Technicality and Office of the Children's Lawyer

[baldclub]

First Contact

So yesterday evening I finally met the lawyer representing the children, at my place. We didn't share some of the usual pleasantries such as shaking hands or small talk.

As soon as she sat down she was all business, I hadn't even sat down yet. Funny, I did ask her for her permission to record our conversation. She told me she would rather not as she wanted to just ask some questions and nothing was confidential. I said that was fine, I had nothing to hide so I saw no reason not to record the conversation. She again repeated she would rather not. I told her I have been very flustered with the whole process, from court to CAS to FRO and the rest. I said I would just continue to take detailed notes and move on.

She said the kids wishes are not the determining factor in her report but the 'children's best interests'. I told her I understood that.

I would say the conversation went in this order:

1. History of the relationship with my ex, where we lived, where I worked/studied
2. Current relationship and her two girls, how they all get along with my kids
3. How we communicate, my ex and I; my 'relationship' with her partner
3. Description of the kids, activities
4. Scheduling, where kids go, how they get to and from school
5. Police involvement, permission to obtain police reports
6. CAS involvement

She explained again the process of how she would meet my ex today, then meet the kids over the following weeks about three times. She encouraged me to tell the kids to expect meeting with her, that she was their lawyer, but that was about it.

As our talk was winding down, she asked me if I thought my ex had problems with drugs or alcohol. I said no. Then she asked me if I thought my ex suffered from mental illness. I stared right at her.... stared some more.... she stared back.... I stared....then I think both of us broke into a smile and we carried on, hahaha.

In closing, I brought to her attention two things that struck me the most and I'll share with you my corresponding feelings:

1. I was surprised that we didn't focus on some of the nitty gritty, negative experiences that really have stalled any chance of coparenting responsibly. I told her I had prepared some examples of major problems. What I really had was about 64 pages worth of documents surrounding nine key examples of what I call 'HAP (hostile aggressive parenting) even. Inside I was elated that we focused on some facts but didn't get into the dirty laundry, not because I have anything to fear but because I am sooooo tired of it. Yet I am still humming and hawwing about whether I should send the document with emails, I just know my ex will go wild with accusations and crap.

2. I told her I was suprised we didn't look at parenting arrangements in depth, if at all actually. She said she mostly listens to the kids and reports back to the court, the judge looks at that kind of thing. Again I was mixed in my feelings about this, glad the focus was about the relationship the kids have with the parents, but worried again about more games from my ex in this area.

I feel great finally having the OCL involved, I feel soooo bad for the crap my kids have been through. I know I haven't been always perfect but I believe my choices have followed a difficult but 'ethical' path overall.

Finally, the lawyer will have my ex and myself together to see how we can hammer things out based on some of her findings. Honestly, I anxiously look forward to the day when finally someone sits us both down, with nowhere to go, and we can get on with the duty of coparenting.

[baldclub]

I think you should read the following decision which is linked to WorkingDad's matter with regards to the OCL:

CanLII - 2011 ONSC 6451 (CanLII)

Tayken, I have read WorkingDad's case and referenced the ones his judge put in his order, that stuff is gold!! So much reading but so complex as are most of our own cases. I will be asking for joint custody within a parallel parenting plan, and if not sole custody if the judge sees fit based on the evidence that my ex has gone to criminal lengths to deny the children the right of their biological father and she is not be able to act within a joint framework.

Such is this beautiful system of ours, I will have a settlement conference late September a year after the judge 'ordered' the involvement of the Office of the Children's Lawyer. The OCL will be there to brief the court but two things to note:

1. We are getting debriefed an hour before court.

2. We are to get something written to us after she meets one more time with children.

The mother has exhibited serious examples of Hostile Agressive Parenting, called the police on several occasions. Unfortunately, she's playing the card to the end, saying she doesn't want to meet in a three way meeting with the OCL and myself.

However, I feel she has drawn this out so much now that it will be actually detrimental to her case. Emails and her own words are my best asset. Correction: those cases you Takyen, and WorkingDad and others have talked about are my most important tools in an unfortunate parental struggle that has passed the 3 years mark.

[Tayken]

Correction: those cases you Takyen, and WorkingDad and others have talked about are my most important tools in an unfortunate parental struggle that has passed the 3 years mark.

Glad to see that rationality and being reasonable are working in your favour and that "emotional reasoning" and allegations are not for the other party making them. I recently posted new case law regarding Section 30 evaluations, when they are appropriate and when they are not.

It may be of some value to you:

http://www.ottawadivorce.com/forum/f...azaratz-12452/

Good Luck!
Tayken

PS: Thanks for the update on progress. It is of tremendous value to all parents going through what you are experiencing. Hopefully matters will settle rather than go to trial.

[baldclub]

Read that already too Tayken, thanks. It's wild that I have to fight just to get even footing, but I feel more confident with these actual cases.

What is kind of sad is that although I've been preparing a lot of documentation over the last little while in useless attempts to settle some issues, I saw today some very vile accusations from my ex that somehow my mind had put aside to focus on life and new and more positive relationships. Looks like I have a lot of work to do!

I'm hoping to show up with just facts and mostly a solid parenting plan. I tried that with the OCL and I'm not sure how it will play out.

[Tayken]

I'm hoping to show up with just facts and mostly a solid parenting plan. I tried that with the OCL and I'm not sure how it will play out.

Hopefully more "objective" than "subjective" facts... Cases built on hearsay often over time crumble on the lies that are often contained in the "subjective" arguments being made.

[baldclub]

Yeah, you are right. However, I've been backing up my statements with her emails, her notes written in kids' school agendas that I photocopied, her statements in court docs...

That is what is so infuriating about this process, she has accused me of various misdeeds to put it lightly but never, ever has there been any proof. Prosecution didn't want to go to trial over her allegations last year but I'm still stuck with a lawyer's bill. I finally got a place last year in town so my kids could get to school easily from my place, I wrote my ex a really positive and constructive email to announce my efforts and to co-parent. The day of my move I got a call from the local police that I was getting charged. She alleged assault from two years prior, didn't take a genius to figure out what was going on but yeah, it was the lowest I had ever experienced from her.

I just erased a few paragraphs I just wrote, because 1) it's too stressful and 2) I know Tayken you're always promoting facts, level-headedness and to arm ourselves with case studies not anger.

I'll repeat the "objective" mantra in my head while preparing my case Tayken. I just hope someone will at least listen to what I have to say come court day.

[baldclub]

Wrote this long post, a lot of it redundant to the above, more out of frustration but just looking for comments on people's experiences in dealing with OCL even before the report.


I read the CANLII referenced here http://www.ottawadivorce.com/forum/f...n-stage-12974/ and it's written very clearly. However, if I read correctly, a decision was still made on a temporary basis, although not on consent.

So, right now I understand much more on how to deal with an OCL report that may be contrary to the facts as I (and others) have experienced directly, as WorkingDad has shown us. I understand that the assessor's conclusions still need to be thoroughly examined at trial, although potentially will suffice to put forth a temporary order.

What I don't get is how to deal with the Office of the Children's Lawyer before such report.

What I was told by OCL:

1. Interview with each parent
2. Meeting with kids, at least three times
3. Three-way meeting with the OCL, my ex and myself, where the OCL summarizes her findings.
4. A report given to court by OCL.

What I experienced:

1. Excessive wait time for such a report, well around 8 months after meeting the children for the final time.

2. A broad lack of communication from the OCL: questions go unanswered and concerns about the children are ignored. How come the OCL doesn't communicate when issues are brought up?

It is like my experience of CAS: my duty as a parent is to inform CAS of what the children have told me, then it is the CAS' duty to investigate (although as a parent I have already made up my mind to the gravity of the situation). I am well aware of the potential for various accusations by some, but I'm a big boy, when my children talk to me I need listen carefully trying to understand what is being said. It’s really not an ethical dilemma, because it is the right thing to do, unequivocally.

Same thing with the OCL: “Hey, my 12 year old daughter is really, really distraught, it is important for you to talk to her I feel.” I think the OCL could understand from the children what their very issues are, in their best interest, because there's a good chance they won't open up to you when you drop by the school, focused as they are on their friends, classwork and such. If you think it's a game on my part, go ahead and state it in your report. If not, record what you've been told and decide how it fits in your recommendation. But talk to them. Or at least tell me, a concerned parent, something so I know what is going on.


And I am troubled by no response from the OCL about my concerns of wild accusations from my ex directly to the OCL. I told the lawyer I was able to refute, if she wanted me to do so, every accusation with facts. I told her I took the allegations very seriously as a father and someone with a security clearance. I got no response at all from her, I would have been happy with a “yes, please tell me your side of the story” or “no, that won’t be necessary”. Anything.

The latest from the OCL now is: she will only address us one hour before the settlement conference. So I ask: “no more meeting among the three parties like you said?” I’m confused but no answer still.

I understand this: it’s a difficult job for the OCL, just as it must be for CAS. But it is for police officers, nurses, teachers and many, many more professions/trades. But hey, professionalism requires someone in a position of trust dealing with the public to at least engage the public’s concerns, in this case primarily the children’s needs but also the parents’ requests for some information and/or assistance. If everyone could just do their part to facilitate the process by communicating better I would be happy.

So now, here I am: a few weeks from going to a settlement conference, not too concerned with what the OCL has to say in general terms because I believe I am a very good parent and have strived to do the best I can to remain in their lives regardless of the incredible difficulties of the process. Yes, I know I’ve screwed up at times and I do believe my ex has been in the past a fantastic role model as a mother before separation. I still don’t hate her after all the evil I’ve experienced and I would wish to work with her in co-parenting, although I know that will never happen until a court order. I know I am destined for more aggravations in the future.

[kidsRworthit]

^Wow BC, I have been reading your posts, and empathisize wholeheartedly with you. Truth be known, I have many similarities to your situation. I haven't seen any more posts, and hope your settlement conference was productive.

I am entering my case conference (next week) and have been spending an immense amount of time preparing/defending myself from many inaccurate/baseless subjective claims from my ex. She wants sole custody and sole decision making of our two children, from the status quo of shared parenting and joint decision making. (14 months).

Ex moved away from kids' rooted community in August, and is forum shopping with hockey (in her community) as the bait for our son. Many people close to our situation see her selfish agenda from the get go. Certainly not in the childrens' best interests to disrupt the status quo to accommodate the parent who has moved. (unless there are evident clinical issues and changing status quo would clearly benefit the kids)

Similar to yourself, she has made life difficult and is painting me to be the bad guy. (after 11 years of proving I'm a nurturing father...) She has asked me to share cost of private assessment which is unnecessary: no clinical issues exist (and I am unable to afford). Thanks to Tayken, Mess, WorkingDad, yourself and others for your insightful words and vital cites!

I have to focus on proposing decision making negotiations: specifically a. extracurricular (hockey), b. education, c. religion, and d. medical/dental.
My ex is a High Conflict Parent to a tee. She is cemented in her positions and refuses to budge. She is willing to go to the mat, even though we all know nobody wins in Family Court litigation.

I have proposed a Court Appointed Mediator in the CC brief in hopes my ex will come to the table and bargain in good faith. I've read of coaching being offered by CAM, and am hopeful this avenue exists. Any encouragement to address the issues, so we can move forward for our kids' sake. Tough dealing with a HCP, and it is certainly a marathon; as the kids will always be part of our our lives.

Important to tolerate and "manage" immature behaviour of HCP and stay focused on where process is going and best interests of kids. I agree its' not easy, but the effort is worth it when we consider who we're fighting for.
I'm trying to adopt the work addage... Fight smarter...not harder

[baldclub]

^Wow BC, I have been reading your posts, and empathisize wholeheartedly with you. Truth be known, I have many similarities to your situation. I haven't seen any more posts, and hope your settlement conference was productive.

I am entering my case conference (next week) and have been spending an immense amount of time preparing/defending myself from many inaccurate/baseless subjective claims from my ex. She wants sole custody and sole decision making of our two children, from the status quo of shared parenting and joint decision making. (14 months).

Ex moved away from kids' rooted community in August, and is forum shopping with hockey (in her community) as the bait for our son. Many people close to our situation see her selfish agenda from the get go. Certainly not in the childrens' best interests to disrupt the status quo to accommodate the parent who has moved. (unless there are evident clinical issues and changing status quo would clearly benefit the kids)

Similar to yourself, she has made life difficult and is painting me to be the bad guy. (after 11 years of proving I'm a nurturing father...) She has asked me to share cost of private assessment which is unnecessary: no clinical issues exist (and I am unable to afford). Thanks to Tayken, Mess, WorkingDad, yourself and others for your insightful words and vital cites!

I have to focus on proposing decision making negotiations: specifically a. extracurricular (hockey), b. education, c. religion, and d. medical/dental.
My ex is a High Conflict Parent to a tee. She is cemented in her positions and refuses to budge. She is willing to go to the mat, even though we all know nobody wins in Family Court litigation.

I have proposed a Court Appointed Mediator in the CC brief in hopes my ex will come to the table and bargain in good faith. I've read of coaching being offered by CAM, and am hopeful this avenue exists. Any encouragement to address the issues, so we can move forward for our kids' sake. Tough dealing with a HCP, and it is certainly a marathon; as the kids will always be part of our our lives.

Important to tolerate and "manage" immature behaviour of HCP and stay focused on where process is going and best interests of kids. I agree its' not easy, but the effort is worth it when we consider who we're fighting for.
I'm trying to adopt the work addage... Fight smarter...not harder

Thanks bthom for your kind words, above all else persevere my friend. Take every opportunity to read and reread all the relevant case law from CanLII, that is how you learn to be smarter and more effective in family court. Focus on the best interest of the kids in court and out!

[baldclub]

Coincidental to bthom's post, I have some news on the OCL front.

The settlement conference is booked for 21 December, my offer to settle includes the separation agreement proposal I posted on this website. Unfortunately delayed by allegations of domestic abuse that I successfully fought, self-represented, in court last week.

Latest exchange with OCL:

Hi Sylvia,

I am still confused by the meeting directly before the settlement conference. The endorsement by Justice James states:

"Either party may arrange for the continuation of the S/C after the OCL report available by requesting a date from the T/C."

So, why are we meeting only an hour before the settlement conference? Is there no report?

Thanks for clarifying this.

Her answer:

i will not be providing a written report but i would like to meet with both of you to discuss the views and preferences of the children and the position i will take should the matter proceed to trial. there is only a report when a clinical investigator alone is appointed from the ocl (as opposed to a lawyer alone - as in this case).

[Tayken]

Coincidental to bthom's post, I have some news on the OCL front.

The settlement conference is booked for 21 December, my offer to settle includes the separation agreement proposal I posted on this website. Unfortunately delayed by allegations of domestic abuse that I successfully fought, self-represented, in court last week.

Congratulations. What was the final Ruling in the matter? Hopefully it was clearly stated as "not guilty".

Latest exchange with OCL:

Hi ******,

I am still confused by the meeting directly before the settlement conference. The endorsement by Justice James states:

"Either party may arrange for the continuation of the S/C after the OCL report available by requesting a date from the T/C."

So, why are we meeting only an hour before the settlement conference? Is there no report?

Thanks for clarifying this.

Her answer:

i will not be providing a written report but i would like to meet with both of you to discuss the views and preferences of the children and the position i will take should the matter proceed to trial. there is only a report when a clinical investigator alone is appointed from the ocl (as opposed to a lawyer alone - as in this case).

I am too confused by the statements made by the OCL worker as their report is being prepared under section 112 of the Courts of Justice Act:

Investigation and report of Children's Lawyer

112.--(1) In a proceeding under the Divorce Act (Canada) or the Children's Law Reform Act in which a question concerning custody of or access to a child is before the court, the Children's Lawyer may cause an investigation to be made and may report and make recommendations to the court on all matters concerning custody of or access to the child and the child's support and education. R.S.O. 1990, c.C.43, s.112 (1); 1994, c.27, s. 43 (2).

Idem
(2) The Children's Lawyer may act under subsection (1) on his or her own initiative, at the request of a court or at therequest of any person. R.S.O. 1990, c. C.43, s. 112 (1,2);1994, c. 27, s. 43 (2).

Report as evidence
(3) An affidavit of the person making the investigation, verifying the report as to facts that are within the person's knowledge and setting out the source of the person's information and belief as to other facts, with the report attached as an exhibit thereto, shall be served on the parties and filed and on being filed shall form part of the evidence at the hearing of the proceeding. R.S.O. 1990, c. C.43, s. 112 (3).

Attendance on report
(4) Where a party to the proceeding disputes the facts set out in the report, the Children's Lawyer shall if directed by the court, and may when not so directed, attend the hearing on behalf of the child and cause the person who made the investigation to attend as a witness. R.S.O. 1990, c. C.43, s.112 (4); 1994, c. 27, s. 43 (2).

So to give "evidence" to the court the person in question has to either file a Report in accordance with 112 or an Affidavit.

Remember, that the only people allowed to be present at a Conference (SC, TMC, CC, et all!) are the parties to the litigation, their solicitors and the judge. You can (and should) have all other non-parties removed.

This is in accordance with Rule 17.(15) and 17.(23) of the Family Law Rules. Now, I am not sure how this would apply to the Children's Lawyer as they are ordered by the court and may be able to be present at the Conference under those Rules as the children are a party to the case and have legal representation from the OCL.

But, really, at a Conference, what the OCL says if not committed to either a report or affidavit per 112 of the CoJA is really, in my honest opinion (personal) inappropriate.

Good Luck!
Tayken

[Mess]

^ Agree with Tayken, but also to add, the reason for these rules is so that a party, or even both parties, don't get blindsided at a trial by verbal reports or testimony with no opportunity to scrutinize beforehand or properly refute.

Is this person acting specificly as a lawyer representing the child in this situation? If so, they may have standing at the conference. However they should not be offering analysis of the parent's childrearing abilities, but simply quoting the child's wishes as spoken in a neutral setting to a neutral individual.

If I read baldclub's description properly, this is not a social worker doing a parenting assessment or assessment of the child's needs, but a lawyer representing the child. There should be a clear disclosure of what the intent of this process is, how the child's needs are being assessed, by what standard, with what training, and with what limitations.

I'm not clear what the protocol is but if this is a lawyer acting as the children's representative, they should also be submitting a conference brief.

[Tayken]

^ Agree with Tayken, but also to add, the reason for these rules is so that a party, or even both parties, don't get blindsided at a trial by verbal reports or testimony with no opportunity to scrutinize beforehand or properly refute.

Is this person acting specificly as a lawyer representing the child in this situation? If so, they may have standing at the conference. However they should not be offering analysis of the parent's childrearing abilities, but simply quoting the child's wishes as spoken in a neutral setting to a neutral individual.

If I read baldclub's description properly, this is not a social worker doing a parenting assessment or assessment of the child's needs, but a lawyer representing the child. There should be a clear disclosure of what the intent of this process is, how the child's needs are being assessed, by what standard, with what training, and with what limitations.

I'm not clear what the protocol is but if this is a lawyer acting as the children's representative, they should also be submitting a conference brief.

An excellent point. If they are representing a party to the matter they should be submitting a brief in accordance with the Rules.

[baldclub]

So, from the Ministry of the Attorney General's website at this link: More About What We Do - Ministry of the Attorney General

In Brief
The Office of the Children's Lawyer is a law office in the Ministry of the Attorney General which delivers programs in the administration of justice on behalf of children with respect to their personal and property rights.

Lawyers within the office represent children in various areas of law including child custody and access disputes, child protection proceedings and civil litigation.

Clinical investigators prepare reports for the court in custody/access proceedings and may assist lawyers who are representing children in such matters.

It continues to say:

Child Custody and Access Cases
Court proceedings about child custody and access are usually between the child's mother and father. In most cases, the parents have lawyers who represent them in the case. Where there is a dispute before the court about the child's custody or access, a court may request the appointment of the Children's Lawyer under the Courts of Justice Act. This happens when the court requires independent information and representation about the interests, needs and wishes of the child who is the subject of the proceedings.

The Children's Lawyer's involvement in custody/access cases is to provide a legal representative (a lawyer) for the child or to prepare a report, or a combination of both.

Furthermore, and this may be exactly the crux of their level of involvement:

The types of professional services that may be delivered are:

1. Legal Representation - A Lawyer will be assigned.

2. Children's Lawyer Report - A clinical investigator will be assigned.

3. Legal Representation with a Clinical Investigator Assist

1. Both a lawyer and clinical investigator will be assigned at the beginning if there are serious clinical and legal issues requiring an expeditious response, e.g. murder/suicide, mobility, etc., or,

2. After the case has been assigned to the lawyer, a clinical investigator will be assigned if there are specific serious clinical concerns that need to be addressed in order to assist the lawyer in representing the interests of the child client at any settlement meeting or in court.

4. "Summary" Legal Representation or Children's Lawyer Report

The lawyer or clinical investigator will be instructed to deliver, in a summary way, a time limited service and to report to the parties and the court either by way of submissions (lawyer) or by a short Report (social worker) about what, if anything, has been accomplished to advance the interests of the child client towards a resolution or court order.

5. Lawyer Assisting Clinical Investigator

A lawyer will be assigned to assist a clinical investigator who is preparing an OCL Report when the social worker needs legal advice and guidance in special circumstances, e.g. evidence, interpretation of documentation, legal procedures, etc. Please note that the lawyer will not be the legal representative of the child under s.89(3.1) of the Courts of Justice Act.


NOTE: Except in special circumstances, legal representation and a Children's Lawyer report of the OCL will NOT be provided simultaneously.

[baldclub]

^ Agree with Tayken, but also to add, the reason for these rules is so that a party, or even both parties, don't get blindsided at a trial by verbal reports or testimony with no opportunity to scrutinize beforehand or properly refute.

Is this person acting specificly as a lawyer representing the child in this situation? If so, they may have standing at the conference. However they should not be offering analysis of the parent's childrearing abilities, but simply quoting the child's wishes as spoken in a neutral setting to a neutral individual.

If I read baldclub's description properly, this is not a social worker doing a parenting assessment or assessment of the child's needs, but a lawyer representing the child. There should be a clear disclosure of what the intent of this process is, how the child's needs are being assessed, by what standard, with what training, and with what limitations.

I'm not clear what the protocol is but if this is a lawyer acting as the children's representative, they should also be submitting a conference brief.

She's a lawyer and there has been no clinical investigator at any point. The lawyer stated verbally to me that we were to meet with my ex for a disclosure meeting but now it seems she wants that to take place on hour before we go into our settlement conference:

please note that i do not provide a written report but i will be having a disclosure/settlement meeting involving yourself and ms. .... when i am ready.

When I asked her:

"Yes,I understood that from our encounter. Do you not provide the court with a report too?", she replied:

yes. i will attend at court and orally present my position.

Elsewhere she stated:

i will meet with the children once more before holding a disclosure meeting (or advising both of you in writing as to my position if a meeting is not suitable) so that both of you will know what i will be telling the judge at the court settlement conference.

Personally, I think disclosure well in advance would allow better preparation of an offer to settle. It could very well lead to less conflict in positions taken. It could well have the adverse effect I guess, new posturing. It's all a bit complicated.

Another thought: by last minute disclosure, maybe the OCL intends to relieve any pressure of parents on the children to change their minds ... but that boat has long sailed away, and my ex was definitely on it.

I think in all of this, I don't really see why she needs to attend the settlement conference when it us the parents who should be demonstrating our parenting plans and showing our willingness to settle.