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  • #16
    Originally posted by Headwaters1 View Post
    I believe do understand the difference between Custody and Access. I perhaps communicated it poorly.

    I see looking back my mistake in my write-up was perhaps not relaying just how uncooperative and incredibly hostile the other side continues to be.

    I would imagine that normally the CAS/Ex-parte series of events is a burst of anger and if they fail I would think most applicants would calm down. Not in this case.
    1. If you want to understand how a justice evaluates "communications" when determining custody / access this is the best case to review:

    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.
    2. Please do go run out and buy the book "Tug of War" and read it. You will note that Justice Brownstone talks about the negative impact it has on one's case. In every emergency ex-parte motion I have ever seen the party who is lying intensifies their false allegations and some times attempts to double-down on their theory.

    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

    Comment


    • #17
      Surprising enough I have just learned that my ex has changed lawyers.

      You're a fortune teller Tayken.

      Comment


      • #18
        Originally posted by Headwaters1 View Post
        Surprising enough I have just learned that my ex has changed lawyers.

        You're a fortune teller Tayken.
        These emergency ex-parte motions have a very identifiable pattern when false allegations of "domestic violence" come into play. Good justices know the game that is played out with one and how they come crashing down. If you are in specific jurisdictions the justices are getting so bold as to just call them out in the court room and predict the next 8 steps in an effort to curb the nonsense.. It is really sad that there are negative advocate lawyers who fail to adjust their patterns of behaviour.

        Good Luck!
        Tayken

        Comment


        • #19
          So if it is true the LAO certificate has run out then I am assuming she will be paying out of pocket for her lawyer. So I don't think we'll be going to trial...this will wind down in negotiations. Now the trick is how messy these discussions will get...my ex isn't too up on the law...and very stubborn.

          I'd like to hold onto my lawyer but use him less to keep costs down. I'm already in $20k and money is tight. Is it possible to retain my lawyer on record but attend certain non-court meetings without him?

          For example the disclosure on OCL coming in 40 days or so. Is it a written report or just verbal? Do I really need to drag my lawyer out to that? It's an hour commute so I'm looking at $1600 right there. He's $375/hr.

          Does that make sense? I am anticipating this might be lots of mediation before we get her coming to terms...my biggest fear is hours and hours of wrangling just to find out we need to pull the trigger on a motion...

          So I'd like keep my powder dry.

          Comment


          • #20
            Update: Another accusation of child abuse at a drop off. After three days at cottage with his brother I dropped him off and the W says "this is third black eye in four months"? I look at my boy and he has an ever so faint red ring under his eye (rubbing it likely after waking up from a long drive... I've since picked him up again and so sign if any bruising etc...it was nothing). And what other black eyes? .??? Everything is always exaggerated...there have been no other such events.

            Anyways no formal complaint was filed. I texted her back right after the drop off saying "ok please catalog all these alleged events...when, where, pictures, were they addressed at drop off".

            No response and that seemed to kill it in its track. It was just highly irrational. But 12 months after separation it's still so hostile from her side.

            I think she might be a little delusional at this point.

            Interesting that each time she makes an accusation it's preceded by a challenge to her. When I first said I intend to fight for 50/50 way back a year ago she called CAS. When my lawyer sent first disclosure request in Jan she went to police to try and file a report (didn't work). And last Friday I sent the same disclosure request to her brand new lawyer...so guess what...she fires back.

            I spoke with OCL to see where they are....they are waiting on a whole bunch if documents. So it's months away. Looks like there will be little chance to sort this out before his first day of school starts in early sept. (She moved 40m away).

            So this is a little mobility case too (I think that's the termed used). If we are to do joint it means one of us has to move.

            I've purchased the Family Law Practice book 2014. Fantastic. I am going through it and it covers off all relevant case law with three line summary below each legal statute in various acts.

            I've been reading reading. Highly recommended to anyone on here fighting a high conflict case.

            One question...when should I press on that disclosure? She has very clearly understated her income - she ran a biz earning over $30k but used all the major expenses I paid for (house/car/internet etc) to show only $7k in income.

            First disclosure request was Jan...I just reissued a request last week. My new hand text book says 10 days. Is that reasonable? Should I press harder next week?

            Comment


            • #21
              the best advice you got here is not going for sole custody. you mentioned nowhere that she is unfit or that you can prove that. if you both aim for sole custody, one of you might get it, and im not optimistic that it would be you. you have to act as a pecekeeper and try and show how shared custody is in childs best interest. that way at very least parallel parenting is very likely.

              when my ex served me with bunch of lies I was ready to serve her with bunch of truth and my lawyer was all fired up to go for full custody. it was members of this forum who nailed some rationale into my head.

              regarding the school, you need to file a motion for it and writing in that affidavit why is it best for the kid to go to school in your area. your job flexibility is one example. after all, she moved.

              my ex lives 40 minutes away. school is a battle every summer. She lost. I get the kid every weekday and every 4th weekend. even though on agreement it says week on week off. in your case she should drive the kid during her time? too far? her problem

              Comment


              • #22
                Yeah I'm off the sole custody bent now. Funny enough it eased up for me when i went to self representing. The financial ticking time bomb hanging over my head was making ME aggressive. I wanted to find pressure points to make her settle (hopefully making her fear that I might get sole). With legal aid there seems to be no reasonability because it's like fighting a war where one side has all the gunpowder.

                I have 20 year in business - I've witnessed and negotiated some big deals and so I understand the dynamics to a settlement...and I could see very early on the other side had no motivation or mental readiness to come to terms . But the $60-80k it was going to take starts to make you wonder if you are doing more harm to your kids from a financial perspective. I have two boys (an older one from another marriage) that wipes out his college fund for sure and maybe most of young one's too.

                But now I am pulling a budda (as I call it) okay...relax...let this thing roll out. Time is on my side and it's not chomping $2500 per month out of my pocket. It changes everything...

                Mediation, mediation, mediation, lots of correspondence with the wife's lawyer... I'm going to wear out her training wheels . She'll be heading off to the relative clam of real estate law when this is all done. (Actually I feel for family lawyers...what a noisy, nasty way to make money)... I don't begrudge the $375 per hour...I just know I've designed better ways to manage time on far more complex systems then the way this system is rigged. It truly archaic.

                I am sincerely fortunate I had a great judge and got 50/50 at the exparte so I should play to that strength. Others here don't have that luxury.

                Comment


                • #23
                  I have purchased the Family Law Practice 2014 - great book for $155 on LexisNexus.com...

                  It has helped me find key case law on each pertinent point. The OP is accusing me of Verbal Abuse. Well I am trying to find this in index. I have looked under Verbal, Domestic Abuse, Violence.

                  There doesn't seem to be any place where this is located in the Divorce Act or Family Law statutes...

                  If she is making the claim - no doubt it is in hopes of frustrating access (turns out that is pretty weak) but also for the purposes of seeking spousal support (we have a pre-nup).

                  Under spousal support there is a section called "Cruelty" - is this what they would be looking to fight it under?

                  Anyways - I am just struggling with where in the divorce law this particular issue is covered.

                  Comment


                  • #24
                    I was labeled as verbal abuser. I told her she can use email (which she does now) or FW, or file a restraining order. No more phone calls. If your verbal abuse occured 1 year ago then ita a bit too late. Is she says you are abusing her now switch to email and keep using recording device for own protection. She cant do nothing about verbal abuse unless she proved serious threats.

                    That book is damn expensive. Is it for ontario only?

                    Comment


                    • #25
                      Only for ontario but only half the price of a meeting with my lawyer.

                      Yes no further claims of abuse. She says it was a one time thing a year ago.

                      So if this is laughable we should be able to settle at mediation based on a positive OCL report right?

                      Is there any strategy to settlements? For example should we close off child access and custody agreement before moving on to financial?

                      Does anyone have past experience with settling? There are a lot of wacky issues in my case...for example once we get past access/custody then I have to deal with the fact she has been under estimating her income so I will want her income imputed. She just quit her job and said I don't work anymore but had been working for years prior earning a good income.

                      We had a prenup but she wants to fight that.

                      So I wonder if we signed off on access if they would just dig their heels in on the financial stuff.

                      I am hoping the legal aid people just tell her to settle for the first reasonable offer.

                      Comment


                      • #26
                        Originally posted by Headwaters1 View Post
                        Only for ontario but only half the price of a meeting with my lawyer.

                        Yes no further claims of abuse. She says it was a one time thing a year ago.

                        So if this is laughable we should be able to settle at mediation based on a positive OCL report right?

                        Is there any strategy to settlements? For example should we close off child access and custody agreement before moving on to financial?

                        Does anyone have past experience with settling? There are a lot of wacky issues in my case...for example once we get past access/custody then I have to deal with the fact she has been under estimating her income so I will want her income imputed. She just quit her job and said I don't work anymore but had been working for years prior earning a good income.

                        We had a prenup but she wants to fight that.

                        So I wonder if we signed off on access if they would just dig their heels in on the financial stuff.

                        I am hoping the legal aid people just tell her to settle for the first reasonable offer.
                        you had a prenup and now she wants to fight that? I hate it when people sign stuff in good faith then try and back out of it later. As for the rest, if she digs her heels in on one thing, I would bet she would dig her heels in on all issues.

                        Comment


                        • #27
                          So my stbx changed lawyers in June. She was on legal aid. I am not sure she is on it anymore with the new lawyer. I believe LAO has free mediation right? does anyone know what they are called formally? I would like to request this from her lawyer...just wondering how to ask. 1) I'd really like to mediate and 2) it will tell me if she is on LAO.

                          Does anyone have info on these mediations....are they on record...is her lawyer there? Is a professional mediator in the room?

                          Comment


                          • #28
                            My feeling/experience is that in a hearing of merits unless abuse allegations ARE seriously supported they are dismissed out of hand.

                            My ex claimed abuse and the judge couldn't have cared less.

                            I think it was also related to how I and her presented ourselves.

                            I wouldn't waste TOO much time fighting unsubstantiated abuse allegations and focus on the business going forward.

                            Comment


                            • #29
                              That's a relief to hear Links. I tried searching "Hearing if Merits". Was that something done within a motion or at a SC? It sounds like a wonderful thing...like a grand jury process. My case has been limping along (I'm the respondent) for 11 months. Her affidavit contains nothing that makes any legal sense as a claim. I've been saying to everybody I discuss this with...it sure would save a lot if money if a judge could take 15min to read this crap and just toss it out.

                              On another note I read a procedural book on family law and it says if a file is older than 365 days without a conference scheduled then the clerk will file a notice of dismissal. What happens if I just let the thing die (assuming the other side is too embarrassed to proceed) do we just hang in limbo? What becomes of custody/access? How do we deal with equalization and support?

                              Is it just back to square one?







                              Sent from my iPad using Tapatalk

                              Comment


                              • #30
                                Mediation goes through Family Law Section in the courthouse. Go to,the Family Law offices at the courthouse and ask about mediation.

                                My daughter just went through the process.

                                Step 1. Go to,the courthouse and ask for family court mediation services. Usually speak with a coordinator who will take details - your name etc and find you a mediator

                                Step 2 . Make an appointment to complete intake session 1/2 hr with the mediator.

                                At the intake session the mediator will ask you,lots of questions to see where the mediation needs to focus on and its a good idea to,have a prioritized list and some details to,share.

                                step 2. Ex. Is now contacted and asked to complete an intake session, again 1/2 hr with the same mediator.

                                Step 3 . Mediation date is set up. You can choose to mediate with or without lawyers present. You can also usually do it by teleconference, Skype if you cannot be in the same room.

                                Mediator can make a report if you want,which can then be shared with your lawyer.

                                She was told the first hour is free and then its a set rate per hour paid by both prorated to income.

                                She actually used these services at her initial separation in another town in Ontario and is now using it again in her present residential city. The first time he actually had a cancellation ( couple who were booked next had a fist fight in the hallway so their session was cancelled) so he just continued and did not charge them.

                                Good luck.

                                Comment

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