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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 11-07-2020, 09:33 AM
Kevin12345 Kevin12345 is offline
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Default Advice needed please!!

My brother is going through separation right now and I’m desperate to help him out as he’s struggling without his kids.

Incident was my brother had his daughter in his arms as she was crying for comfort and his wife tried to pull her away from him because she didn’t want him to go with him out. In reaction, my brother pushed her away to protect their daughter. Wife claimed abuse and called the cops. Cops charged him with dv and he said nothing to them as per his lawyer. Wife wrote there was a history of abuse which is not true at all. She’s been trying to ruin my brother for sometime as there was bad blood between the in laws. She even said ‘I’m going to ruin your reputation’. She has a history of pulling her daughter away from people including my mom.

Long story short, I want to know how this would affect his custody. Cas has also been involved because the child witnessed the incident. They’ve backed off though now for some time. He’s very close to the kids and was more active than the wife in caring for them (our parevts babysat them for years, he works from home to take care of them and is heavily involved in their extracurricular activities more so than the wife).

I’m worried the family court will look at this different for custody. Just any opinions would be appreciated. Any chance of 50/50? I feel the wife is going to exaggerate the claim and run with it. It’s ruining my brothers life. His lawyer said it may decrease custody but they can’t say cause they don’t know how much she’ll claim.
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Old 11-07-2020, 10:19 AM
Stillbreathing Stillbreathing is online now
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First and foremost your brother assaulted his wife. You say he did this in response to her trying to pull his daughter out of her arms. His wife’s inappropriate behaviour does not excuse his. He got caught. She didn’t. What he should have done was to not engage in a physical tug of war over his daughter (his daughter could have got hurt physically). If he wanted to protect his daughter he should have given her to his wife then gone to court to fight for 50/50 or sole custody to him if he can prove that is warranted.

What he did do instead was assault his wife in front of his child, causing the child emotional trauma. Shame on him. His response was reactive, immature and harmful to all three of them. He has now set in motion a criminal court proceeding which will likely result in supervised access to his child for an indeterminate period of time (likely for several months or a year or longer). If there are no witnesses and his wife did not sustain physical injuries, in the end there is a good chance the charges will not stick. However, in the mean time he will likely have a restraining order against him. A criminal judge may make a no contact order. In other words he can not have any contact with his wife or daughter.
He has gotten himself into a pickle by his own actions. This will likely take months or to a year or more to wind its way through criminal court. Taking responsibility for his actions would be a good first step.
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Old 11-07-2020, 10:33 AM
tilt tilt is offline
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Pushing her away was abuse. There is no excuse to lay hands on someone else, and that was upsetting for the child to witness. The trauma of watching a parent be abused has been shown to be more harmful to a child’s health than themselves being abused. Pushing someone also falls under the legal definition of assault.

You should help your brother by acknowledging his behaviour was wrong, so he doesn’t repeat it in future. He should probably be in therapy, and take some parenting courses to help him deal with situations without becoming angry or violent.

The wife may have contributed to the dynamic or been abusive herself, but focusing on her actions is not productive. The comment “she has a history of pulling her daughter from others people’s arms” could be interpreted as your family often using controlling behaviour and refusing to hand over her daughter when requested. Demonizing her is not helpful to creating a positive co-parent relationship. You brother can only control himself and his own actions, and he can change his role in the dynamic between them.

Courts are now recognizing the toxic role of “invisible litigants” from extended family getting over-involved in a family in transition. It sounds like your side of the Family, and possibly hers, are contributing the problem by escalating things, overly demonizing her, and bringing more people’s pride and ego into an already fragile situation.

Please put the children first and encourage your brother to use professionals like social workers to vent to, guide his behaviour and choices; be supportive of his positive choices; and stop running down his co-parent (who he loved enough to marry and have a child with).
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Old 11-07-2020, 10:47 AM
Kevin12345 Kevin12345 is offline
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I should add that he did give his daughter to her minutes before but the daughter came running back to him and clenching him. Same as what happened to my mom. He didn’t ‘push’ her away with two hands, it was pushing her as she pulled her daughter who was clenching him. He was saying you’re hurting her and he pushed her back with one arm. Before that she also recorded what they were saying and was teasing him by saying ‘are you going to hit me’ repeatedly.

Of course our families contributed to this mess, and both are at fault. I’m just asking how it would affect custody. The charges will most likely be dismissed in criminal court as but I want to know how family court will look at it.

Both of them are great parents just not together. I’m not demonizing her on purpose sorry if it came that way. I’m just worried this incident will take custody away from my brother.
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Old 11-07-2020, 11:01 AM
tilt tilt is offline
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Civil court is different than criminal court; him not talking to the police will be held against him. Family courts know that criminal courts dismiss valid intimate partner abuse charges and as civil courts have a lower threshold for proof, dismissed charges are still held as likely proof the abuse happened.

Him minimizing his actions shows little insight into his behaviour and increases the chances that he will be abusive to the co-parent and children in future. He should comply with the (likely to be ordered) supervised access and get therapy to address his anger problems. He made a mistake, a big one, it is his choice of whether he learns from it or doubles down.

Last edited by tilt; 11-07-2020 at 11:03 AM.
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Old 11-07-2020, 11:13 AM
Kevin12345 Kevin12345 is offline
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How can you assume he’ll be abusive towards his kids? Seems you are demonizing him now. He made a mistake without a doubt. He didn’t talk to police cause he was worried the kids would be taken away from both of them and this is the standard advice lawyers give.

He has supervised visits now but is trying to move out of it since there’s no issues with the kids. The daughter is only 2. The son did not witness the incident.

Basically I want to know if there’s any chance of 50/50. If not what is more reasonable to expect.
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Old 11-07-2020, 11:48 AM
tilt tilt is offline
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You asked for advice, based on experience; just because you don’t like the advice doesn’t mean it isn’t valid. Courts know that by the time police are called there is usually a history of abuse that wasn’t reported - which is exactly what the co-parent is claiming. The best predictor of future behaviour is past behaviour; as far as the family court is concerned, when he has unsupervised access to his children he may fall into the same pattern of behaviour, just as they have seen in thousands of other cases. What he did, assaulting the mother with the child in his arms *was* abusive to the mother and *child*. You minimizing his behaviour is NOT helping him. The mother is showing that she is putting the children’s best interest first and keeping them safe.

He is probably looking at EOW, he is unlikely to get 50/50 for several years, if at all. If he is working full time he can’t look after the children for 50/50 (your parents babysitting doesn’t count). If the mom only works part time or not at all, it would make the most sense to have her look after the children with the aid of SS and CS supporting her.

Especially with the new legislation, physical abuse necessitating CAS and Police involvement is very much a black mark against him.
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Old 11-07-2020, 11:49 AM
Stillbreathing Stillbreathing is online now
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You do keep demonizing the other parent in your responses above. The other parent’s actions have nothing to do with your brother’s actions. Period. You are attempting to minimize and dismiss what he has done instead of helping him acknowledge the HUGE mistake he has made and seeking anger management or other counselling to address HIS issues.

Tilt is correct. The judge will see your brother’s actions as an indicator that he is at high risk to be abusive to the kids in the future. Why?
Because research has shown that the single strongest and most significant indicator of future abuse is a history of past abuse and your brother has now established before the courts that he has abused his daughter by assaulting her mother in front of her. The courts will not take thus likely. As for him ever obtaining 50/50...He has now decreased the chances of that happening. None of us on this forum know all the details of your brother’s case and would not be able to give you an accurate prediction. At this point 50/50 isn’t even an option for discussion and should not be your brother’s focus.He has court ordered supervised access. There are many factors that will come into play. How he behaves, whether he exercises his supervised access with no incidents, if he seeks help for his own psychological problems, his level of remorse and taking responsibility for his actions. How many hundreds of thousands of dollars he is willing to spend litigating this and how many years he is willing to spend in court fighting this.
He has a long, hard uphill climb just to get unsupervised access let alone 50/50.
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Old 11-07-2020, 12:07 PM
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Quote:
Originally Posted by Kevin12345 View Post
Basically I want to know if there’s any chance of 50/50. If not what is more reasonable to expect.
Yes. I would take all the responses you get on this and other sites with a grain of salt. No one knows the details of the situation. A message forum like this will not be that helpful for you or your brother. You won't find the answers you are looking for. Either you get a law degree and start doing the research yourself or you hire a professional.

How you can help.

1. Your brother should have a lawyer. Not a crap lawyer. A good one.
2. Your brother will need resources (money) to pay for this lawyers.
3. Family should pool finances to support your brother and the children's relationship to you and everyone.

Money is what is needed now so immediate action can be taken. Be prepared to be able to put 150,000 in legal fees together. Your brother, you and the rest of the family will need to listen to and do what the lawyer tells you to do.

Many situations like your brother's are one off. Shaw v Shaw deals with one-time incidents.

https://www.separation.ca/blog/2008/...-criminal-and/

https://www.canlii.org/en/on/oncj/do...08oncj130.html

https://www.ottawadivorce.com/forum/...ad.php?t=13457

https://www.canlii.org/en/on/oncj/do...30.html#citing
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Old 11-07-2020, 12:21 PM
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Quote:
Originally Posted by Kevin12345 View Post
Long story short, I want to know how this would affect his custody.
Everything lies on how the evidence is presented and what evidence is presented. You need to understand the concept of "hearsay" evidence. A single incident of conflict when parents are separating has little impact. (See Shaw)

For example, you are presenting hearsay evidence on this site that can't be factually proven. They are stories. To be frank every parent "says" they do more than the other parent in court.

You clearly are upset on behalf of your brother. But, you have to realize that there are two parents in every situation and the court does cautiously approach this. But, your brother will need a very very very very good lawyer to structure the evidence and argument properly.

Money is often the major factor in resolution to these cases. If your family cannot come up with the necessary finances to mount a *proper child centric response* with ****PROPER**** legal counsel you won't move the case forward. In many situations if done improperly and with vitriol and vinegar it will move the case backwards.

Quote:
Originally Posted by Kevin12345 View Post
Any chance of 50/50? I feel the wife is going to exaggerate the claim and run with it. It’s ruining my brothers life. His lawyer said it may decrease custody but they can’t say cause they don’t know how much she’ll claim.
Yes. But, it all pivots on facts, proper responses and actions. The lawyer doesn't sound like they have a plan. They should have a litigation consultant working with your brother who can shape every response to the other parent. (Ghost writer etc...) Like I said, defending against this stuff is costly. Clearly if you are coming to a website like this and potentially exposing your brother's situation to the public the lawyer hasn't provided sufficient instruction.

Read more than you write and respond. A good litigation consultant would have your entire family remove social media accounts (or lock them right down). Provide instruction to avoid posting anything personal to a site like this. Etc... To not generate any "feeding evidence" that could be used to support the allegations.

Act like everything you write on social media, message forums, etc... is being read by a judge. Because... it could be.
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