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Custody to Father: a fair decision by Ontario judge

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  • Custody to Father: a fair decision by Ontario judge

    I am impressed by the reasoning of judge A.W.J. Sullivan of the Ontario Provincial Court. Father presented solid evidence of mother's impairment to parent in light of her proclivity to obtain prescription drugs illegally among other things. Note the judge's thoughtful rationale for his decision. Excellent summary.

    A good read:

    http://www.canlii.org/en/on/oncj/doc...16oncj201.html

  • #2
    I read part of this judgement :

    @ottawa_dad: I think you should read all this judgement - highlight the parts where the judge talks about the factors to consider when making custody decisions and make sure you answer them in your hearing 1 - 1 responses virtually.

    Also, he mentions what the value of an OCL judgment is and case law for that,

    Comment


    • #3
      Paragraph 221 is the briefest summary of what factors were determinative but I agree that the whole decision is worth reading.


      Links, I recognize the importance of statements by Ottawa-dad that correlate 1:1 with what was determinative in this decision, assuming that the facts are similar. That being the case, how would you recommend Ottawa-dad do it so the court can't miss it?


      Here's what I think- just throwing it out- please let me know what you think:

      -state the parallels between your own facts and a previous decision, in closing argument and possibly in opening argument if you're sure those facts are going to come out in the evidence
      -in evidence: word sworn statements about similar facts in a way that make them sound unmistakably like the facts found in the previous decision


      Question: Is a litigant allowed, during sworn testimony, to note the parallels between their testimony and previous decisions? Ie: "My experience was like that described by the court in..."

      Comment


      • #4
        The way I would approach it is this way:

        • What does the parent know about child development and is there evidence indicating what is suggested to be known has been or will be put into practice?
        • Is there a good temperamental match between the child and the parent?
        • Can the parent set boundaries for the child and does the child accept those restrictions without the need for the parent to resort to harsh discipline?
        • Does the child respond to the parent's attempt to comfort or guide the child when the child is unhappy, hurt, lonely, anxious, or afraid?
        • Is the parent empathetic toward the child? Does the parent enjoy and understand the child as an individual or is the parent primarily seeking gratification for his or her own personal needs?
        • Can the parent examine the proposed parenting plan through the child's eyes and reflect what aspects of that plan may cause problems for, or be resisted by, the child?
        • Has the parent made changes in his or her life or behavior to meet the child's needs, or is he or she prepared to do so for the welfare of the child?
        This judge used this set of criteria/question to determine what the "best interests" are.

        Point 1:
        • What does the parent know about child development and is there evidence indicating what is suggested to be known has been or will be put into practice?
        My Testimony:
        General Statement
        Your honour I have been part of our child's life since birth and I taking raising our children very seriously, I consult experts or others when necessary and I'm always finding the best way forward for our child.

        Evidence/Examples (give 2 specific examples / topic):
        1. Last week ryan was sick, and I kept him from school gave him lots of fluids and him rest a couple of day and was better.

        2. On another occasion ryan was having an issue with a peer at school, I spoke to him about it and we decided he should speak to the peer and if that didn't work then speak to the teacher


        Cross-Examination
        So do you think I am able to care for the children and take care of them?
        If NO - well then why did you leave them with me for X, Y, Z time, aren't you worried?
        What about when we were married

        If Yes - ok perfect.


        Closing Arguments:

        Considering the criteria put forward by C. (J.R.) v. C. (S.J.), 2010 CarswellNS 126 (N.S. S.C.) it is clear that shared custody is the right solution.

        Firstly, I am fully capable of meeting my child's developmental needs as I have testified in regards to illnesses and school relationshop and the plaintiff's testimony indicated.
        etc....


        ______

        You basically rinse and repeat with every single criteria,
        Your Testimony
        -General Statement
        -2 Examples with some documentary evidence if possible

        Cross-Examine: They either agree and you're good, they disagree and you bring some event or history which contradicts what they are saying

        Closing Arguement:
        Give the judgement/case law you used as the general criteria
        -touch on your points (reminder),
        -touch on the fact she agreed or was contradictory

        Comment


        • #5
          Question: Is a litigant allowed, during sworn testimony, to note the parallels between their testimony and previous decisions? Ie: "My experience was like that described by the court in..."
          In quebec this is done in closing arguments

          Comment


          • #6
            Originally posted by arabian View Post
            I am impressed by the reasoning of judge A.W.J. Sullivan of the Ontario Provincial Court. Father presented solid evidence of mother's impairment to parent in light of her proclivity to obtain prescription drugs illegally among other things. Note the judge's thoughtful rationale for his decision. Excellent summary.

            A good read:

            http://www.canlii.org/en/on/oncj/doc...16oncj201.html
            Thanks for posting that. Really interesting.

            Comment


            • #7
              Thanks Links- that makes sense and is very helpful.

              Comment


              • #8
                I was excited by the title of this thread. A case between two competent parents where the father was granted custody? That would be exceptional!

                The reality is that the mother was a verified drug addict, one of the very few ways for a mother to lose custody. Nothing special here at all. The biggest surprise is that it took 220 or so paragraphs for the judge to give custody to the father, it was a pretty open and shut case.

                Edit to add: Also I noted that there was no CS order for the mom, and that the Dad is paying 100% of the private school expense, with no order for proportionate sharing. This is hardly a win.

                Comment


                • #9
                  Originally posted by Janus View Post
                  I was excited by the title of this thread. A case between two competent parents where the father was granted custody? That would be exceptional!

                  The reality is that the mother was a verified drug addict, one of the very few ways for a mother to lose custody. Nothing special here at all. The biggest surprise is that it took 220 or so paragraphs for the judge to give custody to the father, it was a pretty open and shut case.

                  Edit to add: Also I noted that there was no CS order for the mom, and that the Dad is paying 100% of the private school expense, with no order for proportionate sharing. This is hardly a win.
                  Perhaps you missed a few things when reading:


                  1. Father specified he wanted to pay tuition (if he was not having to pay CS).

                  2. "The Applicant shall advise the Respondent immediately if she obtains employment or receives any other income so that the amount of monthly child support payable by her can be determined..." The mother is currently in receipt of ODSP.

                  3. Child no longer has to commune 63 km 2 x daily for school.

                  I found the decision to be excellent in that the mother was not "torn apart" for her drug addiction, rather the judge made the decision in a logical manner. I'm sure the father feels that this decision is most definitely "a win" for his child.

                  Comment


                  • #10
                    Originally posted by arabian View Post
                    Perhaps you missed a few things when reading:
                    I ain't no miss nothing.

                    My point was that this isn't a wonderful "Judge was fair to a father for once" case. The mom was a druggie, it was effectively a mobility case, and it was a slam dunk that the father would get custody.

                    1. Father specified he wanted to pay tuition (if he was not having to pay CS).
                    Nobody wants to pay. Fathers are often forced to say that they want to pay because otherwise the courts assume that the fathers want custody for money. By deliberately asking to be screwed financially, fathers can show that they actually want the kids.

                    2. "The Applicant shall advise the Respondent immediately if she obtains employment or receives any other income so that the amount of monthly child support payable by her can be determined..." The mother is currently in receipt of ODSP.
                    But nothing that says "you are eventually going to have to get off your lazy non-custodial ass and work".

                    3. Child no longer has to commune 63 km 2 x daily for school.
                    Even if the mom got custody the child wasn't going to be travelling that far. School follows custody.

                    I found the decision to be excellent in that the mother was not "torn apart" for her drug addiction, rather the judge made the decision in a logical manner.
                    This is not a surprise, mothers are rarely torn apart. Druggie fathers are frequently eviscerated.


                    I'm sure the father feels that this decision is most definitely "a win" for his child.
                    Perhaps I was not clear. This was a win for the child, but it was more of a "dog bites man" situation than a "man bites dog" result. Mom was a druggie, Dad was competent and involved. Of course he was going to win.

                    Wait until the mom doesn't have to pay costs because of her impecuniosity. That's another dog biting a man. If she has to pay his costs, and those costs are enforced as support, I will consume a live cricket. Seriously.

                    Comment


                    • #11
                      I agree 100% with Janus, this a demonstration of how mothers who are complete losers f*** ups still are treated as possible custodial parents while fathers need to be super dad to win custody or even shared custody.

                      I noted this myself as I read the terribly long judgement. With a dad it would have been:
                      Facts
                      father doesn't work
                      father is addicted to drugs
                      Judgement
                      Mother gets custody....

                      Disgusting, its no surprise women file 70% of divorces, there is no downside unless the guy goes rogue.

                      Comment


                      • #12
                        I agree with Janus and Links. Links put it very succinctly.

                        Comment


                        • #13
                          I dunno.... if one doesn't want to pay costs of a private school then one shouldn't indicate that they do. Judge isn't a mind-reader. Father stated his willingness not once but several times.

                          Agree or disagree - this case clearly shows out how a judge determined custody.

                          Some people will find this of interest/use to them and others will not.

                          Comment


                          • #14
                            Originally posted by Janus View Post
                            The mom was a druggie, it was effectively a mobility case, and it was a slam dunk that the father would get custody.
                            Dad got custody because the child was not getting the care he needed. Not enough school, delayed medical attention, aggressive parenting, refusing to accept anything other than sole (Mom), deceiving OCL, and not being forthright with the court. Being a druggie was secondary.

                            Originally posted by Janus View Post
                            Nobody wants to pay.
                            The father wanted the child to stay in the school. The only way he could afford that was if CS stopped. If CS stopped, father was quite happy to divert the CS funds to the school tuition.

                            Originally posted by Janus View Post
                            Wait until the mom doesn't have to pay costs because of her impecuniosity. That's another dog biting a man. If she has to pay his costs, and those costs are enforced as support, I will consume a live cricket. Seriously.
                            You may well be right, but I've been reading a lot of case law lately where the inability to pay just isn't being tolerated anymore, especially when:
                            1) Applicant loses;
                            2) Losing side refused multiple offers of mediation;
                            3) No offer to settle made by losing party;
                            4) Winning party's offer to settle is VERY close to the final order;

                            Hoping to see you consume a live cricket ;-)

                            Comment


                            • #15
                              Hoping to see you consume a live cricket ;-)
                              I agree, somebody follow up on this case, Janus has crickets to eat.

                              Comment

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