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  • Truisms Exposed! - More good news!

    Costello v. McLean, 2014 ONSC 7332 (CanLII)

    CanLII - 2014 ONSC 7332 (CanLII)

    As with many things caselaw takes time to evolve. The evolution of this one starts with a matter many of us are very familiar with. Some of us too familiar.

    If you need a history lesson it has to do with the now well known issues surrounding establishing a "false status quo".

    http://www.ottawadivorce.com/forum/f...ily-law-15139/

    In this matter recently posted the Honourable Justice Campbell does an excellent job outlining the abduction of a child and immediate return from Newfoundland and how parents should address these kinds of matters. The justice relies upon the wises words of the Honourable Mr. Justice Pazaratz who first coined the phrases now found enshrined in case law.

    Thank you to Justice Pazaratz and the fellow responsible for bringing so much change forward in our system of family law as a result of his hard work and dedication.

    In para. 11 the Justice relies directly on Justice Pazaratz's wise words in Coe v. Tope outlining why emergency temporary motions are challenging. See point "f" in particular:

    Courts must be mindful of – and actively discourage – efforts of parents to unilaterally create a new status quo through manipulation, exaggeration or deception.
    In para 13 the honourable Justice relies upon material that I was not even aware of. Which for one poster (LF32) may be of VERY important significance:

    … A parent cannot unilaterally change a child’s habitual residence by surreptitiously removing the child from one province to another. At one time, it was thought that a parent who had custody of a child could, as an incident of custody, change the child’s residence. Such a conclusion assumes that a custodial parent has the right to change the child’s residence...
    As always I recommend to any facing the abduction of their child in contravention of section 283.(1) to immediately file a motion with the court as this honourable Justice points out in para 16:

    The Applicant commenced his application immediately upon realizing that the Respondent had surreptitiously removed the child from his “home” in Cambridge. Hence the Applicant’s text sent November 29, 2014 (after he had started his action) did not acquiesce to this removal to Newfoundland. The test merely represents evidence of a despondent and depressed parent.
    In fact, the justice does indeed label the matter as "abduction" in para. 17:

    [17] I also find that after he launched this legal proceeding, in these circumstances the text is not an informed acquiescence, agreement or consent, as is intended by the legislation (s.22(2)(b) of C.L.R.A.) nor does it meet the intention of the legislation as set out in s.22(3) of the C.L.R.A.
    For those who are daft and often quick to jump on me to find fault. I recommend you read the Children's Law Reform act. Here I will make it easy for you.

    Section 22.2.(b) reads:

    (b) where the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order; or
    Section 22.3 is titled "Abduction" and reads in full:

    (3) The removal or withholding of a child without the consent of the person having custody of the child does not alter the habitual residence of the child unless there has been acquiescence or undue delay in commencing due process by the person from whom the child is removed or withheld. R.S.O. 1990, c. C.12, s. 22 (3).
    Although subtle and missed by many (and probably the media who should report this case) the mother was indeed found to have Abducted the child in accordance with the Children's Law Reform Act.

    More interestingly the justice has interestingly alinged the conduct of the mother with that of Section 283.(1) of the Criminal code of Canada:

    [18] I also find that the Respondent has intentionally removed and withheld Hunter from this jurisdiction with the intention of depriving the child from any contact or relationship with his father and that by doing so, the court cannot (for public policy reasons) condone, accept or disregard the effect of the Respondent’s unilateral decision upon Hunter.
    Again, for those who seem to need it here is the exact wording of Section 283.(1) "Abduction":

    Every one who, being the parent, guardian or person having the lawful care or charge of a person under the age of fourteen years, takes, entices away, conceals, detains, receives or harbours that person, whether or not there is a custody order in relation to that person made by a court anywhere in Canada, with intent to deprive a parent or guardian, or any other person who has the lawful care or charge of that person, of the possession of that person, is guilty of...
    Interesting parallel between what the justice wrote and the CCC. I suspect it was very intentional by this justice.

    The good news is that the child has been ordered back to their habitual residential location immediately and by January 1st of 2015. If the mother does not comply the police shall take control of the matter and there is more than enough in this order for them to lay criminal charges upon the mother for abduction in accordance with Section 283.(1) of the CCC.

    I can't wait to see the costs order against this child abductor and I hope it is reflects the sizable award that Justice Pazaratz ordered in Coe v. Tope. It is a shame that the justice didn't forward this matter and evidence forward to the Crown to process formal charges against the mother.

    Eventually... Someone will be charged for child abduction in accordance with Section 283.(1) for these self help methods... This is the first concrete step towards this happening.

    Thank-you Justice Campbell for this caselaw.

    Good Luck!
    Tayken
    Last edited by Tayken; 01-22-2015, 04:04 PM.

  • #2
    I believe LF32 started his action shortly after his wife abducted the daughter. I can't recall all the details but I believe he immediately went to the police (and there is a police report). Would he be able to have things proceed along the same as the above? LF32's ex should be changed under 283(1) should she not?

    Comment


    • #3
      Having lived through it, I know the sheer terror involved in abduction and remain appalled that more people don't take the stance that these few judges and Tayken take on the matter. But as Tayken correctly states, case law for this is still evolving.

      The criminal code requires the consent of an attorney general for a prosecution under 283. An evaluation of charge assessment is then initialized. Here's a BC document on the matter. http://www.ag.gov.bc.ca/prosecution-...onChildren.pdf

      As I've mentioned before, those who "plan" this abduction do not do so in the absence of caressing code 285. They're ready for it.
      According to Sections 284 and 285 of the Criminal Code, an accused may be found not guilty of child abduction if the following factors are proven in a court of law:
      284. Defence
      No one shall be found guilty of an offence under sections 281 to 283 if he establishes that the taking, enticing away, concealing, detaining, receiving or harbouring of any young person was done with the consent of the parent, guardian or other person having the lawful possession, care or charge of that young person.
      285. Defence
      No one shall be found guilty of an offence under sections 280 to 283 if the court is satisfied that the taking, enticing away, concealing, detaining, receiving or harbouring of any young person was necessary to protect the young person from danger of imminent harm or if the person charged with the offence was escaping from danger of imminent harm.
      There's the scapegoat. 285. The parent's a drunk, a druggy, a pedophile, he/she beats me, he/she yells in front of child, I'm scared of him/her. The child is unsafe. In my case I spent almost a year disproving it all. My judges transcripts are golden. Some here have already read it. All allegations disproved and a bit of a tongue lashing to my ex.
      With all my hair follicles, urinalysis, blood tests, liver enzymes the judge found the allegations of substance abuse outrageous.

      Regarding the accusations of violence, he stated (actual words)
      On the issue of violence, I will say that it is quite striking to this court that the subject is asserted only after the dissolution of this relationship and not at any time before. Ms. __ never made any report to anyone that I saw with respect to violence during her relationship despite numerous opportunities extended to her to do so by numerous authorities. While she did assert that she'd been the victim of mental abuse, she persistently and consistently declined to mention any form of violent act committed on her by Mr. LF32
      This was just one of her allegations tossed out the window. As you know I was successful in this motion. ALL her allegations were tossed.

      So why was the "abduction" not under any kind of scrutiny?
      The only words mentioned about it (again, the actual wording)
      February 15th, 2014 after the family had apparently spent the day outside sledding, the father, Mr. LF32 went in to work for something of an evening shift and upon his return home, found that the respondent had left with D3. What followed was a position taken by Ms. __ that Mr. LF32 should not see D3 without supervision because, as she asserted, Mr. LF32 had a significant propensity for violence coupled with a difficulty or addiction to either or both of alcohol or illicit drugs. Mr. LF32 disputes all of that and brings this motion
      As mentioned, all allegations were dismissed and I was successful in this motion. My ex relied on 285 of the criminal code as an "out" for the abduction.
      This is where the reform needs to come in to play. The system needs to find a way to protect those who need protecting while weeding out the one's who take advantage of that particular code. In my case, my ex simply told the police "He's not a good dad. I'm afraid he will call you and blame me for parental abduction, so I'm making this report". Oh, he mentally abused me. (Not her actual wording, but you get the jist) No violence, no child abuse, nothing.
      In my factum I included case law such as the following, which may have assisted the decision of my motion:
      In Batsinda v Batsinda, Justice Chappel considered the OCL report with caution and had a number of concerns with the recommendations, particularly because the OCL case worker appeared to have accepted as true all of the allegations of abuse towards both the Respondent and the children, despite the problematic timing of the Respondent’s domestic violence allegations. Justice Chappel found that the case worker’s acceptance of the allegations to be true weighed heavily in her decision-making process.
      Ibid at para 61.
      Whatever the case may be, something needs to be done to ensure 285 is no longer an abduction "get out of jail free card". More examples need to be made out of these parents for any change to occur. I'm tickled pink that some of these judges are opening the doors for this.
      Last edited by LovingFather32; 01-22-2015, 06:35 PM. Reason: spelling

      Comment


      • #4
        285 says nothing about the abductor's belief there is danger, rather it is the "court's" belief so I do not believe your ex had an "out."

        Batshit crazy people could abduct kids if they merely had to state they believed there was a danger.

        No I think 285 is specific and judge in your situation did not believe your ex.

        Comment


        • #5
          Originally posted by LovingFather32 View Post
          Having lived through it, I know the sheer terror involved in abduction and remain appalled that more people don't take the stance that these few judges and Tayken take on the matter. But as Tayken correctly states, case law for this is still evolving.
          We are just seeing the tip of the iceberg on matters such as this one outlined above. Justices are putting forward good case law and it is being reported on. Eventually all the negative advocate lawyers will be well informed that their "tips and tricks" don't work anymore.

          Originally posted by LovingFather32 View Post
          The criminal code requires the consent of an attorney general for a prosecution under 283. An evaluation of charge assessment is then initialized. Here's a BC document on the matter. http://www.ag.gov.bc.ca/prosecution-...onChildren.pdf
          This is correct. Generally, this is not a charge that a peace officer can lay. But, in the case cited above... The justice could have moved the matter to the crown. The awesome and very Honourable Mr. Justice Quinn threatened that just recently!

          Szakacs v. Clarke, 2014 ONSC 7487 (CanLII)
          CanLII - 2014 ONSC 7487 (CanLII)

          If you have not read that case law I recommend you do. It is incredibly funny. Best yet!

          See para. 79 and 80 for the full details...

          However, the same cannot be said of Ms. Szakacs. She was fully cognizant of the surrounding circumstances and intended for the no-trespass letters to obstruct the anticipated orders of this court. I shall give thought as to whether a copy of these Reasons should be sent to the Crown Attorney at St. Catharines for whatever investigation or prosecution he considers appropriate in respect of Ms. Szakacs.
          First time I have ever seen this kind of analysis in case law!

          With regards to the rest of your post LF32 you do have a valid point for the counter argument but, do consider Arabian's position as well. I am more of the opinion that the criminal charges come to light because the objectives of Family Courts is the "best interests" of a child. Criminal charges are not the objective but, when something is so obvious as the case cited above... It may be time to move forward.

          Always remember that a criminal matter is found not on the "balance of probabilities" but the test of "beyond reasonable doubt". Doubt can be put against a parent's argument that they did what they did to "protect" their child if the civil court orders access to the other parent and no criminal charges are presented against the other parent for child abuse or assault.

          The "abuse excuse" does not work. The exception to the charge is put in place for those truly the victims of violent and dangerous situations. Not for those who make flippant false allegations against the other party.

          The other defense that is more common is a lapse in judgement due to mental illness or full on mental illness. it is more common for this argument in defense of the charge than the "abuse excuse" when no criminal charges have been laid etc...

          Good Luck!
          Tayken

          Comment


          • #6
            Originally posted by Tayken View Post

            Always remember that a criminal matter is found not on the "balance of probabilities" but the test of "beyond reasonable doubt". Doubt can be put against a parent's argument that they did what they did to "protect" their child if the civil court orders access to the other parent and no criminal charges are presented against the other parent for child abuse or assault.

            The "abuse excuse" does not work. The exception to the charge is put in place for those truly the victims of violent and dangerous situations. Not for those who make flippant false allegations against the other party.
            Amen to that! Personally I would love to see those who make ''false'' claims of abuse, investigated and punished to the full extent of the law. Why? because these ''fakers" ruin men, destroy children's futures and make life hell for true victims.

            When so many cry wolf for the sake of gaining full custody or financial advantages, it discredits those of us who actually need help and protection ...

            Comment


            • #7
              As usual, Tayken's knowledge and efforts he makes to find and post this stuff and help people on this forum is remarkable!

              Tayken, thank you muchly! Please continue doing what you are doing here. We really appreciate your help. Thanks again!

              Comment

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