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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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  #11  
Old 02-07-2018, 10:40 PM
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Do you not have competent legal counsel to advise you on this stuff?
If there is an ongoing matter before another court the family court judge will not offer opinion, or likely allow any testimony, that would affect that matter. Furthermore, allowing your adult children to testify in family court could be a disaster for you in the personal injury/litigation lawsuit.

You need competent legal counsel.
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  #12  
Old 02-07-2018, 11:04 PM
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I think something that you have to realize is that you have a) family court which deals with division of assets, child and spousal support and then you have b) criminal court which would deal with charges your ex or Crown has laid against you for assault. There should be no grey area.

I have read on this forum (for many years) on how men are the victims of false accusations. You might find it interesting that I was a victim of false accusation. My ex's g/f attempted to charge me with threatening her and her son. I was understandably furious at the time but fortunately I had an excellent divorce lawyer who told me to hire a criminal lawyer. I did this. I didn't even bother to attend court. Instead I hired a pro to represent me. The matter was dropped. The important thing is that it could never be used against me in family court. Sure, I could have gone to court and flung mud against my ex but to what end? The matter was a non-issue. There existed no transcript of testimony of witnesses that could be used against me. Money very well spent IMO.

I don't pretend to understand your situation but I do know that there comes a time when one has to step back and let someone fight for you. If handled properly, your ex's criminal litigation may very well be the nail in the coffin for her. It shouldn't be too difficult to show that your ex was so incensed of losing custody that she started the "whip-lash" litigation. Her credibility would be crushed.

I suspect that your ex has access to some $$ and is merely tormenting you. You need someone in your corner who can objectively address matter so you can get on with your life.
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  #13  
Old 02-08-2018, 09:40 AM
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Quote:
Originally Posted by arabian View Post
Did your daughter make a statement (at the time of the alleged DV) to the police?

getting one's kids involved in divorce stuff is generally distasteful to judges (along with videotaping them and trying to use that for evidence).

I'd tread very carefully here.
No she did not. Nor was she given the opportunity.
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  #14  
Old 02-08-2018, 09:44 AM
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Originally Posted by arabian View Post
Keep in mind that any witnesses you call can (and likely will) be examined by OC.

I thought you had sold your house and were now working on imputing income for your ex. I'm having difficulty grasping the relevance of a DV allegation from several years ago.
This is correct. STBX is the one who amended pleadings for claim of tort to strengthen spousal support claim along with with damages.
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Originally Posted by arabian View Post
Sure you'll likely take some flack from the other side about this past situation but sometimes it is better to just suck it up, let them take their jabs, and then move on.
These are more than jabs, its a claim, for tort that would leave me without a home and working until i die.

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A good lawyer knows exactly what their witness is going to attest to. Court is pressure cooker. Are you certain of what your adult child(ren) will say in that environment with their mother staring them down?
All I need is the truth.

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Judge will most certainly be thinking that having one's children (adult or not) testify in court will not in any way aid in reunification of the family. This action could backfire on you.
I know, and I agree. Thing is that bridge has been blown up long ago by STBX.

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Think this through carefully.
I am, and thats why I'm on ODF.
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  #15  
Old 02-08-2018, 09:46 AM
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Originally Posted by arabian View Post
Surely the whiplash is a matter handled outside of family court? I'd be checking into whether or not the matter belongs in family court and go from there.

Personal injury lawyers don't typically go after small potatoes (you) and instead look to be paid by insurance companies.
Nope, tort from DV is fairly common, unfortunately. These aren't PI lawyers, they're family lawyers looking to maximize claims.
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  #16  
Old 02-08-2018, 09:48 AM
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Quote:
Originally Posted by arabian View Post
Do you not have competent legal counsel to advise you on this stuff?
If there is an ongoing matter before another court the family court judge will not offer opinion, or likely allow any testimony, that would affect that matter. Furthermore, allowing your adult children to testify in family court could be a disaster for you in the personal injury/litigation lawsuit.

You need competent legal counsel.
Agreed, I have two on limited retainer. One says, "well, custody and access is settled", D18 is an adult and can rebut these claims."

Other says "medical records provide strong defense already".
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  #17  
Old 02-08-2018, 09:57 AM
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Quote:
Originally Posted by arabian View Post
I think something that you have to realize is that you have a) family court which deals with division of assets, child and spousal support and then you have b) criminal court which would deal with charges your ex or Crown has laid against you for assault. There should be no grey area.
As always A, thanks for your responses. A search in CanLii will show that tort from DV is dealt with in family court.

Quote:

I have read on this forum (for many years) on how men are the victims of false accusations. You might find it interesting that I was a victim of false accusation. My ex's g/f attempted to charge me with threatening her and her son. I was understandably furious at the time but fortunately I had an excellent divorce lawyer who told me to hire a criminal lawyer. I did this. I didn't even bother to attend court. Instead I hired a pro to represent me. The matter was dropped. The important thing is that it could never be used against me in family court. Sure, I could have gone to court and flung mud against my ex but to what end? The matter was a non-issue. There existed no transcript of testimony of witnesses that could be used against me. Money very well spent IMO.

I don't pretend to understand your situation but I do know that there comes a time when one has to step back and let someone fight for you. If handled properly, your ex's criminal litigation may very well be the nail in the coffin for her. It shouldn't be too difficult to show that your ex was so incensed of losing custody that she started the "whip-lash" litigation. Her credibility would be crushed.
Justice has actually made the same comment, i.e. "ship has sailed on the children, so now pursuing this"

Quote:
I suspect that your ex has access to some $$ and is merely tormenting you. You need someone in your corner who can objectively address matter so you can get on with your life.
Yes... STBX lawyer is horrible and worse is juicing STBX. Money that could go to her or to the children. STBX lawyer has convinced STBX that pursuing this avenue will be advantagous.

She may be right, as I, in my OTS, will offer an amount, as per case law, but nothing like what they are asking in their claim, which would leave me with nothing.

* I have spoken to D18 at length, we are extremely close, and there is nothing I would not give or do for her.

I would be asking D18 to tell the truth. To rebut the DV narrative put forward by STBX, and to confirm that after DoS, STBX seriously injured herself. i.e. intervening event.

I welcome criticism and I thank all for there input.

Resepectfully

PND
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  #18  
Old 02-08-2018, 09:02 PM
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I would be prepared to argue vigorously that her injury claims not be addressed.
No charges were filed against you. In initial separation proceedings was this ever addressed or is it something new? I'm sure there are just as many (or likely more) cases on CanLii that take the opposite view of things.

So your ex must have a real dandy of a lawyer.... now he/she sees themself as a personal injury lawyer? hah... what a joke... anything to make a buck these days. Hopefully the judge you get will have some experience in PI law and kick the OP's argument to the curb.
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  #19  
Old 02-09-2018, 07:36 PM
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Never call a child as a witness... Even if they are an "adult". There is enough written about this but, I remind you of this great article:

http://www.oba.org/en/pdf/sec_news_f..._Not_Niman.pdf

3. Children’s Evidence

DON’T submit a letter from a child by attaching it to an affidavit.

- Instead, may consider including the information from the child in an affidavit of one of the parties. Although the Family Law Rules permit an affidavit to contain information that the affiant learned from someone else and believes to be true, the circumstances and context in which the child has made the statements will be crucial the its reliability and the weight given to it by the court.

- In Evidence in Family Law, Chapter 4: Children’s Evidence, Alfred Mamo and Joanna Harris confirm that if the court is to seriously consider statements made by a child based on a parent’s affidavit, “it is also important that information with respect to the child’s age, level of maturity and experiences on which the child’s opinion is based be before the court”. (at 4:20.20)

DON’T meet with a child and have them swear an affidavit.

- Courts have taken into consideration affidavits sworn by children in some, limited circumstances. It appears that where an affidavit of a child has been considered or admitted by the court, the child is typically an older teenager. (See for example, Holmes v. Holmes [2009] O.J. no. 94 (S.C.J.), Preece v. Preece, (1991), 30 A.C.W.S. (3d) 226 (Gen. Div.) and Jhuman v. Moakhan (2007), 161 A.C.W.S. (3d) 600 (S.C.J.)

- As an alternative to having the child swear an affidavit, particularly with younger children, consider having the OCL involved or asking for a judicial interview.

- The Children’s Law Reform Act provides:

64 (1) In considering an application under this Part, a court where possible shall take into consideration the views and preferences of the child to the extent that the child is able to express them.
(2)The Court may interview the child to determine the views and preferences of the child.
(3) The interview shall be recorded.
(4) The child is entitled to be advised by and to have his or her counsel, if any, present during the interview.

- In Evidence in Family Law, Chapter 4: Children’s Evidence, Alfred Mamo and Joanna Harris opine that a child’s right to participate in proceedings that directly involves him or her is increasingly becoming an accepted approach in family law.

- See: B.J.G. v. D.L.G [2010] Y.J. No. 119 (Y.T.S.C.). In this case, at para 2, the court stated “all children in Canada have legal rights to be heard in all matters affecting them, including custody cases”. The case also comments on the rights of children to be heard during all parts of the judicial process including conferences, hearings and trials, on the importance of meaningful participation of children and an inquiry at the start of the process to assess the ability and desire of the children to participate, the possible methods of presenting evidence about the children’s views and the role of judicial interviews.

- See: L.E.G. v. A.G.I. [2002] BCSC 1455. In this case, Justice Martinson confirmed that the court has discretionary jurisdiction to interview a child even without the consent of parents (para 4)

- For a detailed discussion of introducing statements made by children and issues relating to the hearsay rule, particularly in the context of child protection proceedings, see Evidence in Family Law: Chapter 11: Child Protection Proceedings, Donna Wowk and John Schuman

- Note: See also S.G.B. v. S.J.L. [2010] O.J. No. 3738 (C.A.) where the Ontario Court of Appeal permitted a Motion by a 16 year old child for leave to intervene in the father’s appeal from a custody order. In permitting the child intervenor status on certain limited terms, the court noted that permitting a child who is the subject of a custody dispute to be added as a party to a case is rare. The Court of Appeal allowed the child’s motion however, in light of the child’s age, his maturity and the effect that the proceedings would potentially have on his life given the circumstances of the case. The court noted at para 17: “the trial judge’s order raises important and difficult issues. We think it would benefit the panel to hear J.B.’s perspective on these issues through the submission of his own counsel”.
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  #20  
Old 02-09-2018, 07:40 PM
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The only proper way to do it is have the 18-year-old hire their own lawyer to represent them as was done in S.G.B v. S.J.L. This is very rare.
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