Originally posted by Headwaters1
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V.K. v. T. S., 2011 ONSC 4305 (CanLII)
Date: 2011-09-09 (Docket: DF 2217/09)
Citation: V.K. v. T. S., 2011 ONSC 4305 (CanLII),
CanLII - 2011 ONSC 4305 (CanLII)
See paragraphs 72 forward... (I recommend you read this one end-to-end as well.)
A mere statement by one party that there is an inability to communicate will not be sufficient to preclude a joint custody order. The court must carefully consider the parties’ past and current parenting relationship to obtain the “big picture” respecting the parties’ ability to communicate, rather than simply relying on allegations of conflict by one or both of the parties, or a snapshot of the situation that exists at the time of trial.
The highly conflicted often thing that the more mud they throw and the more negative advocates (friends, family, anyone willing to lie for them on paper to "save" their family/friend) come out of the woodwork. This is because of the HIGH standard of evidence continues throughout the file.
For example, if they go back and retract their false allegations, even though it would be better for them and demonstrate "good faith" they continue to go down that slippery slope.
This is because the expectations of emergencies is very high. (Read my other threads on this - I focus on studying this area of law a lot.) It brings the threshold of the balance of probabilities to a much higher ratio of "truth" to make a determination.
Suffice to say, the worst thing anyone can do is to bring an improper emergency ex-parte motion. There is no worse advice a negative advocate solicitor can give than instructing their client to bring a emergency ex-parte motion when one is not warranted.
Even after having seen justices advise applicants who have pulled this stunt to "hire a new lawyer" in the matter... they continue to use this nightmare of a lawyer. Despite a justice breaking standard and advising a client directly to "hire a new lawyer".
Any reputable self respecting lawyer would have left the file ages ago if their client brought and lost an "emergency" ex-parte motion. Simply on the fact that their client misrepresented evidence to them.
Good Luck!
Tayken
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