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What to do - Do I call my D18 as witness to defend myself ?

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  • #16
    Originally posted by arabian View Post
    Do you not have competent legal counsel to advise you on this stuff?
    If there is an ongoing matter before another court the family court judge will not offer opinion, or likely allow any testimony, that would affect that matter. Furthermore, allowing your adult children to testify in family court could be a disaster for you in the personal injury/litigation lawsuit.

    You need competent legal counsel.
    Agreed, I have two on limited retainer. One says, "well, custody and access is settled", D18 is an adult and can rebut these claims."

    Other says "medical records provide strong defense already".

    Comment


    • #17
      Originally posted by arabian View Post
      I think something that you have to realize is that you have a) family court which deals with division of assets, child and spousal support and then you have b) criminal court which would deal with charges your ex or Crown has laid against you for assault. There should be no grey area.
      As always A, thanks for your responses. A search in CanLii will show that tort from DV is dealt with in family court.


      I have read on this forum (for many years) on how men are the victims of false accusations. You might find it interesting that I was a victim of false accusation. My ex's g/f attempted to charge me with threatening her and her son. I was understandably furious at the time but fortunately I had an excellent divorce lawyer who told me to hire a criminal lawyer. I did this. I didn't even bother to attend court. Instead I hired a pro to represent me. The matter was dropped. The important thing is that it could never be used against me in family court. Sure, I could have gone to court and flung mud against my ex but to what end? The matter was a non-issue. There existed no transcript of testimony of witnesses that could be used against me. Money very well spent IMO.

      I don't pretend to understand your situation but I do know that there comes a time when one has to step back and let someone fight for you. If handled properly, your ex's criminal litigation may very well be the nail in the coffin for her. It shouldn't be too difficult to show that your ex was so incensed of losing custody that she started the "whip-lash" litigation. Her credibility would be crushed.
      Justice has actually made the same comment, i.e. "ship has sailed on the children, so now pursuing this"

      I suspect that your ex has access to some $$ and is merely tormenting you. You need someone in your corner who can objectively address matter so you can get on with your life.
      Yes... STBX lawyer is horrible and worse is juicing STBX. Money that could go to her or to the children. STBX lawyer has convinced STBX that pursuing this avenue will be advantagous.

      She may be right, as I, in my OTS, will offer an amount, as per case law, but nothing like what they are asking in their claim, which would leave me with nothing.

      * I have spoken to D18 at length, we are extremely close, and there is nothing I would not give or do for her.

      I would be asking D18 to tell the truth. To rebut the DV narrative put forward by STBX, and to confirm that after DoS, STBX seriously injured herself. i.e. intervening event.

      I welcome criticism and I thank all for there input.

      Resepectfully

      PND

      Comment


      • #18
        I would be prepared to argue vigorously that her injury claims not be addressed.
        No charges were filed against you. In initial separation proceedings was this ever addressed or is it something new? I'm sure there are just as many (or likely more) cases on CanLii that take the opposite view of things.

        So your ex must have a real dandy of a lawyer.... now he/she sees themself as a personal injury lawyer? hah... what a joke... anything to make a buck these days. Hopefully the judge you get will have some experience in PI law and kick the OP's argument to the curb.

        Comment


        • #19
          Never call a child as a witness... Even if they are an "adult". There is enough written about this but, I remind you of this great article:

          http://www.oba.org/en/pdf/sec_news_f..._Not_Niman.pdf

          3. Children’s Evidence

          DON’T submit a letter from a child by attaching it to an affidavit.

          - Instead, may consider including the information from the child in an affidavit of one of the parties. Although the Family Law Rules permit an affidavit to contain information that the affiant learned from someone else and believes to be true, the circumstances and context in which the child has made the statements will be crucial the its reliability and the weight given to it by the court.

          - In Evidence in Family Law, Chapter 4: Children’s Evidence, Alfred Mamo and Joanna Harris confirm that if the court is to seriously consider statements made by a child based on a parent’s affidavit, “it is also important that information with respect to the child’s age, level of maturity and experiences on which the child’s opinion is based be before the court”. (at 4:20.20)

          DON’T meet with a child and have them swear an affidavit.

          - Courts have taken into consideration affidavits sworn by children in some, limited circumstances. It appears that where an affidavit of a child has been considered or admitted by the court, the child is typically an older teenager. (See for example, Holmes v. Holmes [2009] O.J. no. 94 (S.C.J.), Preece v. Preece, (1991), 30 A.C.W.S. (3d) 226 (Gen. Div.) and Jhuman v. Moakhan (2007), 161 A.C.W.S. (3d) 600 (S.C.J.)

          - As an alternative to having the child swear an affidavit, particularly with younger children, consider having the OCL involved or asking for a judicial interview.

          - The Children’s Law Reform Act provides:

          64 (1) In considering an application under this Part, a court where possible shall take into consideration the views and preferences of the child to the extent that the child is able to express them.
          (2)The Court may interview the child to determine the views and preferences of the child.
          (3) The interview shall be recorded.
          (4) The child is entitled to be advised by and to have his or her counsel, if any, present during the interview.

          - In Evidence in Family Law, Chapter 4: Children’s Evidence, Alfred Mamo and Joanna Harris opine that a child’s right to participate in proceedings that directly involves him or her is increasingly becoming an accepted approach in family law.

          - See: B.J.G. v. D.L.G [2010] Y.J. No. 119 (Y.T.S.C.). In this case, at para 2, the court stated “all children in Canada have legal rights to be heard in all matters affecting them, including custody cases”. The case also comments on the rights of children to be heard during all parts of the judicial process including conferences, hearings and trials, on the importance of meaningful participation of children and an inquiry at the start of the process to assess the ability and desire of the children to participate, the possible methods of presenting evidence about the children’s views and the role of judicial interviews.

          - See: L.E.G. v. A.G.I. [2002] BCSC 1455. In this case, Justice Martinson confirmed that the court has discretionary jurisdiction to interview a child even without the consent of parents (para 4)

          - For a detailed discussion of introducing statements made by children and issues relating to the hearsay rule, particularly in the context of child protection proceedings, see Evidence in Family Law: Chapter 11: Child Protection Proceedings, Donna Wowk and John Schuman

          - Note: See also S.G.B. v. S.J.L. [2010] O.J. No. 3738 (C.A.) where the Ontario Court of Appeal permitted a Motion by a 16 year old child for leave to intervene in the father’s appeal from a custody order. In permitting the child intervenor status on certain limited terms, the court noted that permitting a child who is the subject of a custody dispute to be added as a party to a case is rare. The Court of Appeal allowed the child’s motion however, in light of the child’s age, his maturity and the effect that the proceedings would potentially have on his life given the circumstances of the case. The court noted at para 17: “the trial judge’s order raises important and difficult issues. We think it would benefit the panel to hear J.B.’s perspective on these issues through the submission of his own counsel”.

          Comment


          • #20
            The only proper way to do it is have the 18-year-old hire their own lawyer to represent them as was done in S.G.B v. S.J.L. This is very rare.

            Comment


            • #21
              Originally posted by Tayken View Post
              The only proper way to do it is have the 18-year-old hire their own lawyer to represent them as was done in S.G.B v. S.J.L. This is very rare.
              Taken, (and everyone else), thank you for your responses. I have seen some of the material you have referred me to.

              I will try to do this without involving any of my children - and yes... my circumstances have unfortunately been more than extraordinary - but I'm not complaining - i am sure others have and are facing more litigious matters.


              At the end of the day, D18, S16, S15, D14 want NOTHING to do with STBX. This is not my doing - and out of respect for my children, I will not go into the very valid reasons they feel that way.

              D18 is old enough to refute clear lies. I do not WANT to rely on her testimony... as I said I will do everything to avoid having do to so - but it seems wrong to not allow my D18 to help me when I need her.

              I understand that the optics may be that I am placing D18 in the middle of things, but she has chosen NO relationship with STBX - she has her very valid reasons (I am sad about it but I understand). She wants to help her one stable parent.

              I am clearly conflicted. I love all my children and I would never harm them. I will do this without involving them, but I still struggle with the decision not to, as I am looking at working for the rest of my life if I lose.

              PND

              Comment


              • #22
                Not to derail this but as a kid from a broken parental relationship it is difficult to fully comprehend and deal with the emotions from being let down by a parent. I cannot imagine having to witness the things your kids have. Hopefully you are getting them some help to unpack all this confusion and hurt because once a parent has let you down once, they will continue to do so and the pain of knowing your parent is a whackjob hurts even more than the original hurt.

                Comment


                • #23
                  I agree with Tayken. If you are going to do this then make sure your 18yr old is represented independently by her own legal counsel.

                  I understand the difficult situation you are in. I hope, whatever you decide, you will be able to shut your ex down once and for all.... having things properly recorded to stop the nonsense.

                  Comment


                  • #24
                    How old was your daughter when the event actually took place?

                    Although she is 18 now, her perception of the events may be in question if she was young.

                    Comment


                    • #25
                      Originally posted by SadAndTired View Post
                      How old was your daughter when the event actually took place?

                      Although she is 18 now, her perception of the events may be in question if she was young.
                      DV event - she was D12

                      *Intervening* event #1 she was D13
                      *Intervening* event #2 she was D14

                      Perception is not so much an issue as D18's ability to rebut STBX denial of occurrence of intervening events.

                      Comment


                      • #26
                        I would be very careful with her testifying in light of the ages. This happened six years ago. She has also had her own issues with her mother that drove her to live with you. From the sounds of it your ex has a sleezeball lawyer and those types feed off situations like this and will attack your childs credibility. If you insist on using her, I agree with others that she have her own lawyer to intervene during questioning.

                        You really should use the facts you have rather than the witness account from your daughter. You said you have medical evidence which speaks more than what your kid will say. She was 12 when this happened and the other lawyer will work to destroy her credibility. Regardless of how much she wants to help you, being on the stand as a witness and having to face your parent are difficult enough without the added challenge of being berated for your memory. I was a witness in my 20s and the prep I went through was very hard. In the end I didn’t testify and it left a mark for a number of years.

                        Comment


                        • #27
                          Originally posted by plainNamedDad44 View Post
                          DV event - she was D12

                          *Intervening* event #1 she was D13
                          *Intervening* event #2 she was D14

                          Perception is not so much an issue as D18's ability to rebut STBX denial of occurrence of intervening events.
                          Why are you even arguing this stuff... The limitation for this stuff is 2 years in Ontario. The writ of damages is for something that happened more than 2 years ago.

                          Honestly... You should have a lawyer.

                          Comment


                          • #28
                            Originally posted by Tayken View Post
                            Why are you even arguing this stuff... The limitation for this stuff is 2 years in Ontario. The writ of damages is for something that happened more than 2 years ago.

                            Honestly... You should have a lawyer.
                            No its not, changes to the Statue of Limitations in March of 2016. I have several lawyers.

                            Comment


                            • #29
                              Originally posted by plainNamedDad44 View Post
                              No its not, changes to the Statue of Limitations in March of 2016. I have several lawyers.
                              So the claim against you is for sexual assault? That was the only change I was aware of. Your daughter witnessed you sexually assault the other parent?!

                              Comment


                              • #30
                                Originally posted by Tayken View Post
                                So the claim against you is for sexual assault? That was the only change I was aware of. Your daughter witnessed you sexually assault the other parent?!
                                No not sexual assault. - from Statute of Limitations 16 (1) h2

                                16 (1) There is no limitation period in respect of,

                                (h.2) a proceeding based on an assault if, at the time of the assault, the person with the claim was a minor or any of the following applied with respect to the relationship between the person with the claim and the person who committed the assault:

                                (i) they had an intimate relationship,

                                (ii) the person with the claim was financially, emotionally, physically or otherwise dependent on the other person;

                                Comment

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