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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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  #1  
Old 04-11-2017, 10:37 AM
Vector Vector is offline
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Default Sole Vs. Joint Custody

I made an application for sole custody based on verbal and emotional abuse by ex wife. This was after 7 months of trying to get the collaborative approach moving but that was met with deliberate stalls and delays which made me realize negotiating with this person is pointless.

So divorce process is not moving anywhere...still no formal response (and its now like 90 days since due) to application, first CC to get consent to sell home, release CAS reports, and get OCL involved has to be rescheduled and no new date in sight.

I want to move this along as we are stuck in MH together and its affecting everybody's well being. She is on legal aid, works minimum 10 hours a week minimum wage. Is getting very comfortable in the separation phase since I cover all expenses including interest on matrimonial debt.

Would backing down to joint custody with a 50-50 shared access at minimum be held against me at this point to hopefully speed things up and avoid trial? I believe in the long run, my kids will get sick of her behavior and want to live with me anyways. I don't want to drag them through an OCL assessment and the info on this sight on OCL suggests OCL is a risk. CAS reports may be damning but 2 of the 3 cases concluded validating the behavior occurred but assessed to risk to children as low. The third case is open and ongoing largely because the situation in the home is very tense.

I never thought in my life divorcing someone would be so complicated. Perhaps my application was too aggressive despite my legitimate concerns.

Any advice on how to turn this around?
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Old 04-11-2017, 10:47 AM
billiechic billiechic is offline
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Mediation. If you can live in the same house can you not sit at the same table with a mediator?

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Old 04-11-2017, 10:59 AM
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Tayken Tayken is offline
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Quote:
Originally Posted by Vector View Post
I made an application for sole custody based on verbal and emotional abuse by ex wife.
Claims of "abuse" in accordance with Rule 24.(4) of the CLRA ("Violence and Abuse") are no walk in the park. Furthermore, a lot of the matters that go before the court have an allegation of "verbal and emotional abuse" by one or both parties. To be frank, they are as common as teeth. They are subjective claims and often do not meet the criteria of 24.(4) and never see the light of day as litigants often can not produce the necessary evidence to rely upon this rule.

It is a shame that lawyers don't better prepare their clients on what a "TRUE" claim for "violence and abuse" is and the obligations of evidence are in accordance with Rule 24.(4).

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This was after 7 months of trying to get the collaborative approach moving but that was met with deliberate stalls and delays which made me realize negotiating with this person is pointless.
Wham there is your problem. Part of the collaborative (mediated and arbitration) is screening for domestic violence and power balance issues. Both lawyers agreed that there were none of these issues prior to engaging in these methods. So now you are going to court and claiming them after the failure of a method that has already possibly done the screening and came up nill.

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Originally Posted by Vector View Post
So divorce process is not moving anywhere...still no formal response (and its now like 90 days since due) to the application, first CC to get consent to sell the home, release CAS reports, and get OCL involved has to be rescheduled and no new date in sight.
You mentioned the other party has Leagal Aid. Legal Aid has been under significant fire from the judiciary (Pazaratz twice and very recently!) and a the Obudsman for the funding of unnecessary litigation in Family Law. So don't expect them to move fast. Furthermore, the other party's certificate may not be sufficient for a court battle and they may want to settle the matter.

Why not serve a detailed settlement in accordance with the Rules and see what happens. You can serve as many offers to settle as you want. In fact, I encourage you to send as many as possible to the other party rather than "fighting it out in court".

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I want to move this along as we are stuck in MH together and its affecting everybody's well being. She is on legal aid, works minimum 10 hours a week minimum wage. Is getting very comfortable in the separation phase since I cover all expenses including interest on matrimonial debt.
Send over a number of offers to settle in accordance with the Rules. The lawyer is compelled to review them with their client and consider them as options.

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Would backing down to joint custody with a 50-50 shared access at minimum be held against me at this point to hopefully speed things up and avoid trial?
No, send over a comprehensive (VERY DETAILED) offer to settle on all issues of custody, access and child support. I mean detailed! Cover off everything. Leave no stone unturned. Your lawyer can provide you with a template from O'Brians Forms that has everything in it. Modify it to a 50-50 with a 2-2-5-5 access schedule, proper CS based on your incomes on the offset calculation and be done with the nightmare. As soon as you have Custody, Access and Child Support agreed upon then you can move.

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Originally Posted by Vector View Post
I believe in the long run, my kids will get sick of her behavior and want to live with me anyways. I don't want to drag them through an OCL assessment and the info on this sight on OCL suggests OCL is a risk.
OCL is a huge waste of time.

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Originally Posted by Vector View Post
CAS reports may be damning but 2 of the 3 cases concluded validating the behavior occurred but assessed to risk to children as low. The third case is open and ongoing largely because the situation in the home is very tense.
An agreement made on consent is always the best way to go. The LoA lawyer will press their client hard to settle. So long as what is being offered is reasonable.

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Originally Posted by Vector View Post
I never thought in my life divorcing someone would be so complicated. Perhaps my application was too aggressive despite my legitimate concerns.
It is probably too agressive. Claims of "violence and abuse" are not easy to bring. They create conflict. Neither party has fled the living situation. There are lots of things working against your cliam. CAS has not acted to remove the children from the situation... etc...

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Originally Posted by Vector View Post
Any advice on how to turn this around?
Detailed (I MEAN DETAILED) offer to settle for full joint custody and equal residency on a 2-2-5-5 access schedule should resolve the major issues. You don't want to battle custody and access in a courtroom.

SS, the house, etc... may require litigation. Remember, LoA is going to want to recoup their costs from the other party. No doubt there is a lean against the house already from them. If you want to find out just have your lawyer pull the service ontario record on the house. The lean will be registered in plain sight. I believe if you call LoA they will even tell you about the lean (as you are a joint owner of the property) and for how much.

When you know how much you can easily assess if enough money has been put aside for trial - if any.

Good Luck!
Tayken
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Old 04-11-2017, 12:14 PM
Vector Vector is offline
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Quote:
Originally Posted by Tayken View Post

Wham there is your problem. Part of the collaborative (mediated and arbitration) is screening for domestic violence and power balance issues. Both lawyers agreed that there were none of these issues prior to engaging in these methods. So now you are going to court and claiming them after the failure of a method that has already possibly done the screening and came up nill.
Possibly, I think they were just legitimately thinking the collaborative process was the best approach to go, however you need two to participate in that process. I had not thought of the screening aspect but appreciate you bringing that up to be wary of.

I definitely appreciate your advice, hard as it is to swallow and will follow up with my lawyer.
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Old 04-11-2017, 12:22 PM
billiechic billiechic is offline
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They do not always screen properly. Heck I have sat there while my ex said nasty things with the mediator barely able to maintain control. She apologised after. The first guy was not so considerate.
If two parties are bent on working out an agreement, they will put you through mediation anyway. Just make sure you are working with them to be safe.
We have yet another mediation coming up and I am insisting on separate rooms.

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Old 04-11-2017, 12:23 PM
billiechic billiechic is offline
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Vector..CAS can help with mediation. Ask them if they would arrange that..for the best interests of the kids to get this resolved of course

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Old 04-11-2017, 01:50 PM
Vector Vector is offline
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CAS are somewhat involved as we are an open file but not in terms of mediating custody, just monitoring and encouraging the co-parenting during the cohabitation from my understanding. I appreciate that and will look into it.
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