behind them at all. Really? This is the high standard that our law professionals hold themselves to?
    Last edited by Exquizique; 07-31-2012, 01:31 PM.

    Comment


    • #3
      Originally posted by Exquizique View Post
      Thank you for the link. It was sickening to read. Although I'm heartened that the judge rightfully awarded sole custody to the father, I'm thoroughly disgusted that there are no avenues or means to take the mother to task for all the other CRIMINAL (in my mind anyway) conduct that she has engaged in and continues to engage in: abduction, fraud, false allegations etc. Essentially, all she received was a slap on a wrist saying and faced no significant consequences for everything that she did. Extremely disheartening.
      Well, when one balances the results of the order and the argument presented the award of custody and access as set forth by the judge does make a strong statement. The pursuit of criminal charges in a matter like this would only create more conflict and confusion for the children involved.

      EoW and sole custody is not really a "slap on the wrist" in my opinion.

      Paragraph 138 subsection 1 through 25 is very well thought out in my opinion to deal with the issues. In particular subsections 5, 7, 16, 18, and 22.

      Hopefully the custodial parent has read the "Clipping Wings in Hamilton" article for the costs submission element of the order.

      Originally posted by Exquizique View Post
      The scariest part of this all for me: There are more individuals (regardless of gender) like her running around and doing the exact same things!! Why? Because they CAN.
      Well this order demonstrates they cannot. More will come and the "truisms" are being slowly eroded in this kind of conduct, baseless allegations and use of children as pawns in litigation.

      Originally posted by Exquizique View Post
      Also chilling to me is that any sane and/or ethical counsel/lawyer would represent such a case and put forth allegations and statements (even if it's on behalf of a paying client) that has no evidence or substance behind them at all. Really? This is the high standard that our law professionals hold themselves to?
      Hopefully it gets reflected in the costs award.

      Comment


      • #4
        Thanks for sharing Tayken.

        The freerolling has to stop!


        I have found this:

        "To succeed in a parental abduction prosecution, the Crown must prove each of the following five elements beyond a reasonable doubt:

        (i) the accused is a parent, guardian or person having the lawful care or charge (a "Caregiver") of the child who was taken,

        (ii) the child was less than 14 years old when he/she was taken,

        (iii) the child was taken by the accused Caregiver,

        (iv) the accused Caregiver's taking of the child was (a) in a prosecution under Section 282 of the Criminal Code (Canada), in contravention of the custody provisions of an existing custody order made by a Canadaina court and that, at the time of the taking, the accused knew that such order was in force and that such taking was in violation of such order, or (b) in a prosecution under Section 283 of the Criminal Code (Canada), there may or may not have been a custody order made by a Canadian court, and

        (v) the accused Caregiver took the child with the intent to deprive the other Caregiver of possession of the child."



        Are there any rules of best practice regarding having one's spouse prosecuted while the Family Law matter(s) are still being litigated?

        Note: Tayken appears to be reading minds now and has answered this before I asked.

        Comment


        • #5
          Originally posted by FamilyBlah View Post
          I have found this
          Where did you find the materials you posted? Can you post the reference to the materials you cited?

          Originally posted by FamilyBlah View Post
          Are there any rules of best practice regarding having one's spouse prosecuted while the Family Law matter(s) are still being litigated?
          I don't recommend seeking criminal charges in Family Law matters as it won't improve your case. You are better off reviewing case law like the one provided and including it in the book of authorities in your matter and where appropriate identify similar "truisms" and patterns of behaviour that are commonly repeated by high conflict litigants.

          Shaw v. Shaw, 2008 ONCJ 130 (CanLII)
          Date: 2008-03-25
          Docket: 34/08
          Parallel citations: 62 RFL (6th) 100
          URL: CanLII - 2008 ONCJ 130 (CanLII)
          Citation: Shaw v. Shaw, 2008 ONCJ 130 (CanLII)

          Family courts decide custody and access issues on the basis of statute and case law defining the best interests of the children. The criminal justice system pays no attention to such interests because it is not geared up to do so nor are the participants widely trained in how the actions of the system — from the officer who refuses to release the defendant at the station, to the duty counsel who allows the defendant to agree to inappropriate conditions of release out of expediency — effect the lives of the members of the defendant’s family. Similarly the Superior Court is tasked with the duty of adjudicating the respective rights of the parties to remain in the matrimonial home pending the resolution of the matrimonial litigation.
          Originally posted by FamilyBlah View Post
          Note: Tayken appears to be reading minds now and has answered this before I asked.
          Not really. The truisms around what parents do to each other as "litigation strategy" is well document in case law and other materials. I just run queries on specific terms which tease out these cases and bring them forward for others to leverage.

          Good Luck!
          Tayken

          Comment


          • #6
            Originally posted by Tayken View Post
            Well, when one balances the results of the order and the argument presented the award of custody and access as set forth by the judge does make a strong statement. The pursuit of criminal charges in a matter like this would only create more conflict and confusion for the children involved..
            If the child or mother had been assaulted by the father, even in a way that caused no physical injury, the father would have faced criminal charges. It has never been found that the criminal charge for pushing someone in a DV should be dropped because it would only create more conflict and confusion for the children.

            What the mother did should have incurred criminal charges, or else such behaviour should not incur charges in other situtations. The fact that she is a parent in a family law proceeding should not insulate her, any more than it should insulate a parent that commits assault. The behaviour is criminal or it is not, the fact that there is a civil proceeing on the matter does not change this.

            Criminal charges do not always rely on just the action, but also the motive and the intent. There is nothing in this case to vindicate the mother.

            Comment


            • #7
              Originally posted by Mess View Post
              If the child or mother had been assaulted by the father, even in a way that caused no physical injury, the father would have faced criminal charges. It has never been found that the criminal charge for pushing someone in a DV should be dropped because it would only create more conflict and confusion for the children.
              But, as demonstrated in Shaw v. Shaw it won't make your Family Law matters any better and may turn out to work against you.

              Originally posted by Mess View Post
              What the mother did should have incurred criminal charges, or else such behaviour should not incur charges in other situtations. The fact that she is a parent in a family law proceeding should not insulate her, any more than it should insulate a parent that commits assault. The behaviour is criminal or it is not, the fact that there is a civil proceeing on the matter does not change this.
              Problem is it has to be proven "beyond a reasonable doubt" in Criminal Court.

              Originally posted by Mess View Post
              Criminal charges do not always rely on just the action, but also the motive and the intent. There is nothing in this case to vindicate the mother.
              The other parent in the matter could bring matters to the JP and file their own criminal charges. Highly unlikely they will be heard. Also, the spill over into the family law matters makes matters too complex.

              "approaching abduction" doesn't state it as "abduction" though.

              It is frustrating for parents no doubt that people can conduct themselves in this manner but, the courts are not condoning this type of conduct and making appropriate family law orders to reflect their disapproval.

              I don't disagree with your points Mess. Just weighing all the challenges the parent faces and the ugly mess that a criminal charge can create.

              Good Luck!
              Tayken

              Comment


              • #8
                Originally posted by Mess View Post
                If the child or mother had been assaulted by the father, even in a way that caused no physical injury, the father would have faced criminal charges. It has never been found that the criminal charge for pushing someone in a DV should be dropped because it would only create more conflict and confusion for the children.

                What the mother did should have incurred criminal charges, or else such behaviour should not incur charges in other situtations. The fact that she is a parent in a family law proceeding should not insulate her, any more than it should insulate a parent that commits assault. The behaviour is criminal or it is not, the fact that there is a civil proceeing on the matter does not change this.

                Criminal charges do not always rely on just the action, but also the motive and the intent. There is nothing in this case to vindicate the mother.
                Well said Mess.

                Hence my "slap on the wrist" comment.

                Someone I know consulted his lawyer about what remedies are available to him in family court to address a long list of (provable) contempt and other reprehensible behaviour by his ex spouse. The situation was very similar to that outlined in the case posted. The lawyer shrugged and said that even if all the evidence establishes wilful action and guilt without a doubt, it is highly unlikely that any judge will place any sort of heavy sanctions (ie. jail time, heavy fines) on a mother with a young child to care for; so does he really want to pour in thousands and thousands of dollars pursuing something that is likely not going to net the offender much in terms of consequences?

                Another went to the police about his ex spouse selling an over half a million dollar matrimonial property without his knowledge and consent by misrepresenting her marital status and other information (which equates to fraud, and definitely over $5,000 in this case i would think) - the police shrugged and told him to go to family court and have it all sorted out there.

                I'm sure there are many more other examples out there.

                No wonder there are so many crying foul when it comes to "fair" and "equal" application of the law.
                Last edited by Exquizique; 07-31-2012, 02:57 PM.

                Comment


                • #9
                  Originally posted by Tayken View Post
                  Where did you find the materials you posted? Can you post the reference to the materials you cited?
                  I found it here at paragraph 8...

                  PARENTAL CHILD ABDUCTION: WHERE FAMILY LAW AND CRIMINAL LAW INTERSECT « family assets

                  Comment


                  • #10
                    Alleged child abductor now in Winnipeg | Winnipeg | News | Winnipeg Sun

                    A truly horrible example of parental abduction ,that is now getting to the prosecution stage.Hard to see how the parent in question can call this "in the child's best interests"

                    Comment


                    • #11
                      Originally posted by Exquizique View Post
                      Another went to the police about his ex spouse selling an over half a million dollar matrimonial property without his knowledge and consent by misrepresenting her marital status and other information (which equates to fraud, and definitely over $5,000 in this case i would think) - the police shrugged and told him to go to family court and have it all sorted out there.
                      Thank you for this post - i am limited in what I can say now (request of my lawyer) for what has yet been submitted? (sorry I do not know the term but regardless I admit that this is getting over my head and my head - things just go in circles.....) But these issues are very real for me and from my perspective:

                      I am thankfull every day that my kids are older, as put here, there is no question of visitation or anything else truely noble that the courts could exact punishment with, even so my ex has on top of the difficulties my actions and my illness' have had on the family, specifically the kids, in spite of the doctors, how they say I handled myself so well under the circumstance, now that I am away from her.......

                      PAS and Parental Alienation - yup I had no clue what - I do now and people can't believe. Her BS arrest for Christmas the best thing that could have happened to me (although I barely am holding on living in a motel room....) The lies, purgery - She has been doing this for so long to keep her secrets I sincerely believe she really thinks it is all true and with her full denial......

                      I have been really down these last months, really down - even with the bank's help which will be so important (they are going to actually provide all the records to show she indeed took care of all our banking and that she made all the transactions, she depleated all the accounts), doesn't help me today as I - struggle to survive. But will she ever have to pay for her lies, the crap she has pulled, even my arrest - my criminal "legal team" which is the Queens University Law legal aid program, that I too am thankful, was approached by the crown last week to set up the paperwork to have her BS charges dropped completely, this time with no peace bond (that I turned down a few months ago).

                      She continues to lie and deny every single thing 100% - how much will the legal fees end up being to get back what she took/stole - the easy items to prove (decided to drop many things to keep my costs down but today it stands at over $250,000 - I don't have a choice but go to court - I don't think the court will make her pay for my legal fees, the costs to provide the courts the proof that her lies are just that.

                      To me, a bigger cost, the kids, well she took every advantage she could from my medical issues to slowly change their perceptions..... I know they need to believe something, and the kids, easier to believe her lies than face the truth that Dad actually is not the villan here. Leave the kids out of it - I have tried so hard, I accept what the kids think - they do not have the truth..... I wait. It is killing me today but I wait.

                      The case conference? Her lies were so thick even the judge - my ex has actually dragged the kids into our divorce!!!! Ex forced the Judge to make an order for them to come forward and produce full financial disclosure from the first day they went to College - Savings, our RESPs, their employers-past and present, current income to thier future employment projections....... The Judge ordered everything! My lawyer said that even he was surprized to hear the judge - her lies are so thick even the judge, the judge didn't have any choice but have the kids make disclosure.

                      But it is ok that she has wrecked havoc with any chance today to even begin the rebuilding process with HER children..... her BS charges, she is happy though, today she has HER house free and clear..... she has everthing she wants today and I cashout $1,100 a month from what is left of my rrsp..... how long will that last? And then there is a slap on the wrist......maybe?

                      Comment


                      • #12
                        Originally posted by murphyslaw View Post
                        Alleged child abductor now in Winnipeg | Winnipeg | News | Winnipeg Sun

                        A truly horrible example of parental abduction ,that is now getting to the prosecution stage.Hard to see how the parent in question can call this "in the child's best interests"
                        Thanks murphyslaw. I'd wondered about this case and recently posted. Thanks for update.

                        Hope these guys get more than a slap on the wrist.

                        If you see more please post and update.

                        Comment


                        • #13
                          Originally posted by Gladtobesingleagain View Post
                          Thanks murphyslaw. I'd wondered about this case and recently posted. Thanks for update.

                          Hope these guys get more than a slap on the wrist.

                          If you see more please post and update.
                          http://www.ottawadivorce.com/forum/f...8-found-12177/

                          Comment


                          • #14
                            Thanks for posting this, Tayken.

                            An interesting read - and although I see you've highlighted certain quotes, after reading the entire case, this one jumped out at me:

                            [110] But a person entitled to custody of a child must demonstrate more than an ability to care for a child. A person entitled to custody must demonstrate insight into the needs of a child which are separate from his or her own needs, and must be able to meet those needs even when - and especially when - the child’s needs are different from those of the parent.
                            and this one:
                            [127] The court was particularly struck by his insight into the effect on Cecilia of travelling two hours each way and transitioning between her parents’ homes. He suggested that the driving be shared –although he was prepared to continue all the driving – to minimize Cecilia’s distress when leaving a parent. By each parent picking up for the next period with him or her, it was the other parent being ‘left behind” not the child. To paraphrase his submission, the parent can take the distress of being left behind; the child should not have to.
                            Any reasonable person would/should understand that both parents being involved in the growth of their child, is an integral part of taking care of their child's needs.
                            Last edited by mcdreamy; 07-31-2012, 09:42 PM. Reason: eta; added another quote
                            Start a discussion, not a fire. Post with kindness.

                            Comment


                            • #15
                              Originally posted by mcdreamy View Post
                              Thanks for posting this, Tayken.

                              An interesting read - and although I see you've highlighted certain quotes, after reading the entire case, this one jumped out at me:

                              Any reasonable person would/should understand that both parents being involved in the growth of their child, is an integral part of taking care of their child's needs.
                              Both excellent quotes. I didn't want to re-post the entire case and just cherry picked the topics. The challenge for this judge in the matter is the "unreasonable" conduct of one of the parents.

                              The whole "past conduct" review done by the judge is excellent. How the judge relates the mother's conduct to the impact to the child and other parent is very well thought out. Another thread may be useful in exploring the analysis in detail.
                              Last edited by Tayken; 08-01-2012, 07:42 AM.

                              Comment

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