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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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Old 02-28-2018, 01:18 PM
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Default Justice Spies FTW - Joint Custody and Equal Access

This is an interesting one...

Craig v. Torrance, 2018 ONSC 541 (CanLII)
Date: 2018-02-12
File number: FS-17-00021337
Citation: Craig v. Torrance, 2018 ONSC 541 (CanLII), http://canlii.ca/t/hqfsw

Why? -- Massive motion decision but, really well done!

Quote:
[6] The material filed on both motions is voluminous; over three volumes of the Continuing Record. At the hearing both counsel agreed that it was too much to be dealt with on a one hour motion, which was all the time that was booked. Ms. Nicholl, counsel for the mother, was content that I adjourn the motion for a trial of an issue but Ms. Piafsky, counsel for the father, urged me to deal with it. Having read a considerable amount of the material filed, I knew that the mother earns more than the father (the father earned $85,000 in 2016 whereas the mother's income was just over $111,000). I was concerned that legal fees not stand in the way of resolution of these important issues. I advised counsel that I would allow two hours for argument of the motions and would decide the issue of access over Christmas/New Year’s immediately and reserve the balance of the motion. I advised counsel that I reserved my right to adjourn the balance of the motions to a trial of the issues pursuant to Family Law Rule 15(13).

[7] On this basis argument proceeded. I was able to make an order to deal with access over Christmas/New Year’s, on consent. I reserved the balance of the motions. Fortunately, notwithstanding the totally opposite views of the parents as to the facts, I have been able to decide these motions and in my view, for the reasons that follow, a trial of these issues would not change the outcome I have arrived at. I hope that the parties will agree and resolve any remaining financial issues and get on with their lives and the lives of their children.
Woop woop! More judges need to pull the plug on high-conflict situations like this more often. Great stuff!

How did the father in this matter succeed so well?

Polite email. Really polite email.

Quote:
[12] Fortunately, additional evidence was filed that gives me the ability and confidence to make findings of fact. What I was impressed by, and I expect any trial judge would be, was the email communications between the parents which cover some of their communications since separation until late 2017 and the views of the neutral third parties who were prepared to swear affidavits. That evidence, in my view, is deserving of the greatest weight and, for the most part, it is what I have based my decisions on. For these reasons, in my view, a trial on these issues is not necessary and would be a colossal waste of the financial resources the parents have, which could be better spent on their children.
(There is lots of great stuff in this one and it should be read in full... I am just picking out the email stuff cause it was incredibly well done.)

I couldn't have ghost written this stuff better for the father...

Quote:
[34] In an email on July 26, 2016 the father wrote: “I’d like to sit down and have coffee with you. We don’t have to talk about any of this stuff. Just catch up and start to treat each other with [the] respect we each deserve. I mean this sincerely, but only works if you are willing to participate.” He sent a second email stating it might be a good time to talk about where the kids were going to school the next year and that he couldn’t afford Sloane going to private school. In a subsequent email the same day the father wrote that Maddoc had told him that the mother had begun the enrollment process for him at a local school into a French Immersion program. The father stated that he tried to engage the mother in this conversation for some time “but you have refused. Why aren’t you talking to me about it?
Excellent stuff!

Quote:
[39] In this email the father demanded that he be consulted on all major decisions regarding the children. He again suggested that they seek professional help. He ended the email with “we will need to interact for the rest of our lives. I want to have positive relations with you and am confident we can move past this stage and work productively together as amazing parents for our children, but I can’t do it myself.
...
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Old 02-28-2018, 01:27 PM
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... this analysis on the email is so good I am just going to post it...

Quote:
(b) The email evidence

[53] I have considered the email exchanges in 2017 to be most relevant as they are more recent and the hurt the parents suffered as a result of the breakdown in their relationship has hopefully lessened. I find this email evidence to be very compelling as it is a hard record of statements by the parents about various issues that are relevant to what I must decide. This email evidence demonstrates why an order requiring parents to communicate only in writing is such a good tool to ensure cooperation. Educated and smart parents, like the parents in this case, will realize that unless they are civil and cooperative in their communications with the other parent, that will be looked upon negatively by this Court.

[54] I have already referred to the emails and evidence which support my finding that the mother has made significant decisions about the children unilaterally and excluding the father. As already stated, despite the unilateral actions of the mother, the father responded with great restraint. He also suggested counselling for them which suggestion was ignored by the mother.

[55] The mother deposed that:
Dan bullies me. He has sent me nasty emails or text messages, or yelled at me and then follows up with an email saying that he wants to work positively with me. This behaviour is abusive and because of that, I do not engage with the father. Dan has asked me to go to counselling with him and I have not responded because frankly I do not know what to say. I am afraid of his reactions to things he does not want to hear. I was advised by my counsellor to not attend any sessions with Dan as she did not feel it would be in my best interest.
[56] When Ms. Nicholl submitted during oral submissions that the father was verbally aggressive and bullying in his communications with the mother and harassing in front of the children, including through emails and text messages I asked her for an example and she took me to Volume 3, Tab 2D of the Record which is three pages of emails the mother attached to her reply affidavit to illustrate the points she makes and presumably to rebut the emails provided by the father.

[57] The emails from June 30 to October 27 (year unknown) are headed "Disputing Dan's claim that he always gives me first right to refusal". In the father’s email he advised the mother that when he was taking Maddoc camping for five days for a boys’ trip, Sloane would stay with his mother during the week and then he would take both children camping for three or four days. The mother responded that since she works half-days in the summer her parents had offered to look after the children on Friday mornings until she got home from work and that she could be with them in the afternoons. The mother went on to say that the children would be at her parents' for a week in August. I don't see how this is different from the father having his mother assist him and in any event there is evidence of the children staying with their paternal grandmother along with her other two grandchildren.

[58] In her email to the father of April 19 (year unknown) the mother offered the father the kids for a Friday morning when she would be out of town. In an email of October 27 (year unknown) the mother offered the father the children until later on a Sunday. In both cases the father agreed to take the children. I agree these are examples of where the mother made an offer of “first right of refusal” to the children. I note that the exchanges between the parents were all very civil. As for two emails exchanged between the parents on May 26, 2015, which the mother provides as example “disputing Dan’s claims that I displaced him”, I fail to see the relevance of them. They are a cordial exchange shortly after the separation discussing a meeting between the parents and the fact they may want to see their counsellor one on one.

[59] It is telling that the father has included a large volume of email exchanges with the mother in his affidavit. The father deposed that he can produce every single email and text message exchanged between him and the mother and there will not be one which is "nasty, bullying, negative or aggressive". As the father points out, although the mother claims that he bullies her and sends her nasty emails and text messages, she has not produced one single piece of evidence to support this allegation.

[60] The parties have clearly had difficulty at times when they have had personal contact. They have both blamed the other for this. There is evidence that the father has tried to deal with some of these unfortunate events. For example, in an email from the father to the mother on January 27, 2016, he referred to the prior night as not being productive and that the conversations would not be if they continue to make inflammatory insults/comments. He stated he didn’t want to treat the mother this way and that he didn’t want to be treated this way either. “We both have deep wounds and we both have had our opportunities to blame each other. It’s time to move past this nonsense and have productive/amicable conversations as that is what is in the best interest of our children.

[61] In a series of emails in mid-July to the end of August, 2017, the parents discussed the father taking the children for some “cottage time.” In an email to the mother of August 21, 2017 the father complained that the mother became hostile and aggressive towards him in front of the children suggesting she didn't know he was taking the kids away for a few days to his aunt and uncle's cottage. He stated in his email that he knew she recorded either audio or video and audio apparently "attempting to bait me into an argument". He complained that he did not know why she was looking to escalate conflict "when we should be looking to avoid it" and he asked for a copy of the recording. In her reply email the mother advised the father that there is no recording and she denied being hostile and stated that "these types of accusations need to stop".

[62] In general I am struck by the tone of the father’s emails to the mother as for the most part they illustrate the type of communication I would hope the parents could have. For example, in an email to the mother sent in May 2017, the father told the mother that he wanted her feedback in connection with the recommendation from Maddoc’s teacher that they have Maddoc see a social worker, as it would be “helpful as you have a different lens and perspective of Maddoc’s day to day situation.

[63] In an email of June 15, 2017 the father responded to the mother’s advice that she had found a home a few blocks from their residence with: “Congratulations! So exciting.” He followed up again on the counselling suggestion that he had made before. I note that the mother however deposed that the father “expressed no pleasure” in the fact she bought a home to stay in the area. That assertion does not appear to be true.

[64] In his emails to the mother, the father has made repeated requests that the mother agree to counselling so they can improve their relationship and there is no evidence in the emails of any response from her. His emails often suggest that he wants a positive relationship with the mother and that they need to do this as it is best for the children. In her evidence before me, the mother deposed that she was afraid of the father’s reactions to things he does not want to hear but that is the whole point of counselling and in my view it would be good to air these issues in the presence of a counsellor. The mother denies that she is still angry with the father about their separation. The mother does not state who the counsellor is that advised her that this counselling would not be in her best interest. Whoever it is, I strongly disagree with that advice.

[65] As I will come to, the emails also show that the father repeatedly asked for additional time with the children which the mother refused for various reasons that in my view were generally not reasonable.

[66] Despite the intentions of the parents, absent a drastic change, from what I have seen in the evidence, without coming to a decision that either parent is to blame, it appears that there can be unfortunate blowups between the parents when they are forced to deal with each other face-to-face. In my view a custody/access plan that relies on written communications only and avoids personal contact at pickups and drop offs is the most likely to succeed and avoid confrontation in front of the children.
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Old 02-28-2018, 01:28 PM
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DANIEL TORRANCE,

I salute you. Thank you for demonstrating how parenting after separation should be done. This case law should serve to everyone on this community to better understand how things should be done.

Good Luck!
Tayken
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