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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  
Old 03-03-2017, 11:39 PM
number1dad number1dad is offline
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Default how to win ocl motion

what is best way to win such motion? case management judge has stated he/she would grant a leave to bring the motion. what is generally required to win these motions? what could i except the other side to argue to oppose it ? case proceeding has been ongoing for quite some time now.
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  #2  
Old 03-04-2017, 01:06 PM
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What is a win?

What do you want?

What does the other side want?

What evidence do you have?

What evidence does the other side have?
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  #3  
Old 03-04-2017, 06:30 PM
number1dad number1dad is offline
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Quote:
Originally Posted by Janus View Post
What is a win?

What do you want?

What does the other side want?

What evidence do you have?

What evidence does the other side have?
An order appointing the OCL would be the win. I want to get rhe OCL involved. The other side doesn't want that.

The judge was leaniant to my position to get the OCL involved at the last SC. the judge was specifically concerned that this proceeding had become contentious, has been ongoing for almost 2 years and stated that the child needs a voice.

what evidence do I need? what evidence does the other side need?
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Old 03-04-2017, 07:24 PM
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What is your 2-year struggle about? Please elaborate on what, specifically, has become contentious.

I think it would be helpful if you provided more information.
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Old 03-06-2017, 02:17 PM
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Quote:
Originally Posted by arabian View Post
What is your 2-year struggle about? Please elaborate on what, specifically, has become contentious.

I think it would be helpful if you provided more information.
a motion to change sole to joint custody, and to change a very limited every other weekend access to 5-5-2-2 schedule with an equal sharing of holidays. There is presently no holiday schedule. There was no independent legal advice on my end when the final order was made at a settlement conference previously. my motion to change was commenced by experienced counsel few months after the final order was made.

what has become contentious:

the other side will not agree to before/after school pickup drop/offs, let alone anything more than every other weekend access.

other side will not agree to equal sharing of holidays

other side will not agree to joint-custody

additionally:

professionals working with child have recommended counselling, but custodial parent has not acted on that recommendation. I have proposed counselling to other parent following the proper expected process. opposing party doesn't sound too inclined.

custodial parent has enrolled child in subsidized daycare, I am seeking to look after child as opposed to subsidized daycare, and would like child to be enrolled in before/after school program at her school for when custodial parent is not available. presently the child remains in subsidized daycare and is in homedaycare all summer long.

there is alienation going on by the custodial parent and other members of her family.

custodial parent has hidden information from 3rd parties
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Old 03-07-2017, 08:59 AM
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There, you have finally provided information

Quote:
Originally Posted by number1dad View Post
a motion to change sole to joint custody, and to change a very limited every other weekend access to 5-5-2-2 schedule with an equal sharing of holidays.
Why is the current schedule not working for the kids?


Quote:
There was no independent legal advice on my end
If you were arguing a spousal support order, that would be important. You are arguing a custody order, so your rights have no relevance. All that matters is the kids, nobody cares about the legal advice you may or may not have received.

Quote:
the other side will not agree to before/after school pickup drop/offs, let alone anything more than every other weekend access.
Nor do they have to. You are entitled to the access specified in the agreement. How would the children gain from seeing you more than every other weekend? What has changed from the time you agreed to only see them every other weekend? Why are you changing your mind?

Quote:
other side will not agree to equal sharing of holidays
If you are able to open up custody, you should be able to get this. That said, I'm not convinced that you will be able to change anything.

Quote:
other side will not agree to joint-custody
How has the order for sole custody hurt your kids? Do you have any specific examples?

Quote:
professionals working with child have recommended counselling, but custodial parent has not acted on that recommendation.
1) What kind of professionals?
2) Parents are allowed to ignore recommendations. That is the difference between a recommendation and, say, a court order.

Quote:
custodial parent has enrolled child in subsidized daycare, I am seeking to look after child as opposed to subsidized daycare, and would like child to be enrolled in before/after school program at her school for when custodial parent is not available. presently the child remains in subsidized daycare and is in homedaycare all summer long.
Parents have the right to choose their own daycare options. Subsidized daycare generally requires that the child be there almost all the time. If you were going to take over, are you available 100% of the time? Does work ever interfere? What about illness, would you still take care of the kid if you were sick?

Quote:
there is alienation going on by the custodial parent and other members of her family.
Alienation is a strong word. What evidence do you have of the alienation?

Quote:
custodial parent has hidden information from 3rd parties
What kind of information?
What kind of 3rd parties?

Offhand, parents have the right to not tell people things.
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  #7  
Old 03-07-2017, 11:30 AM
number1dad number1dad is offline
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Quote:
Originally Posted by Janus View Post
Why is the current schedule not working for the kids?
it's very limited. the kids want more time and are very vocal about it. the insignificant Wednesday visits are rush back to dads rush back to moms situation without anytime to properly connect.

Quote:
Originally Posted by Janus View Post
If you were arguing a spousal support order, that would be important. You are arguing a custody order, so your rights have no relevance. All that matters is the kids, nobody cares about the legal advice you may or may not have received.
The kids best interests are negatively impacted on an ongoing basis due to me not getting any independent legal advice.

[/quote]

Quote:
Originally Posted by Janus View Post
Nor do they have to. You are entitled to the access specified in the agreement. How would the children gain from seeing you more than every other weekend? What has changed from the time you agreed to only see them every other weekend? Why are you changing your mind?
I'm not okay with the access specified in the agreement. it is not working well for us and is only hurting the child on an ongoing basis. Children benefit from having maximum contact with both parents. It can only benefit the kids. I'm a fit and caring loving father. I re-iterate that I had no independent legal advice when the agreement was entered into. The access terms are ridiculous and good for a 3 month old child. Custodial parent has taken unreasonable position in regards to expanding any access and has been dictating all terms /pickups/dropoffs/ holidays to her liking based on her mood. I'm not changing my mind, I'm just trying to overturn an order that is hurting my kids and their relationship with me on an ongoing basis.

Quote:
Originally Posted by Janus View Post
If you are able to open up custody, you should be able to get this. That said, I'm not convinced that you will be able to change anything.
Custody and access are separate issues. The judge has stated her opinion that I should have the majority of the holidays as custodial parent has majority of school year access. I have been able to get expanded weekend access and some holiday access, but again, those terms are dictated by mom, insignificant, and negatively impacting the kids and their wishes on an ongoing basis.

Quote:
Originally Posted by Janus View Post
How has the order for sole custody hurt your kids? Do you have any specific examples?
Makes it very difficult for me to get information from 3rd parties, particularly so when the custodial parent hides the information. Decisions are made without any discussions or consultations with me, and are meaningless and just create problems.

Quote:
Originally Posted by Janus View Post

1) What kind of professionals?
2) Parents are allowed to ignore recommendations. That is the difference between a recommendation and, say, a court order.
1. Doctors and teachers.
2. the custodial parents decision to ignore the recommendation contradicts her previous acts and not in the child's best interests. the child could only benefit from the recommendation.


Quote:
Originally Posted by Janus View Post
Parents have the right to choose their own daycare options. Subsidized daycare generally requires that the child be there almost all the time. If you were going to take over, are you available 100% of the time? Does work ever interfere? What about illness, would you still take care of the kid if you were sick?
I'm not comfortable with the current daycare provider. Yes I am available 100% of the time. I have a very flexible work schedule and can even work from home. I have family that can look after the child when sick. How can I choose my own daycare options without any kind of custody?

Quote:
Originally Posted by Janus View Post
Alienation is a strong word. What evidence do you have of the alienation?
affidavit outlining behaviors and words expressed by child and observed by me. child being coached to make false allegations to CAS against me in attempts to cut off the insignificant access that I currently have.

Quote:
Originally Posted by Janus View Post
What kind of information?
What kind of 3rd parties?
Child's school name, child's daycare contact information, child's doctor, referrals made from the school, and other professionals involved.

Quote:
Originally Posted by Janus View Post
Offhand, parents have the right to not tell people things.
I'm not people. I'm the child's other parent.

I'd like to steer the focus back to my inquiry. How could I best present the motion to involve the OCL ? The judge is on my side for this request.
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  #8  
Old 03-07-2017, 06:53 PM
trinton trinton is offline
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conflict and disagreement will help you getting the OCL involved. That does not mean intentional conflict but rather holding on to your views, preferences, and opinions (as you have a right to do so). When those are in conflict to your other parent's views and preferences than that conflict has negative effect on the child. The issues should be then investigated by the OCL.

OCL is generally helpful to family law cases:

Quote:
In the 2002 decision of Parniak v. Carter[17] the child was five years old at the time of the hearing of the father’s motion for an order requesting the involvement of the OCL or an assessment under the Children’s Law Reform Act. Kukurin J. considered Linton v Clarke and concluded that while a clinical issue may be an excellent reason for a court to order an assessment, it was not the only reason. He went on to refer to other advantages including the neutrality of the assessor which makes the report more palatable to each side and contributes to a possible resolution; the recommendations that are helpful to the parties, to their counsel and to the court; the expert opinion on issues may be helpful to judges who may be deficient in the areas of expertise of such assessors; that reports although often in hearsay form, provide information not otherwise available to the court. He noted that for those who regularly review assessment reports, the contents occasionally cast an entirely different light on the allegations of the parties and more importantly, are more inclined to be focused on the child than are the allegations of hostile litigants. He observed that the information in an assessment report may help the court to come to some decision on the credibility of one or the other litigant. He concluded as follows:

21. . . . Overall, assessment reports can provide a better understanding of the dynamics operating in [sic] family that is before the court – a family whose members in most cases are complete strangers to the presiding judge.

22. Although assessments should not be ordered in every case, neither should they be limited to those cases where “clinical issues” are involved. In absence of specific statutory criteria, the court has to weigh the factors in any particular case in deciding whether an assessment report should be prepared. Delay occasioned by the report may be a factor in the decision. Certainly, a judicial estimation of whether a case is not bona fide or extremely tenuous may contra-indicate an assessment.

Last edited by trinton; 03-07-2017 at 06:55 PM.
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  #9  
Old 03-09-2017, 06:35 AM
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Quote:
I'd like to steer the focus back to my inquiry. How could I best present the motion to involve the OCL ?
That is sorta what I was trying to do. You have to give a reason as to why the current situation is not working, and how the kids are suffering.

Note that judges only request OCL to get involved. OCL has the discretion to decide if they will actually get involved, and they do not accept every request.

Quote:
The judge is on my side for this request.
If that is true then instead of worrying about making good arguments you can draw little doodles of monkeys playing poker on a napkin.

I have no idea how you would know that a judge is on your side, but if she is, then you win. That's the entire point of a court case, to get the judge on your side. Good job!

Since you have preemptively won your court case, you probably don't need any more help. However, for shits and giggles, I will respond to parts of your message.

Quote:
Originally Posted by number1dad View Post
The kids best interests are negatively impacted on an ongoing basis due to me not getting any independent legal advice.
Independent legal advice lets you know about your rights. However, your rights have absolutely no bearing in deciding about the custodial arrangements for the kids. This is because when it comes to the custody, the only test is "best interests of the kids". Since your rights are not part of the test, failing to have proper legal advice did not (in theory) affect the kids at all.

The point is, I don't think arguing about ILA is going to help your case.

To be clear, I'm not saying that the lack of ILA didn't have an effect. Of course it did. You signed a terrible deal. What I am saying is that it is not a good reason in court to overturn a custody and parenting time arrangement.

Quote:
Children benefit from having maximum contact with both parents. It can only benefit the kids.
Careful, maximum contact is one of the principles, but not the only principle. Judges routinely acknowledge maximum contact principles right before they cut out a parent because it is in the best interests of the children.

In your case, the kids are thriving in the current situation, so there is no reason to change. Yes, I know that you think they are not thriving. You need evidence. School reports, medically diagnosed depression, hospitalization for self-harming behaviours. Something that is said by somebody who is not you.

Quote:
I'm a fit and caring loving father.
You probably are. Do you have evidence for this statement? Once upon a time, you gave up your children. By doing so, you admitted that your ex was a better parent, and that it was better for the kids to not be with you. Now you need evidence to overturn that admission that you made.

Again, not saying that you are not fit. However, you can't just make a bald statement like that in court when you have already admitted to the opposite.

Quote:
I re-iterate that I had no independent legal advice when the agreement was entered into.
I seriously think you need to drop that. The worst thing in family court is a parent who is focused on their rights rather than the best interests of their child. It doesn't play well. Not even for mothers.


Quote:
I'm not changing my mind, I'm just trying to overturn an order
Was the order reached on consent or was it imposed by a judge? If it was reached on consent, then you are changing your mind. Since you are talking about ILA stuff, I'm assuming you signed a deal. Unfortunately, that's hard to take back.


Quote:
Decisions are made without any discussions or consultations with me
I thought mom had sole custody. If so, she doesn't need to consult you at all. Perhaps I'm mixing you up with a different post.

If you currently have joint custody, then she should be consulting you, and this is a reasonable point of argument as to why she can't be trusted. That would be good evidence as to why the current arrangement is not working. It is not working because she should be consulting with you and she is not.

If mom has sole custody, then this argument doesn't make sense. The point of sole custody is that she has the sole right to make all decisions.

Quote:
Yes I am available 100% of the time. I have a very flexible work schedule and can even work from home. I have family that can look after the child when sick.
That's very good. Make sure to have evidence of this when you get to court.

Quote:
affidavit outlining behaviors and words expressed by child and observed by me.
Wait, your evidence is that you are saying that your child agrees with your position? Are you serious? I can see why you need OCL. Be ready for some disappointment though. Kids almost always tell parents what they think the parent wants to hear.

Kids might very well be telling mom something entirely different.

Quote:
child being coached to make false allegations to CAS against me in attempts to cut off the insignificant access that I currently have.
If your kids want to come live with you, that doesn't seem like a credible threat.

...and how do you know this is true?

...and don't say something like this in court without evidence. That is a serious allegation. If you come into court flapping your arms about the big conspiracy by mom regarding CAS you will just come across as a nutcase.


Quote:
I'm not people. I'm the child's other parent.
Mom has sole custody. Honestly, you're not really a parent until you get joint custody.

Advice summary:
1) Have evidence to back everything up.
2) Assume that nobody will believe a thing you say, unless you have evidence
3) Stop talking about your rights

I think without OCL, you don't have much evidence, so hopefully they agree to get involved.
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Old 03-09-2017, 08:39 AM
number1dad number1dad is offline
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Wow Janus - so much negativity and insults!

Quote:
Originally Posted by Janus View Post
This is because when it comes to the custody, the only test is "best interests of the kids". Since your rights are not part of the test, failing to have proper legal advice did not (in theory) affect the kids at all.
There would have been joint-custody with proper legal advice, which would have been in the best interests of the child. Sole custody is hardly ever in the best interests of children unless the other parent is proven to be unfit.

Quote:
Originally Posted by Janus View Post
The point is, I don't think arguing about ILA is going to help your case.
To be clear, I'm not saying that the lack of ILA didn't have an effect. Of course it did. You signed a terrible deal. What I am saying is that it is not a good reason in court to overturn a custody and parenting time arrangement.
I don't think you're too knowledgeable in the area of ILA. It is always considered when parties seek to vary determinal consent orders.

Quote:
Originally Posted by Janus View Post
Careful, maximum contact is one of the principles, but not the only principle. Judges routinely acknowledge maximum contact principles right before they cut out a parent because it is in the best interests of the children.
I'm sorry but our judges don't just cut out parents. Worst case scenario they order supervised access. Only in the extreme cases they cut off access. They're not going to cut off access to a caring and loving father who'se seeking to increase his time and has picked up extra time along the way.

Quote:
Originally Posted by Janus View Post
In your case, the kids are thriving in the current situation, so there is no reason to change. Yes, I know that you think they are not thriving. You need evidence. School reports, medically diagnosed depression, hospitalization for self-harming behaviours. Something that is said by somebody who is not you.
The kids are thriving in the current situation? I don't know where you got that from? The evidence contradicts your opinion. Parents testimony are also taken in when credible.


Quote:
Originally Posted by Janus View Post
You probably are. Do you have evidence for this statement? Once upon a time, you gave up your children. By doing so, you admitted that your ex was a better parent, and that it was better for the kids to not be with you. Now you need evidence to overturn that admission that you made.

I don't need to prove I'm fit. The other parent has to prove be "un-fit". I did not give up my children and admit that it was better for the kids to not be with me. As per the consent order that you take as me "Agreeing to be unfit", though an very absurd argument for you to make, I re-iterate had no independent legal advice when I signed the agreement. The agreement however in no way shape or form state "I admit to being an un-fit parent by signing this agreement". If you reasoning is correct - then are you saying that when parent's are not given joint-custody because they don't get along it means that the other parent is un-fit ? Give me a break.

Quote:
Originally Posted by Janus View Post
Again, not saying that you are not fit. However, you can't just make a bald statement like that in court when you have already admitted to the opposite.
You've tried to classify me as "un-fit" numerous times in your post. I'm sorry but you are coming off as very "anti-dad". It's not a bald statement. It's the truth. I have never admitted to be un-fit. If I was un-fit, then why was I given access? Your thinking is absurd.

Quote:
Originally Posted by Janus View Post
I seriously think you need to drop that. The worst thing in family court is a parent who is focused on their rights rather than the best interests of their child. It doesn't play well. Not even for mothers.
You're failing to realize that my primary focus here is the best interests of the kids. Not my rights. I could care less about my rights, I just want what is truly best for the kids. and that is joint custody with maximum contact with both parents.


Quote:
Originally Posted by Janus View Post
Was the order reached on consent or was it imposed by a judge? If it was reached on consent, then you are changing your mind. Since you are talking about ILA stuff, I'm assuming you signed a deal. Unfortunately, that's hard to take back.
It was a consent that was imposed by a judge. I had no independent legal advice when the agreement was consented to.


Quote:
Originally Posted by Janus View Post
I thought mom had sole custody. If so, she doesn't need to consult you at all. Perhaps I'm mixing you up with a different post.

If mom has sole custody, then this argument doesn't make sense. The point of sole custody is that she has the sole right to make all decisions.
Sole custodial parents should still consult with the other parent, and 90% of the time, they are ordered to do so before making any major decisions. Sole custody doesn't give them a right to make all decisions - especially so for S7 expenses. Not does it give them any right to withold 3rd party contact information. Doesn't sound like you're an expert in this area, mom's who abuse their powers lose sole custody all the time.

Quote:
Originally Posted by Janus View Post
Wait, your evidence is that you are saying that your child agrees with your position? Are you serious? I can see why you need OCL. Be ready for some disappointment though. Kids almost always tell parents what they think the parent wants to hear.
I never said the kids agree with my position Mrs. Manipulator... the kids have been very vocal about wanting more time with me so I'm doing what I can to make their dreams and wishes come true.

If kids are telling the mom the opposit, and they are just telling her what she want's to hear, that would be a little disturbing don't you think?


Quote:
Originally Posted by Janus View Post
...and don't say something like this in court without evidence. That is a serious allegation. If you come into court flapping your arms about the big conspiracy by mom regarding CAS you will just come across as a nutcase.
you're right, maybe it wasn't mom who coached her, maybe it was someone else from her family, or even the babysitter, or her ex. I would be better of just stating my son has made allegations to CAS that I did X Y and Z. CAS investigated and closed the case.


Quote:
Originally Posted by Janus View Post
Mom has sole custody. Honestly, you're not really a parent until you get joint custody.
Then why am I given parenting time? Why do the kids call me dad? Why am I referred to as a parent/father in the courts? Don't you feel that I parent my kids and make whatever decisions I want for them when they are in my care? Have you never heard of the terms "non-custodial parent" or "access parent" ?

Quote:
Originally Posted by Janus View Post
Advice summary:
1) Have evidence to back everything up.
2) Assume that nobody will believe a thing you say, unless you have evidence
3) Stop talking about your rights
I already know 1, and don't agree with you for number 2. As per number 3, I think you should stop talking about the mother's rights. Nobody cares about her rights.

Quote:
Originally Posted by Janus View Post
I think without OCL, you don't have much evidence, so hopefully they agree to get involved.
You may want to read the thread's subject line and question. That is what I came here to ask, not to be insulted and attacked because you feel I'm not my kids parents just because I don't have "joint-custody".
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