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Old 12-23-2006, 01:22 PM
tycooke tycooke is offline
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Smile Going to trial

In a custody/access case when a trial date is set what can be expected? The OCL Social Worker has just completed her report for judge to view also. Trial will be our final step in this very long case.

Old 12-24-2006, 12:59 AM
logicalvelocity logicalvelocity is offline
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Have you had your settlement conference or trial management conference as of yet?

If the matter goes to trial, the court will be observing ones demeanor, (Body language facial expressions, tone of voice etc. I suspect witness's would be called by each party.

If you require some form of relief before trial, you could bring forth same on motion. Example: If the trial is delayed through no fault of either party, you could also bring forth an interim motion for interim relief - see Schmidt v. Haley, 2004 CanLII 34344 (ON S.C.), or if a procedural issue is in question, one could also bring forth a motion to determine same. see Stefureak v. Chambers where the court dealt with a number of procedural issues mid trial on motion.

Something that may be of interest to you is the motion to amend pleadings on the grounds that the ramifications of a recent Judgment of the Ontario Court of Appeal on the issue of Joint Custody. Stefureak v. Chambers (No. 3), 2005 CanLII 16090 (ON S.C.) See Paragraph 9 of same

The motion for the amendment is supported by an affidavit of the father. In it, he deposes that his motion is “not being made frivolously or to gain a tactical advantage [in the] trial.” He says that “the applicant has become increasingly controlling in respect of custody and access despite the existing joint custodial order” and he goes on to give details that, for brevity, I will not repeat. The father further deposes as follows: [1]

. . . my counsel and I have discussed the ramifications of the very recent decision in the Court of Appeal of Ontario dealing with the issue of joint custody. . . . I understand that the courts may be more reluctant in the future to impose a co-parenting regime if there is not a demonstrated ability of the parents to communicate and work together in the child’s best interests.

The Court of Appeal decision that the father had in mind is Kaplanis v. Kaplanis 2005 CanLII 1625 (ON C.A.), (2005), 194 O.A.C. 106, 10 R.F.L. (6th) 373, [2005] O.J. No. 275, 2005 Cars*well*Ont 266, where, at paragraph [2], Appeals Justice Karen M. Weiler, writing for the court said:

. . . the order for joint custody should be set aside on the grounds that the trial judge erred in principle in awarding joint custody (a) where there was no evidence of historical co-operation and appropriate communication between the parents, and (b) in the hope that it would improve the parenting skills of the parties.

and another motion to deal with this procedural issue

admissibility of child’s out-of-court statements: Stefureak v. Chambers 2004 CanLII 34521 (ON S.C.), (2005), 6 R.F.L. (6th) 212, 2004 CanLII 34521, [2004] O.J. No. 4253, [2004] O.T.C. 922, 2004 Cars*well*Ont 4244 (Ont. Fam. Ct.), per Justice Joseph W. Quinn;


dismissal of motion for security for costs: Stefureak v. Chambers (No. 2), 2005 CanLII 7890 (ON S.C.), 2005 CanLII 7890, [2005] O.J. No. 1086, 2005 Cars*well*Ont 1076 (Ont. Fam. Ct.), per Justice Joseph W. Quinn;

Lastly, the issue of - Is the court entitled to call a witness in a custody proceeding?


Last edited by logicalvelocity; 12-24-2006 at 01:02 AM.
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