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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
10-31-2017, 02:57 PM
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My Wild Custody Battle Round by Round - Input, suggestions, Ideas?
Hey guys/girls here is my story in as brief as I can share. Im a first time poster and really like this site. Im looking for your input and also thinking my story might help others.
Im a respondent father who is somewhat successful in the entertainment industry in Ontario. I've never been married, but have a three year old daughter. Essentially the mother got pregnant on purpose when I was dating her as I was interested in another woman at the time. I tried to make it work and lived with the mother for a few months around the birth but of course it didnt work. Here is what happened since then: ROUND 1 Loss for me -The mother played games and didnt let me see daughter after break up. She filed for sole custody. I was already paying child support voluntarily and continue to do so. From the beginning I have tried to mediate and the mother has rejected all attempts to mediate, all offers, never counter offered etc. My goal has always been joint custody, shared parenting which I believe is psychologically best for the child based on the research. I was unfamiliar with family court but have experience in civil court and consider myself very good at making logical arguments, not that it has always helped me in family court and because of cost I have represented myself. -I filed a motion based on access prior to Case Conference citing that the child was in danger because at the time the mother was living with her father who is an alcoholic, her mother an ex prostitute and two family member who lived in that house hold have committed suicide including a 14 year old girl last year by hanging herself in her bedroom. The motions judge wouldnt rule it an emergency but moved up the case conference date and told the mother she better start giving me access. -The mother was on social assistance at the time and got "wings" of a shady law firm via legal aid. I was offered supervised visitations for 3 days a week during the day. The mother moved to around 50 min drive from me so I had to drive in and back to see my daughter supervised for 4 months while the mother lived in the environment described above. Later she got more work and got her own appartment in a shady area. My family is all middle upper class with no criminal or addiction issues including my mother who has been a teacher her entire life. ROUND 2 Loss for me -At the cast conference the attorney made all kins of allegations of harassment and bullying. The judge was older white male who's opening question was if Im bipolar. Keep in mind that I'm a professional who has never been in trouble with the law. He was only going off their pleadings that were all made up concepts such as "imbalance of power" which i guess is code for Im a man even though my ex had total control of my daughter. This judge stated that Joint Custody was out of the question for me and all they focused on was the financial. The other side offered me some weak offer for access that was essentially 4 more months of supervised daytime access. I rejected that and only at the end of the Case Conference did the judge ask if there was any access in place.. then seemed kind of flustered to find out there wasn't and then stated that I could file a motion for it. ROUND 3 Win for me -I filled motion for overnights. By this time the mother's lawyers burned through so many hours that legal aid cut them off so they didnt show for the motion and my ex was on her own. The judge suggested we come to an agreement or hed make a decision. Only then was the mother agreeable and worked out your typical every other weekend and one day a week arrangement for accesses with provisions for holidays. I was happy just to get my daughter for overnights after several months. ROUND 4 Win for me -My ex hired a new attorney, with probably family money that suggested arbitration. We went back and forth on arbitrators and i had a lawyer who is for shared parenting advise me. Her attorney stopped responding and only later did I find out my ex ran out of money for this. My ex never communicated well and always secretive. In any case my ex started to travel more for work and realized the value of the free babysitting so asked me more and more to watch my daughter. I was thrilled. So over the past year I was being my daughter virtually 50% of the time and there were no legal issues. Meanwhile i met a women who is a professional with kids who lives near me and we've been in a great relationship for over a year and her and her kids got to know my daughter who is now three. She's really opened up and part of the family. ROUND 5 Win for me -My ex and I had a falling out because after weeks of me watching our daughter she denied me access on my weekend saying "I've seen her enough" I then told her that we had defacto shared parenting for the past year as a new status quo. This scared her to death as she figured she would be cut off child support and also all of the social services she is collecting. So she told me she's now just sticking to the original agreement. She filed for Settlement Conference for end of January. I filled a motion for interim shared parent. At this motion things went a lot different. First of all it was a female judge instead of male and I have heard that women often are harder on women than men. My ex is attractive blonde who is good at playing the victim well. This time my ex was self represented and she's not very logical. What she is good at is making up lies and accusations. Her insane reply included things like that she doesn't think I'm mentally stable, that I'm addicted to anti depressants (I got a letter from my doctor that I'm not even on anti depressants) and in court I asked the question, well if I'm all of these things, why did she ask me to watch our daughter as much as 50% of the time the past year? This is the first time a judge really heard me out and even my evidence on shared parenting. I got several things I was looking for including that my ex has to give me first right of refusal if she is working out of town. Expanded my access to thursday to Sunday every other weekend. Also my ex who was resistant to give flu shot and vaccines was forced to do them. She has all kinds of wacky ideas on vaccinations and denied giving me a copy of health card for months. I didnt get shared parenting as the judge said i lived too far away. But she did order that OCL get involved. So that's where we are at now. I still want shared parenting and joint custody. My ex refused to negotiate in any manner. Waiting to see if OCL gets involved. Which I'm a little worried about with some of the stories I've heard, and like I said my ex is good at mud slinging, not at arguments. I feel at trial that I can represent myself well, especially one on one against my ex, but I feel the system overall is corrupt. I mean look how hard I had to fight to even get overnights. So that's my story thus far. Let me know what you think and feel free to ask whatever. 
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#2
11-01-2017, 10:50 AM
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Personal question: As you have named yourself after shoes typically worn by those in the alternative music (metal/punk) scene can I assume you are a metal head? Not for any other reason that it would be cool if you were in 3 Inches of Blood... And if you are... send me a PM.  Quote:
http://www.ottawadivorce.com/forum/f...e-court-13291/ and... http://www.ottawadivorce.com/forum/f...ily-law-15139/ If you had legal counsel you would have been told that your matter is not a true emergency. Everything you presented is based on your own personal opinion of the situation. Also known as "opinion evidence". You are not a medical professional so your opinion evidence has little weight in the calculation of the probabilities for rule 24.(4) "Violence and Abuse". (Which is the Rule of the CLRA you were trying to leverage at that point in time.) This conduct can come back to haunt you in future motions. Distance yourself from the allegations made now. You may "feel" these things are "true" but, without evidence, you are just waxing poetic. You accidently put the onus on you to bring forward very solid evidence throughout your case. Every judge will know this matter started on a false emergency. How do I know it is false? Well, no incidents have occured based on the evidence you have provided in the past 3 years and since you filed the emergency. Your best argument is that it was anxiety related from not having access at that time. If you maintain the "abuse" allegations they will not get you to full joint custody and equal access at all. Quote:
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CCs and SCs are mediated... The judge who appeared at the SC and/or CC can never be a motion or trial judge in your matter. They are offer opinions... Lose ones at best. Some general advice: 1. Family law has no winners or losers. Everyone who goes to family court loses, unfortunately. What you are there to do is make sure your child doesn't lose more...  2. Avoid the OCL becoming involved in your matter at all costs. See: http://www.ottawadivorce.com/forum/f...azaratz-12452/ The OCL will NOT like you at all nor will any Section 30 evaluator based on how you present your arguments. 3. Be humble. Logic does matter but, you need to be humble. Perception matters. To quote Justice Pazaratz in a matter you quoted ("wings")... "Perception matters". 4. You are very logical. Yes. You mention how logical you are and how the other parent isn't. You seem to have everything figured out... This article is something for you to consider: http://www.highconflictinstitute.com...ople-negotiate 5. Be humble. You are a bit boastful in how you come across. It could set off a judge the wrong way. 6. Hire a lawyer. If you truly are successful then you should retain good counsel to assist you. Don't go it alone. Things can get done faster with a good lawyer. There are good ones in the GTA. Very good ones. 7. Stop mediating. A court can't order someone to mediation and a mediator can't order anything. Mediation in a matter like yours is a WASTE OF TIME. The only private option for you is arbitration or court. A court won't care how many times you asked someone to go to mediation. Furthermore, if you do land in mediation you can't use anything said or offered in your court matter. 8. You probably won't get what you want right away but, if you play your cards right and are humble and patient you can get closer every year. 9. Be patient. Things don't happen over night. As you have clearly read the "wings" matter... Which I am intimately familiar with... That is a 8 year running matter. It is different than yours in the fact that you are not the respondent father in that matter... nor is the mother in your matter the respondent mother. Don't think your matter is similar to it. It is vastly different than most. That case is important because it normalized some common things and put forward significant changes in those common things... But, the complexities are what resulted in the situation to date... not the commonly addressed stuff. Good Luck! Tayken
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#3
11-01-2017, 12:10 PM
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I do some across a certain way although I would say that the other side also has some disadvantages. She just makes random mud slinging which I easily disapprove. For example saying I'm addicted to anti depressants on got letter from doctor saying I'm not even on anti depressants. I learned a lot from your post. I don't mind my initial motion because it did get me access immediately whereas i would have rated to after a case conference which was a couple of months later, and even then was granted. So him telling her she had to give me access helped and also he moved up the case conference. I agree about no winners and never would have brought this to court if I could have avoided. I do come across as aggressive and probably arrogant because my ex literally just lies and does not make arguments. I do agree some judges would rub some ways.. I'm intelligent and free thinking.. analytical type and because of used to being on camera I am assertive on the stand. This has also helped me though as I've ben quick on my feet when allowed to talk. However depending on the judge i get cut off. I don't care about case conferences.. the only thing that has had an impact so far is the motions when I have been pretty successful at. If i hadn't filed them i wouldnt have gotten access, or overnights or expanded that access. How do I keep OCL out? I agree its not good and I also think i do better in a format where I can argue points as my ex only skill is to make up slander which in OCL she can do freely.. I filled out the paperwork.. I was told I couldnt say i didnt want them or in violation of judges order. there was a part if i agreed to them being in jurisdiction of case as i live 45 min away but I checked the box after pondering it. For the record I am the respondent father.
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#4
11-01-2017, 12:46 PM
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Have you considered moving closer to the child? That would alleviate what seems to be a major issue preventing 50-50, as well as any other jurisdictional issues. You would also want to ensure that you had a mobility clause in place to ensure that once you move back to the child's location, she could not up and move the child farther away and claim that it is too far for shared.
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#5
11-01-2017, 12:51 PM
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Would a mobility clause be something sought at motion? Or just final judgement?
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#6
11-01-2017, 01:08 PM
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Courts are small "c" conservative. So they will judge success by income on paper. Not by how many "likes" your Facebook page has, how many views your YouTube video has or how many people follow you on Instagram/Twitter. They will care about how much money you make and what is reported on line 150. Why is this important? They perceive (for good or for awesome) income as a measure of success and stability. (More importantly stability.) The counter-argument that you have unstable and unpredictable employment... therefore unpredictable access to the child... is coming. Quote:
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That aside... read this: http://www.ottawadivorce.com/forum/f...ase-law-16809/ Quote:
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Consider this view from a very wise judge: Quote:
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It is the hardest concept to grasp for everyone. You are cut off when your argument is irrelivant to the order being sought. Quote:
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You can and should have opposed the order for the OCL to get involved. I provided a link to the counter against OCL involvement. The only time they really should be involved is if there is a true clinical concern. The only way OCL could have gotten involved is if on motion they requested it and you failed to counter their request. The other way is that you consented to it at a case conference or settlement conference out of fear. This is where a LAWYER would have been a good idea. I would give the OCL very little information and recommend you simply write up a full parenting plan (35.1) and simply present that to them. Don't say much about the other parent or that they are bad at anything. When they question you about it... The response should be: "Isn't that what you are investigating here and providing recommendations to the court for?" Now that OCL is involved you REALLY should consider retaining a lawyer. Stuff is gonna get ugly. Good Luck! Tayken
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#7
11-01-2017, 02:53 PM
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Of course i suspect that my ex was on welfare when she filed and also self employed wont be given the same level of "instability" lol
As I said my ex makes weird accusations, she also said I was mentally unstable yet at the same time has asked me to watch our daughter up to 50% of the time the past year.. So when she brought all this up I stated "it begs the question if I am a drug addict who is mentally unstable, what is wrong with her judgment that for the last year she's asked me to watch our daughter."? The judge put in order for OCL on my motion for interim along with the youtube thing. It wasn't motioned for by the other side nor did they even know about it. As far as lawyers as someone who has done a lot of civili litigation in US and canada.. I agree lawyers know better.. one thing though is I can't tell you have many times lawyers lack balls and are afraid to go against judges because they will appear before them many times. Nor do they know what we know about case. For example I had the swedish study in my filings with regards to shared parenting. The judge said the study said that it only says its best for the child to live in two homes and not joint custody as a term. I then quickly retorted.. would you consider 4 days every other week as living at my home? The judge thought and said, "no i guess not. " Why do you suggest say nothing to OCL?
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#8
11-01-2017, 05:15 PM
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So, you both will eventually have to file Form 13 Financial Statements and disclose your last 3 years worth of tax information. Its required as part of the Family Law Rules if someone is making a claim for Child Support! The evidence is for her to provide... Not for you to present. Simply ask for the disclosure in accordance with Rule 13 of the Family Law Rules for determining Section 7. It will come in an affidavit sworn to the truth. No need to "nah na na na naaaaaah your on welfair... i've got some ice cream" it in court. Quote:
Just because someone swears something "to the truth" in an affidavit doesn't make it "the truth". So, make her bring real evidence that isn't personal opinion, feelings or beliefs. Quote:
Brown v. Elliott, 2017 ONSC 180 (CanLII) Date: 2017-09-14 Docket: FS 15-264 BRT Citation: Brown v. Elliott, 2017 ONSC 180 (CanLII), http://canlii.ca/t/h5xjt It basically outlines how you should handle the matter. Quote:
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Don't go in thinking you need to educate judges. You don't. Especially if you live in the Peel, Hamilton, Toronto, Halton, St. Catherines, or Dufferin areas of Ontario. Some of the most senior family law judges reside in those jurisdictions. They are way more educated on family law than you think. Do the research for yourself... Not for the judge. You will only anger them. Quote:
If you are truly going for 50-50 then the other parent is equal to you... So throwing them under the bus gains you nothing. As well, the OCL may say you are the issue in the conflict. GIVE THEM NO REASON TO DO THIS. Be a wide eyed loving parent who just wants to parent and has no concerns about the other parent. Your only concern is that the access is equal and the custody is joint. Good Luck! Tayken Last edited by Tayken; 11-01-2017 at 05:58 PM.
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#9
11-01-2017, 05:35 PM
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Actually the judge said she had never heard of the study before and found it interesting. It was in Time magazine and sample size of 150,000. Im learning as I go so believe you that this would be considered something that can't be cross examined.. just relating to you how the judge responded.
I generally have not put down my ex other than saying that she is lying about her statements. As far as that goes though with one judge at case conference I said only good things about the mother while she slandered me with made up accusations. The opening question from the judge to me, based on her accusations was "are you bipolar?" and he was serious. So in that case it didn't work in my favour to be the moderate.. lol Sound advice..
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#10
11-01-2017, 06:01 PM
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Try to stick to yes/no answers and be as brief as possible when responding to a judge or the other side. Good Luck! Tayken
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| custody, first right of refusal, joint custody, shared parenting |
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