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Political Issues This forum is for discussing the political aspects of divorce: reform to divorce laws, men's rights, women's rights, injustices in the divorce system, etc.

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  #11  
Old 01-07-2019, 12:21 PM
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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.

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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.

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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 To my knowledge- if a charge is withdrawn it's withdrawn very early in the process so that this would be helpful in determining whether there are precautionary measures even needed.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.

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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.

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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.
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  #12  
Old 01-07-2019, 12:28 PM
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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"


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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.


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


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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.
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  #13  
Old 01-08-2019, 02:47 PM
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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.

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"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.

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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 at 02:50 PM.
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  #14  
Old 01-08-2019, 02:54 PM
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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.


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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.



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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.
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  #15  
Old 01-08-2019, 07:03 PM
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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.
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  #16  
Old 01-08-2019, 07:06 PM
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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.
Evidence = facts

Ugh. The evidence is what is used to determine a case. Case law is only used to inform a judge in the decision phase. You don't stand before a judge and argue case law.
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  #17  
Old 01-09-2019, 10:59 AM
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Originally Posted by iona6656 View Post
I think it should only be on an interim basis.

Interim in family law creates a status quo which tends to lock in a final result. This is how fathers tend to lose their children, they lose custody on an interim basis at first, and then the status quo causes them to lose the kids entirely.


The problem is that misbehaviour by mothers does not trump best interests of the children. So even if the mother alienates the kids, lies in court, and steals money, there will not be any consequences because they might hurt the kids. The net result, of course, is that it encourages the above behaviour.


I'm sure you can find exceptions, that does not make me wrong


Quote:
I mean- what consequences could attach realistically?
Financial for moderate misbehaviour, I would be fine with incarceration for deliberate false accusations. I would rather lose an arm (we'll say non-dominant arm for now) than lose custody of my kids. I see no reason why somebody cutting off my arm should face a harsher penalty than somebody lying in court to steal my kids away from me.


We have to get over the idea that custodial mothers cannot be hit financially. Let them eat kraft dinner for a bit. Lots of NC fathers eat that with their kids during their EOW sojourns and the kids are doing just fine.


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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.
The consequence of a vexatious municipal claim is wasted time and money. The consequences of a vexatious abuse claim are far more damaging. I don't think they can be compared.


I actually think that we want to discourage abuse claims, unless they are real.

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agreed. In general- I would like to see more costs ordered at motions.
More full recovery in particular, clear winners should not be out of pocket.
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