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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 01-25-2018, 03:10 PM
XNarcSupplier XNarcSupplier is offline
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Default Beware of Parenting Coordinators and ADR

Hello,

So I don't normally write about legal issues between myself and my ex on the internet, but I felt the need to publicize what happened as it was a complete miscarriage of justice that goes against all law and well known public policy.

Jirova v. Benincasa, 2018 ONSC 534

https://www.dropbox.com/s/8942hi4s1s...ncasa.pdf?dl=0

I went through a family arbitration in September 2016 - the decision was for the choice of school for my son Alexander. It was a choice between a school in the catchment area where I live and a school in an area where the mother WANTED to live. Further investigation revealed that the home the mother was using for residency in the alternate catchment area belonged to the boyfriend, whereas she had a 1% interest on title in the property. It was also revealed that the property was condemned and not habitable.

The Education Act (section 32(1) ) is what governs our school decisions -- this is what determines why your child attends a school in the area he lives and why schoolboards enforce this policy. This law was never applied at either hearing, yet we agreed to have this decision based on the laws of Ontario, as per our Arbitration Agreement.

The arbitration conducted by the arbitrator Janet Claridge ignored all rules of evidence and civil procedure - it was essentially a kangaroo court and evidence proves that. If you search for Janet Claridge on case law, you will see some interesting cases that come up. As well, she is not accredited by the OCSWSSW.


Some of these arbitration issues include:

* She signed (and had witnessed) a declaration, indicating that she did screening. The screening document was dated before any of the parties even met. Screening never did happen, but the arbitrator confirmed it happened after the declaration was signed.
*A psychological assessment had been conducted in 2015 by a well known psychologist in Ottawa. It indicated that the mother had a multitude of negative personality traits and documented credibility issues. The arbitrator would not allow this paper to be introduced in the arbitration and mediation.
* The arbitrator would not apply the laws under section 32(1) of the Education Act and stated in an email that she could register the child in any school that she wanted.
* An adjournment was requested when significant evidence was presented a day before arbitration. It was subsequently denied.
* Requests for a court reporter were denied
* The mother's partner was allowed to attend and participate in the hearing. Further, the arbitrator allowed the mother to take breaks during cross-examination to consult with her lawyer on the phone.
*Unsworn evidence was accepted.
*The arbitrator initially did not want to allow a hearing.
*New evidence was presented and accepted at the arbitration. Furthermore, this evidence was not given to the opposing party, nor were they allowed to examine it. This was all allowed by the arbitrator.
*Significant hearsay evidence was allowed by the mother.
*Furthermore, after the hearing, the mother's boyfriend provided further evidence that contradicted what was presented in the affidavits and the hearing. This was allowed by the arbitrator.
*The Arbitration Award was based entirely on speculation. There weren't any references to the Education Act or the Children's Law Reform Act. The criteria under the best interests test were not listed. The only words on it were appended to the end 'the best interest of the child.'

After the arbitration, I contacted the OCDSB schoolboard who confirmed that my son would normally not be able to attend that school, given that it was overpopulated, he wasn't living in the area and the home wasn't habitable. However, they had to follow the Court Order.

I appealed this to the Superior Court of Justice in Ottawa.

The Arbitration Award itself was not based on any law whatsoever and was entirely speculative. Furthermore, expert evidence was presented by a well known psychologist that indicated the mother was highly manipulative and had credibility issues. Furthermore, the mother chose to represent herself at the Appeal and felt the need to wear a body suit and make gestures to simulate that she was about 6 months pregnant.

The Superior Court of Justice made the decision that because I agreed to that process (as part of my Court Order), I fundamentally gave up my rights and that I was treated fairly and equally in that regard. Furthermore, by confirming the Award, the decision goes against all known case law regarding schooling and public policy. Evidence was also submitted that the Arbitrator may have have committed fraud / perjury by signing a sworn (and witnessed declaration) saying she performed screening, before she even met the parties. The Judge stated that this was allowed. You can't sign ( and witness ) a document, stating you have done something, before you do it.

The Arbitrator never showed up, never submitted any Affidavits. Further, a request was made for her notes as per the Arbitration Act (a legal requirement) -- she never delivered these and the Judge never commented on this requirement.

Courts are pushing people towards Alternative Dispute Resolution in an attempt to remove people from a bogged down court system. Yet when something like this occurs, it casts a bad light and removes public faith in an already seemingly biased and prejudiced system. The provincial government also does not have a watchdog or grievance procedure for this process.

Beware of Alternative Dispute Resolution Processes -- they do not have to follow the law, as the court will not back you up.

Once you sign your name, you give up all your rights.

One of the memorable quotes:

[79] I get the clear impression that the appellant and his counsel, during the arbitration portion of the PC process, insisted on a very strict adherence to the rules of procedure and evidence that one would expect in a court proceeding. Unfortunately for the appellant, that is not the dispute resolution process that he agreed to engage in.

The decision is enclosed for whoever wants to enjoy it.

I am debating what to do with this at the moment...
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  #2  
Old 01-25-2018, 06:07 PM
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arabian arabian is offline
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I think you should, if you already have not done so, is to regroup and review what specific arbitration you agreed to in the first place. Was it "binding" arbitration? My experience with arbitration was positive. Big difference is that in Alberta, judges conduct binding arbitration (commonly called JDR's - Judicial Dispute Resolution). Both my ex and I were represented by experienced, competent legal counsel. Both my ex and I were fully aware of the terms of the arbitration and had to agree to everything at least 6 months prior. Submissions were made in accordance with the 30-day deadline and of course no new submission was allowed after that time.

Some people go into arbitration without insisting upon it being binding. without it being binding it would end up like those "case conferences" you have in Ontario where nothing much is decided upon, lawyers make money.

So I'd review the process that you initially agreed to and go from there. You went to an appeal? (you only have 30 days to appeal).

Edit - in reviewing the Appeal decision - you agreed to the process.

I will say that it was abhorrent that your ex brought her boyfriend with her to the hearing and that he actually participated. However, the PC had all the power (which you had previously agreed to) so there isn't much you can do.

Last edited by arabian; 01-25-2018 at 06:23 PM.
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  #3  
Old 01-25-2018, 06:17 PM
XNarcSupplier XNarcSupplier is offline
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It is binding arbitration. Thing is, the judge stayed away from key legal issues I had raised. If this goes further, those would be the ones to bring up in front of a judicial panel.

Lawyer is trying to say that the judge may punish me if I decide to further appeal her ruling.

There might be another way around this whole appeal process, possibly through a motion to change on new material circumstances. I am debating the best way to do this.
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Old 01-25-2018, 06:25 PM
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Is it all worth it in the end though? or are you more into a winning/losing thing?

I don't think you would get anywhere appealing the arbitration (your time/chance is up I believe). Too bad you didn't go to trial instead.
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Old 01-25-2018, 06:36 PM
kate331 kate331 is offline
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Even if you tried to appeal again, now that your child is in school would a court even agree to move him? Where my son goes to school JK & SK are together so they stay in the same class for 2 years which has some benefits.
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Old 01-25-2018, 08:17 PM
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The thing is about binding arbitration is that it is, indeed, "binding". My lawyer stressed this on my many times before we proceeded. If the two parties cannot make an agreement, with the help of the arbitrator, then the arbitrator will make the decision. Not everyone agrees with it. Unless the arbitrator erred in law then there is no recourse.

My ex was never happy, after he agreed to everything in the arbitration, once he was able to absorb everything the judge ruled. He wisely did not attempt to appeal. However, he has taken me to court for the past 7 years, unsuccessfully, in attempts to overturn/change the ruling. Yes the poster could drive his ex batty (as my ex does) with incessant litigation, albeit unsuccessful litigation.

This instance is about where a kid is going to go to school. In 3-4 years I suspect this won't matter much (but then what do I know). Pity this whole matter even got this far and that the parents couldn't simply work things out. Losing is no fun but spending $$$ just to make a point is kinda pointless IMO.
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Old 01-25-2018, 08:33 PM
XNarcSupplier XNarcSupplier is offline
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The issue is mom's unstable. She may never move into that neighbourhood. If she ever does, it's only a matter of time until she splits from that guy (he is 23 years her senior) and she is diagnosed narcissistic, bipolar and antisocial.

I would like my son to have stability and have set up an environment for him which would provide it. I have family that he can spend before and after school with. It will also allow him to enjoy after school activities instead of spending 45 minutes in the vehicle both ways and falling asleep from exhaustion. Instead of going to daycare he can take the school bus like most kids.

He doesn't have any neighborhood friends because he is not living in the area where he attends school. He is having social problems with other children because of this.
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Old 01-25-2018, 09:25 PM
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Well your solution isn't going to happen now. That's all there is to it.
Many people are "diagnosed" with one form of mental disability or another but as long as they are under the care, and receiving ongoing treatment, from a physician then that is all that is generally considered. Your ex may indeed find stability with being with an older man. They may go on to get married and have more children, creating brothers/sisters for your son. You can't predict the future.

What you can do is try to make everything in your son's life positive. This includes when he is with you or with his mother. I suspect that your recent litigation has been tiring for you and your ex (and expensive). Perhaps lay off a bit and give your ex some time to be a mother without having to worry about court and lawyers and such? Maybe plan some great times in the Summer with your son.

If your son does poorly in school then that might be an issue. However, it doesn't mean you take your ex back to court. Instead you should work together to find solutions and help your child.

Probably the best thing you can do now for your child is find a way to get along with his mother. Mend some fences. You will be connected with this woman for a very, very long time and you have to accept that she is going to live her own life, her own way.
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Old 01-27-2018, 04:18 AM
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Quote:
Originally Posted by XNarcSupplier View Post
... she is diagnosed narcissistic, bipolar and antisocial.
I call bullshit on this.

You are spewing a pile of generic nonsense. NPD is an Axis II disorder of the personality in Cluster B. Bipolar Disorder is an Axis I disorder. The occurrence of NPD in population is 1-2%. It is highly unlikely she is a "diagnosed narcissist".

I would buy that she may experience hypomania (bipolar mood elevation less acute than full mania) with grandiose perceptions of self.

Furthermore, "antisocial" -- assuming you are referring to Axis II APD is a cluster B disorder with a whole different clinical classification.

Do not mistake "traits" with "diagnosis" which I believe you are doing and exaggerating the situation.

A diagnosis would be properly coded under DSM-IV-TR, DSM-V, or ICD-10-CA. As you have not even properly identified the root diagnosis properly, I am highly doubtful you are being truthful.

Read this: http://the-toast.net/2013/12/04/your...lity-disorder/

I doubt that you married someone with this complex set of diagnosis. If they were they would probably not be able to function in society being NPD, APD and Bipolar. Someone with those conditions would be FORMED generally because they would be unmanageable.

Nor would they be able to parent generally. We are talking about a VERY VERY VERY complex mental health diagnosis if all conditions are true and painfully rare. 0.001% rare by my calculations based on the societal occurrence of the conditions you are claiming.

NPD is a 1-2% of the population. Same with APD. So to meet 2% of the 2% is not really going to cut the mustard as an allegation.

Quote:
Originally Posted by XNarcSupplier View Post
It will also allow him to enjoy after school activities instead of spending 45 minutes in the vehicle both ways and falling asleep from exhaustion. Instead of going to daycare he can take the school bus like most kids.
Wow. You are an idiot. 45 minutes? I guess students who live in rural communities are going to grow up as serial killers because they take the bus for over an hour to get to school?!

Do you see how dramatic you are being about a 45 minute car ride? If it is that big of a deal... Move right next to the school! That is what a good parent would do after a decision like this. They would simply move into the catchment.

Wow... Just wow...

Quote:
Originally Posted by XNarcSupplier View Post
He doesn't have any neighborhood friends because he is not living in the area where he attends school. He is having social problems with other children because of this.
I guess the kids who attend private schools all over the province who don't go to the local school are also going to grow up to be serial killers too?

If he is having social problems then simply move into the catchment.

Wow...

You may find yourself at the end of a liable lawsuit too because you posted this all on line.

Before you attack me... I suggest you read all my main threads on school districts, mobility, etc... I am well versed in this stuff.

Good Luck!
Tayken
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Old 01-27-2018, 04:29 AM
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Quote:
Originally Posted by XNarcSupplier View Post
I am debating what to do with this at the moment...
1. Hire a real estate agent.
2. Find a property in the catchment for the school.
3. Buy that home.
4. Sell your home.
5. Move into the new home.
6. Stop the nonsense!

I note Google Maps suggest the drive time is 19-22 minutes based on the information provided in your decision. Sure with traffic, it may be double but, yeesh... Really?

What is more important? Fighting with the other parent or doing whats right for the child. If you are so against the travel time to school when the child resides with you just move.

If you continue this kind of nonsense you may not have to worry about travel time to school because you will be an every-other-weekend parent and not have to worry about drop off, pickup, afterschool or anything like that.

Count your blessings. You can blame the other parent, arbitrator, the system, etc... It isn't going to do a lick of good to your child. What do you gain from conflict?

If you let this nonsense bleed more you will be facing more court orders like this one where you are on the losing side. Stop trying to "win". No one "wins" in family court. There are only losers.

You want to win for your child. MOVE. It's not that far from where you are currently residing.
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