Ottawa Divorce .com Forums

BF · #11 08-01-2015, 12:56 PM

More, almost done:

D. What constitutes family violence?

[192] Section 37(1)(g) requires a judge to consider the impact of family violence and whether it is directed toward the child or a family member.

[193] Section 38 of the FLA provides:

38 For the purposes of section 37 (2) (g) and (h) [best interests of child], a court must consider all of the following:

(a) the nature and seriousness of the family violence;
(b) how recently the family violence occurred;
(c) the frequency of the family violence;
(d) whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at a family member;
(e) whether the family violence was directed toward the child;
(f) whether the child was exposed to family violence that was not directed toward the child;
(g) the harm to the child's physical, psychological and emotional safety, security and well-being as a result of the family violence;
(h) any steps the person responsible for the family violence has taken to prevent further family violence from occurring;
(i) any other relevant matter.

[Emphasis added.]

[194] The definition of �family violence� in section 1 of the FLA includes:

...

(d) psychological or emotional abuse of a family member, including

(i) intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property,
(ii) unreasonable restrictions on, or prevention of, a family member's financial or personal autonomy,
(iii) �,
(iv) intentional damage to property, and

(e) in the case of a child, direct or indirect exposure to family violence;

[Emphasis added.]

[195] The section 1 definition of a family member under the FLA includes (a) the person�s spouse or former spouse and (e) the person�s child.

[196] In the present case, the FLA�s definition of property encompasses the parties� commercial property: s. 1, �family property� and s. 84.

[197] Following the August 11, 2012 trial, I found there had been a number of occasions where the Respondent and her mother had not respected the existing access order. At trial in August 2011, the Claimant sought a change of principal residence for B.B., but he wished to defer any change until fallout from the separation and his own situation in Vancouver had become settled. In my findings, I also noted the Respondent�s desire for stability, predictability and her desire to keep the children together.

[198] I noted the beneficial influence of the Claimant�s personality on B.B., the Claimant�s personal interests and the positive male role model he would provide for B.B., as well as Dr. La Torre�s concerns about B.B.�s development. Dr. La Torre noted B.B.�s need for a male presence in his life. He noted, as well, that B.B. found himself somewhat outside the �family triangle linking him, his sister and mother�, which he saw as dominated by the stronger personalities of the Respondent and J.B.

BF · #12 08-01-2015, 12:57 PM

Last one, OntarioDaddy. With hope it is helpful:

E. Did family violence occur in this case?

[199] I find the Claimant�s litigation conduct, related both to the selling of the commercial property and to parenting arrangements, considered in their totality, is a form of emotional abuse and harassment that constitute a form of family violence.

[200] The Respondent�s conduct and needless litigation has forced the Claimant to incur litigation expenses, damaging his financial well-being and health. This hindered his capacity to preserve parenting time with the children. Litigation has used up much of his emotional and financial resources.

[201] The stress resulting from the Respondent�s conduct and the needless litigation it generated has precipitated in the Claimant a sometimes very painful medical condition that has needed surgical procedures. Contact with the Respondent and litigation aggravates the condition. I note that he was in much pain on his March 2012 and December 2012 access visits, but the children were not made aware of this; and as well in the December 2012 holiday visit, he persisted despite the pain, providing the children with an excellent holiday experience. However, he had to shorten it somewhat, which the Respondent criticized, due to his condition at that time.

[202] The Respondent�s refusal to pursue recommended professional counselling for anger management, or take part in courses such as �Parenting after Separation�, and the history thus far, give little reason to expect a change in the Respondent�s future behaviour. While anger problems appear not to have directly impacted the children�s relationship with the Respondent, it remains a concern.

[203] The Respondent complains indignantly about the stress of litigation, for which she blames the Claimant. But I have no evidence of ill-health or stress-related condition from which she suffers.

[204] The best interests of children suffer when abusive oppositional behaviour and litigation fomented by one parent�s conduct harms the health and financial well-being of the other parent. This in turn harms the children�s economic safety and security.

[205] Further, the Respondent�s reckless and oppositional behaviour connected with the commercial property has damaged the children�s safety, and economic security. It effectively deprived them of receiving any benefit from sale of the property, endangered the Claimant�s capacity to support the children and consumed money the Claimant could have used for a greater number of parent time visits. The Respondent knew her delaying and oppositional conduct harmed the Claimant�s capacity to pay the cost of access visits.

[206] If a parent�s abusive conduct harms the well-being of the other parent to the extent they may have to go on stress leave, this negatively impacts the child�s economic security.

[207] The Respondent knew the children loved their father very much and felt hurt when the Claimant had to move to Vancouver. They did not fully understand the reasons he had to move away. The Respondent knew the father had to move to Vancouver to earn enough to pay support and pay debts. The children missed their father and needed as much personal contact with him as practicable after he moved. The Respondent�s conduct made this increasingly difficult.

[208] The Respondent knew or ought to have known the impact her conduct was having on the Claimant�s financial situation; the Claimant made it clear to her. From this, I infer the Respondent is prepared to let her anger at the Claimant influence her to act in a way that indirectly harms the best interests of the children. I find the Claimant will not conduct himself in that way; the litigation history proves otherwise.

[209] In summary, I find that the Respondent has directed violence at the Claimant that has indirectly harmed the children�s psychological and emotional well-being and economic security. Without a change of principal residence for B.B., I anticipate the Claimant could expect to face the same continuing pattern, usually subtle, sometimes overt, of oppositional behaviour and interference. Without intense counselling, I doubt the Respondent will be able to change her behaviour. She has no respect for professional opinion and apparently little regard for court orders.

[210] I find that a change of principal residence for B.B. to Vancouver will likely reduce conflict and tension that has surrounded parenting arrangements previously. I find the Claimant will facilitate access; the Respondent will inhibit it. I find the Claimant will not conduct himself as has the Respondent regarding access visits. This is in the best interests of B.B.

[211] I will now turn to the list of s. 37 factors. I must be satisfied that whatever order I decide to make protects, to the greatest extent possible, the child�s physical, psychological and emotional safety, security and well-being.

BF · #13 08-01-2015, 01:01 PM

Quote:

Originally Posted by LovingFather32

When an individual is accused of DV .. there is a shock to the system. There is no handbook. I called the police right away, frantic to see D4. I didnt know what an emergency motion was nor did the police tell me. The police told me to retain a lawyer. I did right away and started an application.

I think defining delay is a tough one sometimes. Nobody is a court expert/family law guru the moment of an abduction in the midst of false allegations.

You need to be able to prove that you "disagree and do NOT consent to the situation" .. As for me? .. I called 911, went to the station, called her family (on phone bill), called missingkids.ca (have transcripts), have e-mails to lawyer requesting an emergency motion, etc, civil texts to ex notifying gently of my disapproval and trying to work things out for the child, etc.

If a parent does not go to police, does not search for their child, does not retain counsel and start an application and shows complete acquiescence .. then ONDaddy's perception hold weight here. If a parent does all of that that then I agree .. they must not be too interested in finding their kid anyways.

I hope that parents like these are few and far between.

I agree with everything you've written and I thank you for it. However, I do feel this type of situation is genderless. This is not yet recognized. Either way, it should not be condoned by any system.

I thank you for your insight and knowledge. I've been a fan of yours for a while.

BF · #14 08-01-2015, 01:06 PM

Quote:

Originally Posted by Janibel

True enough^^^ Any caring parent will do anything and everything possible when faced with this situation - panic mode is natural when our children's safe whereabouts are concerned. No place for apathy.

Domestic violence is a serious issue and should be dealt with in criminal courts. Allegations should be proven beyond a reasonable doubt to have any consequences in family court - otherwise it's nothing more than posturing for financial gain.

As a survivor of long term DV, my only wish is that those who make these false claims are held accountable to the highest extent of the law.

Countless lives are ruined by "fakers" who abuse the system when there are so few resources made available to help true victims both male and female. The reality of family court is that whoever gives a better show, has the most aggressive lawyer, makes up the most flat-out lies ... gains advantage. This has to change .....

In my case, I had ER photos, many years of police interventions until formal charges were made. Ex was prosecuted and found guilty. Easy case with no ambiguities. The majority of cases are not so cut and dry, this is where the courts go wrong - in assuming that a so-called victim is telling the truth.

My heart goes out to those falsely accused ...

I believe you are on the ball, especially with the red I've highlighted. Fakers are indeed fakers. The law does not recognize this and it indeed destroys lives. You are right, it should be corrected as study after study, "fakers" are a growing problem.

I thank you for your input. I am glad this discussion has taken off to possibly provide hope and change to a system that affects so many families.

The root is essentially "the children's best interests" but a liar / faker is not aligned with that way of thinking. Recognition of this requires advocacy IMO.

LovingFather32 · #15 08-01-2015, 01:35 PM

Quote:

Originally Posted by BF

However, I do feel this type of situation is genderless. This unfortunately is not yet recognized. Either way, it should not be condoned by any system.

It certainly is genderless. I would never assume otherwise, nor write it anywhere. I will also do some research to help your case out.

BF · #16 08-01-2015, 01:41 PM

Quote:

Originally Posted by LovingFather32

It certainly is genderless. I would never assume otherwise, nor write it anywhere. I will also do some research to help your case out.

Thank you for that, LF32. There's little research available but another eye could provide a newfound perspective. I rather take comfort in your profound ability and professional skill set for inspiration.

Thank you again.

mcdreamy · #17 08-01-2015, 07:35 PM

Quote:

Originally Posted by BF

OntarioDaddy, this is the research I have sourced regarding the new BC family law:

I was going to ask you to cite your source(s), as citing sources is a rather particular required internet courtesy for both the author(s) of your source and for the forum readers. I know I personally wanted to follow your source and read other comments, but I'm also of firm belief that the majority of our forum members are intelligent enough to follow the links and read thoroughly, follow comments, etc., without the pursing.

I'm also not fond of quoting entire volumes of text, as anyone who is trying to follow via Tapatalk loses much of the screen. For future consideration, links are the way to go. And in most scenarios, we don't need the emphases.

But urrrrgg.. seriously? It appears you owe OrleansLawyer an apology for plagiarism.. That's what happens when you don't cite your sources -- People go looking for them.

http://www.ottawadivorce.com/forum/f...-law-bc-15878/

BF · #18 08-01-2015, 08:35 PM

Quote:

Originally Posted by mcdreamy

http://www.ottawadivorce.com/forum/f...-law-bc-15878/

Thank you for the link. I could not find NewOrleansLawyer's post to cite nor do I believe readers / members of this board are not intelligent.

The base of information I provided OntarioDaddy did stem from NewOrleansLawyer but the extensive research and depth is mine, as it is a direct copy and paste from an email to my lawyer.

A private message to address your accusation would've sufficed. I would have had no issue posting NewOrleansLawyer's post link for additional foundation. No offence intended. If necessary, an apology and compliments goes out to NOL. It has been helpful to my case.

I am not sure what emphasis is offensive or lost for TapaTalk users, McDreamy. Could you explain?

Thanks again.

Otherwise, peace on this board. PMs could rectify (personal?) issues prior to displays of harming online reputations that have no ill intent.

arabian · #19 08-01-2015, 09:37 PM

I think what mcdreamy is trying to point out to you is merely some forum rules:

1. If you do, as you say, "extensive research" and use another author's work then you must site that particular author. You may very well have researched very hard and provided this "extensive research" in an email to your lawyer but you still are obligated to site your source. Just because it is in a personal email from you to your lawyer doesn't make it automatically exempt from need to site your source.

2. In future posts (where you use someone else's idea) it might be helpful to put in the link and then cut and paste a very small portion of it onto a post. In doing this you are emphasizing the passage and there is no need for bolding.

3. Many people view the forum threads when they are out in a restaurant or in a park or ... while on their hand-held devices and simply do not want to read a weighty tome, rather are more interested in people's posts.

I am sure you will contribute titillating posts for our reading pleasure. We just ask that you keep the textbook cut-paste to a minimum in the future.

Cheerio

BF · #20 08-01-2015, 10:29 PM

Quote: