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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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  #21  
Old 11-08-2020, 07:08 PM
Kevin12345 Kevin12345 is offline
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No court signed off on it. It was just what was sent to us from their initial separation letter. Weekly supervised visit at their location choice. Given the charge we went ahead with it but saw it as a temporary measure. Now we want a 3rd party to supervise since they are interfering and recording and the kids and their dad look out of their comfort zone. We are hoping they can agree to this at a location of our choosing but not sure.
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  #22  
Old 11-08-2020, 07:36 PM
Stillbreathing Stillbreathing is offline
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Remember supervised access is supposed to be a temporary thing unless there are extenuating circumstances as in my case. My ex has permanent supervised access because he himself needs supervision for his own safety after his brain injury.
In your brother’s case there should be no reason the supervisor and location of supervision cannot be changed. Your brother needs to discuss this at at case conference and then can bring a motion to request it. Another option would be a supervised access centre but not sure if they are open due to Covid.
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  #23  
Old 11-09-2020, 01:24 PM
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Tayken Tayken is offline
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Originally Posted by tilt View Post
I don’t think threads are removed. Keep in mind that in addition to the $150,000 in legal fees your brother is looking at at least three years, possibly five, before trial.
With a proper lawyer you can get some things resolved faster (custody and access) on a long motion but, who knows with COVID-19. I agree that getting to "final trial" is a 3-5 year epic journey. But, there are things the OP's brother can do to get access and custody sorted out even on a temp basis that will put them in the "settlement" space if done RIGHT.

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Originally Posted by tilt View Post
And during that time both sides get more entrenched and adversarial. Every flaw, every mistake is magnified and the kids are the ones caught in the middle (they will need to be interviewed multiple times, there will be tension in both houses, CAS will be called by somebody in the extended family, unwise words will be said in the children’s hearing, etc). Their relationship history will be re-hashed and recast as heavily abusive on both sides as courts like black and white, the grandparents will smack talk each other, access exchanges will be fraught and possibly recorded.
All very true. If a good lawyer is leading the case then they will let the other party fall into this trap and then present a clean and clear case of equality to demonstrate that it is the other party is just throwing mud. The courts have really figured out the whole mud slinging thing. VERY VERY VERY hard for most litigants to not engage back. Many (bad) lawyers will tell you that you have to address each and every thing and sling back. That is NOT the way to do it in 2020. But, again, you need a very $$$ lawyer who has done it before to assist in managing the case through.

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Originally Posted by tilt View Post
Your brother would be far better served by getting therapy, not talking about the case with you or anyone else in the family (you are waaaayyyy to involved and biased to be any help beyond recommending he get professionals other than lawyers involved), admitting to the mother he was wrong and will never be violent again now that he has insight to his behaviour, and both focusing on the future as co-parents in a positive way.
I am not supportive of this advice. This pattern often feeds negatively into the blame cycle of warring parents.

I would recommend you seek a mutual no contact order for BOTH parents. I have seen some judges do this in the past 3-4 years and it works incredibly well if you track it through the case. The whole "parents need to talk intimately and often" about their children is somewhat nonsense. Especially when the "tug of war" starts in Family Law.

Log book works the best (digital). If you want parents to really understand how to communicate then make them do it through the lawyers. It gets really $$$ to send stupid communications. As well, a lawyer will quickly see how ridiculous their client's expectations are of "parenting control" when they have to send a letter from their client telling them that the children should not be watching a particular movie/tv show. LOL

Nothing demonstrates a "controlling parent" more than a letter, on a lawyer's letter head, telling the other parent what to do for the bedtime routine, what TV shows the children are allowed to watch, what they need to eat etc...

I am a strong supporter of eliminating the unnecessary communications parents have after separation. Especially heated ones.

Now, this doesn't apply to ALL cases. If a child has true special needs (not bullshit undiagnosed gluten intolerance) then communications need to be put in place but, a digital log could help solve that. (Our Family Wizard with no email capability turned on etc...)

Parents fight through communications. No contact takes the breath out of both parents!


Quote:
Originally Posted by tilt View Post
They can seek out a seperation coach to be child-focused and much more likely to get closer to 50/50 for a lot cheaper - as long as he denies the abuse the mother will not be able to trust that he won’t repeat the behaviour.
Unless the "abused" parent can actually produce a pattern and history of ***evidence*** a single instance of a charge does not mean much these days. As shown in Shaw the mother that SLAPPED the father in the face got access back. Shaw has been used a lot for one-time incidents. This incident (as described) doesn't even come close to the physical threat of violence and then actual violence of Shaw and that mother got 50-50 right back on an emergency motion. Why is this situation different? (No one knows the evidence of this matter so...)

I would also recommend that the father in this matter retain a top-notch criminal defense lawyer. They are not cheap but, can get things done quite rapidly.
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  #24  
Old 11-09-2020, 01:29 PM
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Originally Posted by Stillbreathing View Post
Domestic violence charges will have an instantaneous and immediate negative effect on access, resulting in either no contact with the children or supervised access if children are present during the alleged incident as in your brother’s case.
Not if a good lawyer brings the matter to family court right away. Its a myth that a parent has to sit around waiting for their criminal matter to be done prior to going to family court. See Shaw and related cases as examples.

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Originally Posted by Stillbreathing View Post
Yes it is possible to eventually achieve 50/50 after the charges are dismissed. However, as other posters have indicated the road to 50/50 is substantially longer , more expensive and more difficult than if there were no such charges.
You would be surprised what a very good (and expensive) lawyer can do on a family law case even with a charge on it. Now, these lawyers don't take on shit clients so they have a reputation of appearing before justices (whom many have previously been in private practice with!) who know this fact. Who you choose to represent you matters... If they are willing to represent you.

The good lawyers who "win" often only choose to represent clients who are not crazy. Trust me judges know the difference between lawyers. Especially in Southern Ontario.

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Originally Posted by Stillbreathing View Post
In some cases were the domestic violence has deemed to be based on false allegations or as a devious unfounded litigation tactic, custody has actually been reversed.
Rare that they reverse it.... Usually ends up back to the original status quo of Joint Custody as outlined in the Acts. Access usually ends up 50-50. The falsifying parent has to be on a campaign of terror to lose access and custody.

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Originally Posted by Stillbreathing View Post
It all depends on multiple factors. One thing you have to remember is that once parties relinquish control to a judge in a court, the outcome becomes an expensive crap shoot. Anything can happen.
^^^ very true. But, this matter has charges involved. It needs to be before the court (both Criminal and Family). Nothing they can do about it now.
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  #25  
Old 11-09-2020, 03:07 PM
Kevin12345 Kevin12345 is offline
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Thanks again tayken. Is there anyway you can dm me any on these lawyers you are speaking about so that I can pass onto my brother. Would be appreciated.

In our culture it takes a lot to get divorced so there is still some hope for reconciliation but we’ll see.
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  #26  
Old 11-09-2020, 08:09 PM
tilt tilt is offline
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It isn’t hard to divorce in Canada; it just takes one partner to file. In all the cultures that make it socially unacceptable to divorce, they also make it VERY socially unacceptable to have your husband arrested for assault. That she broke that taboo, and followed through with seperation tells me that the abuse was likely to be worse than you thought/acknowledged. She has already done the hard part of calling the police on him and publically airing all the Family’s dirty laundry, she doesn’t have a lot to lose; except her pride if she goes back to him. Reconciliation is unlikely unless the husband makes some major moves now, but 0% of them are escalating things with a lawyer. He has consulted, so he knows his rights and responsibilities.

When the two lawyers accepted the file, the first thing they did was run the financials to see how much money was in the file. You didn’t even blink at the $150,000 legal fee, which tells me there is a lot of money in this file. Her lawyer has let her know how much she will get in CS, SS, CTB, and equalisation. The lawyer is also ball-parking how much they can make. Divorce may be frowned upon in your culture, but I am sure there are plenty of men with one foot in Canadian culture and one foot in your traditional culture who would not find a wealthy divorce unappealing.

So, if he is serious about reconciliation, walk back from acrimonious letters between lawyers, help him get culturally-specific non-religious counselling, maybe make a major concession (like increasing her mehr, if applicable) to show he is committed to change, and recognizes how much he will lose if he loses her love permanently. It’s possible to mature and learn from these mistakes and have a stronger relationship. But it is rare to be able to do so without guidance from unbiased, non-family members. Good luck to them.
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  #27  
Old 11-09-2020, 08:43 PM
Kevin12345 Kevin12345 is offline
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Thanks for the advice tilt. Gives me some perspective to pass on.

Obviously the abuse is only known to them and I have a bias. You can assume the abuse was ongoing but we’ll never know. I’m married as well and my wife and I have gone through our physical incidents which could be considered abuse from both sides but that was years ago and we don’t ever get near that anymore cause we’ve grown past that and know when to stop. Looking back it made us stronger cause we knew we were committed once we got over that. I’m hoping my bro can do the same. Unfortunately the cops were called and lawyers are involved or else my wife would have done the same if I didn’t talk to her out of it.

The lawyer fees we know about. It is what is. That’s the system. What can we do. I’d wish people would realize they could spend their time and energy on fixing their issue vs. Spending it on a case and resenting someone for years but that’s just my opinion. To each their own. Of course depends on severity. In my parevts generation pushing someone would not at all warrant a police call let alone slapping your kids but times have changed and this is the law of the land. I’m not condoning hitting anyone though. Just noting the difference. Anyways, thanks and here’s hoping things work out. Just hard to communicate feelings when there’s lawyers involved and no contact order.
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  #28  
Old 11-10-2020, 02:37 AM
backinthesaddle backinthesaddle is offline
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I am in court for this everyday. Ontario has a strict dv policy. However, if your brother's ex has nothing to substantiate her claim of abuse ie police reports, witnesses, medical records etc. then it won't be an issue.A judge is not going to take hearsay with no evidence from someone going through an acrimonious divorce and custody hearing. They weren't born yesterday and see through this BS. Pushing someone out of the way who is in your face and wrestling a child out of your arms is very trivial and I wouldn't be surprised if the Crown suggests a Sec 810 peace bond or conditional discharge if no injuries were sustained. I would agree to it immediately if offered. If your brother does not have a criminal record this is how most minor first incident assaults play out. This is the reality of our court system. I would prefer to see the system work hard for those who are truly abused. Not to use it against a man in family court. Not to downplay domestic violence but from what you describe this most often wouldn't meet the threshold. It is simply the "must arrest" policy of the dominant aggressor. Because the kids witnessed this then CAS is notified. Your brother will need a lawyer for this charge due to domestic violence component. Due to Covid court is so backlogged. Tell your brother to advise his lawyer to speak to the Crown and get it resolved sooner than later.
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  #29  
Old 11-10-2020, 07:49 AM
Kevin12345 Kevin12345 is offline
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Well there is a police report though right. No witnesses though which doesn’t help either of them. I think the cas issue is dealt with it as they haven’t contacted him for sometime and they actually asked them to reconcile as the son asked them to in his interview but who knows. He is waiting for the police report and then his lawyer will talk to the crown. Is there no way he can just negotiate the charges to be droppped since it’s basically hearsay? I’m worried his job will be affected if he takes the peace bond or conditional discharge and then there is still some degree of guilt then? Tayken mentioned a good lawyer can negotiate the family court portion while the criminal court is ongoing. What would be their argument? Just Shaw v Shaw? Would it be worth the risk? I don’t know if his lawyer is good or not. I’ve checked lawyerratingz and canlii but not much on them. His counsel is just advising to take it slow and prove yourself in the visitations and character references.
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  #30  
Old 11-10-2020, 11:43 AM
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Janus Janus is offline
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Careful.

I notice that you are minimizing the incident. Tilt obviously has some strong biases, but that is the type of allegations that your brother will be facing in court. The other lawyer is going to paint him as an abusive and dangerous individual who cannot be allowed safely around the children.

To be clear, I'm not saying that any of this is fair. Your brother needs to understand quickly that the family law system is horribly biased, and that he needs to defend himself well. The mother called the cops and got a DV charge laid. That is pretty much an epic win on her part. It will be pretty tough to climb out of that hole.

The main danger here is that, to be safe, the mother gets temporary custody until trial. If that happens, he is in deep trouble. He needs to stop that somehow.
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