A long hello

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SillyMe

New member
I been lurking for the past few months and thought it time to say hello, introduce myself and, should I get the time, contribute to this community.

I recognize a few individuals that post here. I also find this one of the best forums thanks to those that do contribute to posts from those seeking direction and some understanding of our devastated family law system.

I am a sole custodial parent of my two sons. Not before going through the rungs of custody litigation that saw the involvement of the CAS, an OCL report, family assessment, 29 days of trial culminating in an order for sole custody of my children to the mother, $26,000 in spousal and child support arrears and, $45,000 in court cost ordered against me. My case had nothing to do with the best interest of the children; it was about setting a precedent for court cost. My case is still used in law arguments. By this information, some of you will recognize who I am.

Fast forward 18 months from that fateful final order, my children were apprehended from the mother by the CAS and, placed in foster care. I had no parental rights to my children. The funniest part was, they were apprehended on the Friday of my access weekend and the CAS put them in foster care all the same. I worked all that weekend on my applications, affidavits, motions, etc. I filed for custody Monday morning; I filed for a material change and, beat everyone to the punch. This forced the court to join one of the files with the CAS protection proceedings. It was almost a week before I was able to take my children home (CAS deemed my place a place of safety) which in court time is amazing. I would love to tell you the shape my children were in but my writing would slow to a crawl while I wipe back the tears. In the end, everything I was telling the court back in time about the monster the mother had become to me and these innocent children was true. Of course, the court would never admit to this. It took another year to resolve the custody issue’s and this included having half of my pay continuing to go to the mom regardless of my pleadings with the court that my earnings should be supporting the children currently in my care. I believe the reason you can not get transcripts for case conferences anymore in Ottawa is because of the way a particular Ottawa judge treated me. It was one of the last case conference transcripts you could get out of the Ottawa court house after I attached it to my very next affidavit. I also believe it was the reason I was successful in gaining custody of my sons and again, it nothing to do with the best interests of my children (although it was for a change) rather, a saving face for the court.

During this aforementioned 18 months I married and had a daughter with my new wife.

Fast forward to today and I am back in the throngs of family court hell. Turns out, my wife never wanted me rather, a child and after the child was born I became nothing more then a pay cheque. My wife would do whatever she could to impede me having a normal father daughter relationship regardless of my efforts with marriage counseling, communication workshops, etc. While my wife had no interest in having a relationship with me, I told her that I could no longer live under these conditions and that I would be seeking a separation from her in order that I might at least have a relationship with my daughter. I implied that any negotiations should begin with joint custody of our daughter. As long as the parents can act in a healthy parental role, I am very much a proponent of children having an equal relationship with each of their parents.

This would not do for my wife and she decided that the best way to remove any relationship I have with my daughter is to falsely accuse me of sexually molesting my daughter. Back in March when this began I was removed from the home, there was involvement by our marriage counselor, a psychiatrist from the CHEO, the police and, CAS. The investigation (with polygraph) concluded that my wife’s false accusations were just that. My wife learned by her mistakes and tried again in July, only this time, she removed my daughter from the house as well as half the contents. She did this while my sons were at my sisters and me at work. I was left with no alternative but to file with the court in order to gain some access to my daughter. The worst place to go if you’re a father. I was only made aware via her affidavit in response to my emergency motion some weeks later that she had made new false allegations against me. The court took her lies as gold, told me this wasn’t an emergency, then the court made an order for supervised visitation, stigmatized me as a pedophile while leaving two other children in my care. It still makes me shake my head but, it is the reality of any poor sole going to court expecting to find truth or justice in this corrupt system that has become our family law system.

Today, I have supervised access to my daughter for 2 hours every week. I am self represented because the best lawyer in town is still only half as good as the worst lawyer in town working on behalf of a mother. I mean no disrespect to those that practice family law or that are providing the best representation for their clients. In the first case, I had a very good lawyer whom did a very good job, we won the battle but, when you are facing social agendas and the very prejudicial family law system we fathers are faced with, the children became the true victims. I have the truth on my side and the court does not have the appearance of justice on their side. All the same and because of my experience with the courts, I expect that my connection with my daughter will be lost in the end. Stay tuned for trial in May. I will end this long intro with a quote taken from a letter to me from one of the most respected psychiatrist in Ottawa;

“I sit on the Child and Youth Protection Team where the allegations Mrs. X has made were carefully discussed and the Team has not come up with any reasons to be concerned about Mr. X’s behavior. This report has been made available to the Children’s Aid Society and in general my opinion and the Child and Youth Protection Team’s opinion is that the marriage breakdown has triggered a strategy of accusing Mr. X of sexually abusing his daughter as a strategy for distancing him from his daughter. However, understandable it may be that Mrs. X would want the child for herself, there is no medical psychiatric evidence that suggests that he represents any danger what so ever to his daughter.”

God bless and good luck to all
 
Wow!

Wow!

If your ex is falsely accusing you she is teh reason why so many children are ignored!!!! I am on the opposit side of you, I left my husband and then my kids told me a few months later that he had been fondlign them...... but NO ONE will listen!!!! all because its a divorce case! They wont even consider his psychologocal problems :( I hope for your case things turn out ok

Good luck!
 
SillyMe,

Welcome to the forum. That is quite the history.

Question - Why have you asked for joint custody of your daughter. What I mean is "negative finger pointing such as numerous allegations by your ex will not bode well for a joint custodial regime of your child. The 2005 Kaplanis Ontario Court of Appeal decision sums it up; For a court to consider a joint custodial regime for the child in question, there must be historical communication and co-operation between the parents in regards to the best interest of the child. Since the father in that case only claimed a joint custodial regime, the court had no other option than to award sole custody to the mother notwithstanding the trial court found that she was to blame for the lack of co-operation and communication.

In the face of unfounded allegations, Have you considered amending your pleadings to include an additional claim of sole custody. See Stefureak v. Chambers (No. 3), 2005 CanLII 16090 (ON S.C.)

http://www.canlii.org/on/cas/onsc/2005/2005onsc13850.html

lv
 
Thanks for your input lv

When I filed, it was after my wife removed the child and, I was unawares that my wife had made new allegations against me. I asked for joint custody because I “strongly believe” it is best for the children. It wasn’t until some weeks later after she left with our daughter whom I could not see, that I found out that my wife took my daughter to CHEO with new false claims then, lied in her affidavit about the doctor’s diagnosis. She did not attach the diagnosis and the order was made simply on her hearsay evidence. I have since been able to amend my application for sole custody of my daughter. Regardless of which, I am up against the status quo.

SillyMe
 
Mtlmom

There are doctors and such that you can take your children to. My problem is; regardless of my pleadings to have my daughter seen by someone, the court has refused my request, so has the mother. Well not quite, she did have my daughter seeing someone but lied to the court about this also. I am completely powerless, I have had any parental rights stripped from me.

SillyMe
 
SillyMe,

I agree status quo is difficult to change. Basically a material change has to occur. However, in light of the allegations and proof to show that they are unfounded may question their ability to act as a parent in the ongoing care of your child. Continue documenting the discrepancies and untruthfulness of the individual. Eventually, the court has to see the the individuals motives for what it is. At some point or another they will slip up. If the court does realize same, perhaps they may issue a parallel parenting order.


lv
 
Thanks again lv

By material change how? In August the child’s daycare provider made a referral to the CAS. The referral states that the child had bruises on the insides of her thighs’ and knees. When the care provider asked her how she got those bruises, the child came up with three different stories. It was because of the differing stories that the care provider decided to call the CAS. What is so significant about this incident is, I had had no access to my daughter since July and would not have any access until September after my next appearance in court. I did not find out about this incident until I received the court ordered CAS disclosure in November. Hence the difficulty I am facing. No parental rights, no way to protect my daughter and, no way to find out the truth. I broke down wondering what is happening to my daughter. The CAS did not inform me about this incident and determined nothing in the end.

Or how about how my wife has been sleeping with the child since birth? One of the reasons I decided to separate from my wife is she refused to sleep with me, preferring to only sleep with our daughter who has just turned 5 years of age. My daughter and ex moved into a furnished one bedroom apartment, do you think the sleeping arrangements have changed? I do not think this healthy behavior nor can I prove that this behavior continues. To lighten some of this up, I remember lying in bed one night, not long before my ex left the house and thinking to myself; sleeping alone on a very comfortable king size isn’t so bad. Not long after this, I was sleeping on the floor on an air mattress with absolutely no furnishing in the room what so ever. She took all the master bedroom furnishings when she cleaned out the house.

How about her being able to get legal aid, social assistance and, buying a new car all the while having a savings of $27,000 in savings. This was new to me and obviously a well planned exit while I struggled to make ends meet paying all the bills. During our cohabitation she couldn’t contribute 1 cent to the family expenses. She was running a business from our home and just months before this all happened she moved her business into an office, claims to be making little or no income. When she was running her business from our home, she wrote off allot of the house expenses (which I paid) helping her to show little or no income. I even received a cheque for $5,000 from one of her clients addressed to the matrimonial home in August after she moved out. I realize this is a bit of a rant but, I have disclosed all of the above to the court and nothing has changed.

I will leave this rant at this final story about the Christmas access. I get access once a week; 2 hours at the supervised access clinic and 2 hours at McDonalds with her access supervisor the following week. Turns out my access at McDonalds would fall directly on Christmas day and I had asked her supervisor (a nice fellow) if he wouldn’t mind coming to the matrimonial home for 2 hours on Christmas day so my daughter could spend that 2 hours there with us (McDonalds was closed). He said he was fine with that but that I should make those arrangements through her lawyer. It was denied; instead they wanted us to meet at a restaurant at the Chimo Hotel for Christmas day access. When asked directly by the judge why she didn’t agree to the access at our home she stated; I didn’t want our daughter to go there because she hadn’t been there in such a long time. The judge didn’t say anything more and I was left thinking this a reasonable answer. This was our child’s home just months before and flies in the face of an environment the child was already used too.

Again, just a tip of the iceberg and yes, described in my materials now before the court.

SillyMe
 
SillyMe,

Why not use the workers at the child's access centre as credible witness's to correlate that the child is not under harm in your care. What is preventing you from bringing forth a motion to increase the child's access to more meaningful and traditional circumstances.

In Z.(A.) v. W.(J.), [1.] In consideration of the facts; The court held that they could not trust the custodial parent in the ongoing responsibilities of caring for the child and ordered joint custody.

By default, a social assistance recipient qualifies for legal aid automatically.


[1.] Z.(A.) v. W.(J.), 2004 ONCJ 157 (CanLII), (2004), 11 R.F.L. (6th) 180, http://www.canlii.org/on/cas/oncj/2004/2004oncj157.html


lv
 
Thanks again lv

All of my affidavits and motions did request more access or normalization. I have 4 affidavits with close to 100 exhibits on what I have already described and more. My last affidavit was in response to the court not allowing me to make any submissions on my materials. I have yet been afforded the opportunity to make submissions and now the proceedings have been adjourned till trial. The court has done all that they could to keep the truth in the matters from coming forward and having to make a change in the order currently in place by, not allowing me to make submissions. Although, each of the judges did say they read all of my materials.

There are two things with precedence;

1. It would mean that the court would take them into consideration in their determinations and;
2. They would need to be applied to the case at hand.

Since lv you continue to provide precedence, that I continue to read, which in the end should mean a fair, balanced and, unprejudiced proceeding in court here is more;

The last time we were before the judge, he asked my ex directly about how the visits were going and it went something like this;

Judge: So how are the visits going? Any problems?

Ex: Good, she is excited to go on the visits.

Judge: How is she after the visits? Any problems, is she calm, any behavior problems?

Ex: No, she is ok. Is settled, happy, etc.

Judge: Well, if what you say about the father is true, there would be something. There would be something the child would exhibit.

Ex: No answer

Here’s another question the judge asked of her counsel a good 5 times.

Judge: Do you have any other evidence to place before the court other then what the mother has been saying about the father.

Ex’s Counsel: No

On my estranged wife’s affidavit that the court relied on and saw her gain the order which is in place today, she informed the court that there was an ongoing CAS investigation. This was not true and in my last affidavit I included the disclosure from the CAS which include the “Safety Assessment Report” which states that; “The mother erroneously informed then court that there was an ongoing CAS investigation”.

I even asked for leave to appeal that order. If we applied the average person test, I believe there is enough before the court to have made a change in the order but because, it is an order made on the same level and in my experience, changing the current order is just something they will just not do in Ottawa to one of their own colleagues.

I am well aware of the recipe commonly used such as; remove yourself and the children, apply for social assistance, gain legal aid whilst the other working parent must continue in their employment and, pay their own legal expenses if they can afford to do so. What I can’t understand is how someone can have $27,000 and still get social assistance unless of course they lied in order to get that social assistance to begin with.

Add into this mix, I also have two children whom depend on me as their sole support. I am aware that false allegations of abuse are part of the mix and, that the alleged perpetrator is left to prove otherwise. Not an easy task in comparison to just having to lie about such false allegations.

As far as using the witnesses from the visitation here is how that works;

The supervisor from the McDonalds is being called as a witness by my estranged wife.

The supervised visitation centre uses student volunteers; they make reports about the visits and, are rarely the same people week in week out. The reports can be bought and of course, I will buy the reports just before trial and put them into the disclosure. One of those student volunteers reported how cute and loveable my daughter was with me. This I overheard, was not appropriate for the report and needed to be blacked out. The reports I understand are to be pointed and very dry.

In order to get the precedence before the court perhaps a factum might still need to be created so lv, keep sending anything you might think appropriate under these circumstances.

SillyMe
 
SillyMe,

I presume your case is scheduled for trial. That being said, if the trial is delayed through no fault of either party, this would construe to be a material change of circumstance and therefore you should be able to bring forth a motion to increase your child's access.

The supervised access centre has to keep bona fide records of all the clients and how the visits went. They can be entered into evidence and additionally any particular supervisor can be called as a witness.

As you mentioned, the Judges have already asked some questions to your ex, and I do suspect they have already formed a speculative interim opinion and therefore the need for a trial. Credibility is everything.

Is spousal support an outstanding issue? One of the requirements of being a social assistance recipient is to pursue support from all sources. If by chance they were successful in obtaining spousal support in the interim, I do suspect they would no longer qualify for legal aid and therefore less incentive to litigate if one was paying their own legal fees.

Social assistance recipients are allowed to own a vehicle as it is considered an exempt asset. In regards to the 27K; Perhaps the party transferred the money to someone else's name months prior to applying for social assistance. This amount may even be in your child's name.


lv
 
Yes lv, trial is scheduled for May. The trial was ordered as an emergency and therefore expedited. No argument for delay as it was the first trial date available. I do not see me being successful in bringing a motion now before trial as my last motion for increased access the judge made no order, understood what a hot potato this will become given my history with the court and, quickly became the case management judge. For those that don’t understand why a judge would want to become the case management judge is; any judge that presides on any of the conferences can not preside in trial. You can correct me if I am wrong here but, this is my understanding. To bad too because, the judge I had for the case conference was the most honorable one I have ever been in front of and, there are few I have not been in front of. Plus trial is in only 2 months and there is so much to do before then.

I understand there are only a few senior judges (5 perhaps) in the Ottawa court house that would be able to do trial. Does anyone know the names of them? If this is the case, we are down to maybe one or two that can do the trial, again because of my history with the court. It would be simpler if I could just be supplied with the name of the judge which I am sure the trial coordinator would have to know. Am I entitled to know who will be presiding over trial? I further understand, this type of thing may not be appropriate for this open forum and should be taken to private email.

Yes, spousal support is an outstanding issue. Given that she was/is running a successful business, I am making the argument of her being purposely under employed. Certainly now, there is no incentive for her to seek new clients or even gainful employment. Don’t forget I am a father, already a veteran of the family law slaughter house and so, under no illusions that there is anything less then bankruptcy in my future. Unless you are extremely rich (which I am not) you can’t go through this much court trauma and survive financially. I am lucky I have made it this far in avoiding bankruptcy.

The 27K is in my wife’s name and she did not include it on her original financial statement nor, did she disclose her business bank accounts and, lied about her car loan in her financial statement. It wasn’t until I disclosed all this information in an affidavit that they quickly acted to provided a (almost true) new financial statement days later.

SillyMe
 
Sillyme,

Judges of the East region as listed:
http://www.ontariocourts.on.ca/superior_court_justice/justices_scj.htm#east

EAST REGION

The Honourable Madam Justice Monique Métivier
Regional Senior Judge for the East Region

The Honourable Madam Justice Catherine D. Aitken
The Honourable Mr. Justice Douglas M. Belch
The Honourable Madam Justice Jennifer A. Blishen (Family Court Branch)
The Honourable Mr. Justice W. J. Lloyd Brennan
The Honourable Mr. Justice Richard G. Byers
The Honourable Mr. Justice Michel Z. Charbonneau
The Honourable Mr. Justice Paul J. Cosgrove
The Honourable Mr. Justice Robert J. Desmarais
The Honourable Mr. Jean A. Forget
The Honourable Mr. Charles T. Hackland
The Honourable Mr. Justice Roydon Kealey
The Honourable Madam Justice Johanne Lafrance-Cardinal (Family Court Branch)
The Honourable Mr. Justice Thomas J. Lally
The Honourable Mr. Justice Paul F. Lalonde
The Honourable Madam Justice Maria T. Linhares de Sousa (Family Court Branch)
The Honourable Madam Justice V. Jennifer Mackinnon (Family Court Branch)
The Honourable Madam Justice Helen K. MacLeod
The Honourable Mr. Justice Bernard J. Manton
The Honourable Mr. Justice Robert L. Maranger
The Honourable Mr. Justice Colin D.A. McKinnon
The Honourable Mr. Justice David L. McWilliam
The Honourable Mr. Justice Gerald R. Morin
The Honourable Mr. Justice A. deLotbinière Panet
The Honourable Madam Justice Julianne A. Parfett
The Honourable Mr. Justice Kenneth E. Pedlar (Family Court Branch)
The Honourable Mr. Justice Robert Pelletier
The Honourable Madam Justice Heidi S. Levenson Polowin
The Honourable Mr. Justice Denis J. Power
The Honourable Mr. Justice Michael Quigley
The Honourable Madam Lynn D. Ratushny
The Honourable Madam Justice Cheryl Robertson (Family Court Branch)
The Honourable Madam Justice Giovanna Roccamo
The Honourable Mr. Justice Albert J. Roy
The Honourable Mr. Justice Douglas J. A. Rutherford
The Honourable Mr. Justice G. Gordon Sedgwick
The Honourable Mr. Justice Alan D. Sheffield
The Honourable Mr. Justice Robert J. Smith
The Honourable Madam Justice Anne C. Trousdale (Family Court Branch)

The Judge that held the settlement/trial management conference cannot hear the trial. Cross the ones of the list that you have been before.

I do suspect that the other party never brought forth an interim motion for spousal support as they would maintain the current luxury of health benefits, dental plan that they receive from social assistance. I do suspect that they have only brought forth this claim as the are legally obliged to so under the directives. Additionally, if they received spousal support in the interim, they may no longer qualify for legal aid assistance.

If the individual has 27K in the bank, I don't see how they qualified for legal aid unless they were untruthful in their legal aid application. However, it really isn't an issue who is funding their litigation and what they did to obtain such.

Support of children is paramount. Support of first family children would be given primary consideration, This notional amount of child support comes first then subsequent priority to the 2nd family child. Sometimes there isn't enough left for spousal support.

Your primary concern is to focus on the best interest of the child test and don't be swayed by the secondary issues. Be calm cool and collective as everything you do will be under the microscope. At this point in time a simple expression to your ex could be made into a mountain of an allegation.

If you like to discuss something in confidence and out of public view send an email to:

logicalvelocity@yahoo.ca

lv
 
Thanks again lv

I should end this very long intro. I will try doing so by providing a little wisdom from what I have learned in hopes that it may help others, not with my legal acumen (I have little of that) rather my understanding of the family law system gained over the years. This comes with the caveat of being my opinions, take what you want and leave the rest.

Lv, you mentioned the “best interest of the children” therein belies the problem. Everyone has an opinion of what is “in the best interest of the children” be it; the mom, the dad, the assessors or, even the judges. The children are at times, at the mercy of those opinions dependent on moods, agendas, prejudice, money, humanism, etc. I can go on with an inexhaustible list of emotional metaphors that all come down to someone else’s interpretation of what is in the best interests of your own children. Who so ever can convince them and, have a say in the final outcome is, to play to their emotional metaphors meaning; the ability to make abstract concepts explicit.

Case and point:

In my first case and during the family assessment, I called the psychologist imploring him to call my ex’s house where at the time, the children were in her care. I had suspicions that things were not good there, I can’t remember off hand what had me worried and, probably just a parent’s intuition that the children were a bit off the last time I saw them and, after much pushing he finally did call her at home. He included parts of this conversation in his report whereby he makes the assumption that perhaps, the mom was on something. Ah yeah, here is a part I will never forget; “Doctor if I knew the Pope and, you knew the Pope, you could talk to the Pope?” Trust me; there was no context to this conversation at all. Regardless or this deranged conversation or, the children being at home in her direct care, the doctor still recommended the mother be given sole custody of the children. During this second part of the trial, with the assessor on the stand, the judge put a question directly to the assessor about; my wife being pregnant and how he felt about this new addition in our family would impact the children I was seeking custody of. His opinion was that; it would not be in my 2 children’s best interest’s to live with us because; the arrival of this new child would take away from the care we would have otherwise provided for them. There is so much I would like to say about him stating something like that and, none of it favorable about this doctor’s opinion in this given situation save for one; The unconditional love, joy and, fulfillment I have witnessed these children share for each other, is nothing my estranged wife or I could ever take credit for. I am grateful and stand in awe over their innocent appreciation of each other. Something I can only hope will be theirs long after I pass on to greener pastures.

If you are heading into an acrimonious separation and trial, here are some other things I have learnt along the way;

Don’t be fooled that the family courts are about justice. Family court is about the appearance of justice. A fundamental difference between criminal justice and family justice is this; “As long as justice appears to have been done, then justice has been done”. Everyone I have tried to help (including myself in the beginning) were shocked by their experiences before the court and the orders made against them. If I had a dollar for every time I heard “they can’t do this, its wrong, it’s not true”, well given the above it’s not about being right or wrong; It is appearing to be right. The appearance of justice protects the judges, not the children.

Case in point:

At my last appearance and given that the court had stigmatized me as a pedophile, removed my parental rights and, made a very prejudicial order against me; I asked that the court charge me criminally accordingly. The court stands alone (well and the mother) as there are no concerns from the police, no protection concerns from the CAS nor, the doctors. The court wouldn’t do so because, this would mean moving into a rules based environment (criminal).

This is another reason why the family law industry needs the Office of The Children’s Lawyer Reports and the Family Assessment Reports. They serve the “appearance” of justice in determining “the best interests of the children”.

Case in point:

The first report in my first case, “Office of the Children’s Lawyer Social Worker Report” could make no determination or recommendations with respect to custody or access. This service is paid for by state funds and therefore no costs to the litigants. The only recommendation made by this person was, for a more formal family assessment. Every family law lawyer has their favorite assessors and it would only be natural that they would recommend those they are familiar with. It is also only natural, that these same lawyers would recommend those assessors that have a history of been more partial to their clients in the past. This is another industry that serves to debase parents of their hard earned savings. If a party is funded under legal aid, legal aid covers the costs for that party. Once the assessment is delivered to the court and the parties, the assessor can be called to take the stand. The first thing the court will do is determine the assessor as an expert witness. Once the court has made that determination, they can take the recommendations as gold and thus, absolve themselves of any conscious in making final orders based on those recommendations. Should the future outcome be contrary, there is a scapegoat pre-built-in. This is again the appearance of justice.

In my case, the psychologist assessment report included; describing a picture that my son had drawn of me. The doctor inferred my son had drawn me with horns on my head as a representation of me as a devil. I don’t know if you have ever seen heads or faces drawn by young children but in this case, they use triangle type strokes to create hair. Hanging on my fridge, I had such a drawing which I was very proud of. I brought it to trial and used it as an exhibit to question the assessor (as he didn’t include his picture as part of the report). He didn’t have much to say but, my point was obvious and clear. He never asked my son if they were horns or hair either. No doubt, my vindictive ex had a field day with this and, told our son about what the doctor had said about his drawing of me. He lost his zest for drawing then and his innocent spirit died a little that day.

All the same, the judge made a final order based on this assessor’s recommendation.

If I might, I would like to offer another piece of earned wisdom when it comes to assessments. Regardless if it is the truth, never say anything negative about your estranged partner to the assessors. It might get spun and used against you in labeling you as vindictive. Lord knows any bizarre behavior your estranged partner might have exhibited and directed towards you, couldn’t possibly be indicative or creep into their ability to act as a parent. With respect to your relationship with your ex; As far as the assessors should hear, your estranged partner walks on water.

Wow, I really thought I could sum up my experiences in a couple of paragraphs. I have rambled on at length, only scratched the surface and, not sure if I contributed anything of value.

Thanks lv for your continued contributions to this forum and putting up with my long winded story.

SillyMe
 
Sillyme,

I came across this article in regards to some of the points you have mentioned.

http://www.fact.on.ca/judiciary/benotto.htm

Ethics in Family Law:

Is Family Law Advocacy a Contradiction in Terms?
2 December 1995
by Justice Mary Lou Benotto

...
The techniques perfected in other areas of litigation are being rolled into the family law courtroom. Inflated claims, speculative legal theories and scorched earth tactics are a routine part of counsel's arsenal. Think of what this does to an ongoing relationship.

Walter Olson, in his book, The Litigation Explosion, said:


The unleashing of litigation in its full fury has done cruel grave harm and little lasting good. It has helped sunder some of the most sensitive and profound relationships of human life: between the parents who have nurtured a child...and those whose life and well-being are entrusted to their care....It seizes on former love and intimacy as raw materials to be transmitted into hatred and estrangement....

THE RESULTS IN FAMILY LAW

Family law litigation has now embraced and enhanced these innovations which develop their own character borne of the uniqueness of the domestic relationship. In my opinion, the worst results are found in four areas:

  • abuse allegations
  • the ugly affidavit
  • the winner-loser syndrome in custody cases
  • the use of delay for strategic advantage

ALLEGATIONS OF ABUSE

Domestic violence is abhorrent. I have never found a judicial officer who treated physical cruelty with anything but the seriousness it deserves. However, the term "abuse" has been diluted beyond all proportion. There is scarcely a separated spouse who does not believe that he or she was in an abusive relationship. Abuse is a powerful term. But it is routinely used to describe shouting, badgering, voice raising, walking away when angry. Think for a minute about your private relationship. So as not to raise a bald allegation, the particulars given of the marital discord become very detailed. This leads to the problem of the affidavit.

THE UGLY AFFIDAVIT

The nature of a family law case is that the interim motion is often the most important single event in the proceeding. In the last five years, the number of motions in family law has increased by 150 percent. (Ministry of the Attorney General)

Evidence is presented by affidavit. Human nature is such that it is far easier to lie on paper than in the witness box. As stated in the Ontario Civil Justice Review, First Report, (p. 272) the single greatest complaint about lawyers by members of the public was with respect to the damage to family relationships caused by the allegations in these affidavits - where, it is widely acknowledged, perjury is rampant and, moreover, goes unpunished.

As barristers, we worry lest an allegation go unanswered. We therefore respond in kind and this continues the snowball on its course down that treacherous hill.

WINNER-LOSER SYNDROME

Nowhere is the effect of the litigation process more devastating than in a custody dispute. As stated by Robert McWhinney,

The terror, for parents of a court-ordered custody determination, is not the staggering fees, or the shame of one private intimacy or indiscretion after another being exposed in affidavits, or the confusing punishment of cross-examination; nor is it the fear of losing custody per se. The real terror is that, in the possibility of losing the right to parent their own child, they might thereby ultimately, lose their relationship with their child: the experience of loving their child, of influencing and helping and knowing their child.

The loss of custody relegates one parent to inferior status, diminishes the person's importance in the child's life. Where men lose custody of their children, they are more inclined to drift away from the child. This is not necessarily out of mean-spirited motives but the result of the ongoing and irreversible hurt inflicted during the proceedings, proceedings in which the issue was: who is the better parent. What could possibly touch one's soul more? The custodial parent then often becomes, in effect, a single parent - most often working full time. So in the end, the child is the real loser.

The effect of custody disputes on children is devastating. To again quote Mr. McWinney (p. 101):

The majority of children regard the loss of a parent as the single most negative aspect of separation and divorce. Children also worry that if their parents can stop loving each other, they could surely stop loving them as well; and parental custody battles seldom persuade a child that he or she is greatly loved.

DELAY

If one is concerned only with the narrow adversarial approach to family law, then it is fair to say that delay will, in most cases, benefit one party to the detriment of the other. Our system encourages this:

  • orders for pre-judgment interest are not routine;
  • retroactive orders are difficult to obtain;
  • status quo is an important feature in custody cases;
  • the recipient of a low interim support order, who is frugal and foolish enough not to go into debt before trial will be met with the argument that she (as recipients are usually women) clearly does not need more.

Recently in motions court I heard a lawyer arguing that no interim child support should be ordered because then the wife would have no incentive to settle the case. I found this more appalling than did the Judge, which told me that it had probably been heard often before. Starving children for tactical gain not only earns us a bad reputation, it passes a legacy of hate throughout the family.

There is also the emotional strain and increased legal costs which are suffered by the whole family. Remember that money is never "awarded" but merely re-distributed within the family. Thus, by definition, the family can never be better off after divorce.

WHERE WE GO

We have a responsibility to restructure the system to afford an opportunity to give the public what it wants - an early, fair settlement.

All the statistical studies of our courts confirm that less than 3 percent of cases actually proceed to trial. Why, then, are we operating a system that caters to that 3 percent and not to the 97 percent? There are over 600 rules and subrules we practice by, three deal with settlement, the rest deal with getting to trial. The emphasis in family law should be reversed. Efforts should be directed to the timing of the settlement, education of the litigants, and early intervention and resolution.

But there remains the problem of tactics. As long as these tactics work even once in a while, they will continue to be used. We have an ethical imperative to change our tactics. We in the Advocates' Society strive to the leaders in the profession. So it is up to us. We change ourselves and then by example, others will follow. Especially if we enlist the help of the judiciary with our convincing arguments that these tactics cannot be rewarded.

Also, I have always believed that the most effective tool to implement behavioural change is the order for costs. Not because of the money, but because of the message.

Our system must promote negotiated settlements by enforcing them. It is of critical importance, where compliance with future arrangements is necessary, that parties themselves design the parameters of the regime. Those who practice in the area of family mediation have know this for years.

The law does not necessarily reward those who negotiate co-operative settlements. Recently, the Supreme Court of Canada (L.G. v. G.B., Supreme Court of Canada, SCJ. No. 72) dealt a blow to the sanctity of separation agreements by holding that, on a variation application, an agreement is only one factor - albeit an important one - but only one to be considered. Furthermore, the ability of parties to negotiate on their own without counsel is all but discouraged. It is much easier to set aside an agreement where one party was not represented. The paternalistic view is that no one who signs away a right without calling in a lawyer could possibly have understood what he or she was doing. The public infers from this that our legal system is organized to encourage the use of its own service.

SUMMARY

In summary, we must provide the public - not just our clients, but our friends and families - with a model for the civilized, cooperative reorganization of the family unit and finances on relationship breakdown.

It is not good enough to say, "this is not my job, my job is to achieve the best result for my client, not to achieve a fair result." We are part of a system on which good, decent people rely. We are the custodians of their trust. We must make available dignified, civilized ways to have family disputes resolved. We must, in short, provide a new model for divorce. We cannot be part of the destruction of the social framework and deny responsibility for the social problems that result.

We may not leave the situation better than we found it, but at least we will not leave it worse.


Mary Lou Benotto was appointed to Ontario's General Division bench in May, 1996
lv
 
SillyMe

SillyMe

I have read through your stories of trial and tribulations and can see so much of what we have and continue to suffer through. An ex with allegations that the court sees as solid gold where as we can documents and disprove but rarely ever get acknowledged.
Tests and counselling coming out of our ears and all in our favour, but still the accusations come, still the courts believe the mother not the father. It seems that in Canadian Family law the fathers, once they separate from a child, are automatically deemed ugly untrustworthy people, not worth a lick of spit and most certainly not worth the love of an innocent child. An innocent child who is ultimately the one to shoulder the burden of parents who cannot see eye to eye, terribly awful.
 
I can agree lv for the most part with this fine piece of writing. I strongly oppose the part about court costs. There was no factoring in Legal Aid or what recourse a parent had if there was a mistake in the making of a final order.

Case and point

In my first case there was a cost judgment made against me for $45,000 in court cost ++. There were 2 reasons for the order for costs;

1. Inhibit the losing litigant (me) from continuing with any further litigation
2. Create a precedent for awarding more then the billable Legal Aid amount

The court knew full well I was unable to pay such a large sum of money. The court had all my “real” financial information and therefore did so knowingly to inhibit my capacity to continue regardless of whether it was “in the best interests of the children.” The children and I were left to suffer the consequences; the children the abuse and the parent made powerless to help. I can only speak as the parent who had to suffer in silence. When the change in custody did occur, they changed the entire final order save for the order of costs against me. The children came into my sole care 18 months after the final order and with it; they inherited this burden placed on their now custodial parent. I am continually reminded by the court that if I want to change that order, I need to seek leave to appeal but, that time has now expired. There is another way to change the order, have the matter brought back before the justice that made the order in the first place. The court continues to deny my request in doing so.

This case had my estranged wife using the services of Legal Aid. The final cost order was based on success. All the while paying my own legal expenses, let’s forget for a moment that I am a father and, I was successful. An order for court costs is made against the mom for $45,000. Where does my big win fall come from?

I still am unable to afford to pay this order for court costs; it is still on my credit record and inhibits me from getting a charge card, loans, etc. Stuck without legal representation because, I can’t afford to drive myself further into debt to pay for a lawyer. In a way, I might get lucky and stave off bankruptcy until the next order for costs is made against me or luckier still, I could win and have court cost made against the legally aided mom and this will go towards and come from….the kids? I can barely wait.

Either this family law process is about the best interest of the children or it isn’t. I would like to hear good argument from someone on how the court costs issue works in the best interest of the children.

As far as affidavits go, I noticed between the ex wife 1 and ex wife 2 the exact same allegations. Right down to the exact same wording. There must be this “top ten list” of things to say about the other person in family law affidavit materials. I call this The Family Law Rules Missing Chapter, not available in schools and, only available when you start practicing family law.

SillyMe
 
SillyMe,

I read a few cases where the courts awarded costs based upon the solicitor rates as listed in the Courts of Justice Act dependant on years of experience notwithstanding the fact the they were retained and quite willing to work at the legal aid rate.

On the flipside; Just because a party is represented by legal aid, is not a valid reason to be unreasonable and to have costs awarded against them.

lv
 
Ha, your funny lv;

Case law is a funny thing, it’s important for the administration of justice but behind each case are real people or, in my case real children also. Even this very young forum when searched, returns a hit on cost case law in my case. No surprise, it’s in a post from you. No surprise that the true story and the final outcome never got reported nor ever will it, save by myself. It was a reported case in canLII for all of about 5 minutes, and then disappeared. It was such an important piece of case law that the Law Times or whatever that premier law journal is called wrote an article about it. The order for costs was such a fine piece that the judge that made that order, wrote a paper describing how to write orders for costs. No one ever thought I just might have been telling the truth or, became blinded by their hidden agenda. Maybe they just forgot about the children, I don’t know. Personally, I don’t think court cost has any place in family law certainly not as a deterrent for litigating. I didn’t ask to go to court, I am forced there as the last vestige in protecting my children and my parental rights. Man, I have burnt in hell for years for my children, its bigger then me and, I do it again because there is no price on the heads of my children. I do it solely for the love of my children.

Ha, love is what got me into all this trouble (I wonder at times if it isn’t overrated) and, I’ll be damned if love won’t see me through it.

Sorry lv, I hope you don’t think I am poking at you. I just don’t understand the context of your post.

SillyMe
 
Sillyme,

Interesting.

Do you know who pulled your case at Canlaw? It may be still reported somewhere else. I believe I have a copy of the report you are mentioning on the issue of costs.

lv
 
I have a new saying; If divorce is hell then, I own a piece of the place (bought and paid for).

I have been hanging around reading although, pretty much keeping myself and my stuff offline. It was suggested that I be very careful about posting to a public forum while going through my personal woes. I did receive a couple of emails asking that I let a few members know how things turned out.

Interestingly enough I found a wonderful resource on Canlii here;

http://www.canlii.org/en/on/onsc/doc/2007/2007canlii46697/2007canlii46697.html

This order came up while doing a search on Parental Alienation. Personally, it should be shared with any vindictive mom that wants to sever a parent child relationship with the child’s father. It can be used as precedence where, a status quo was created by false allegations and kept by the continuous use of false allegations of sexual abuse against the father untoward his daughter.

My personal opinion of the whole affair was; the court finding a new low. Don’t blame the mom for the issue’s, blame an innocent little girl. Stay tuned for the untold story……

I wonder if the court cost order will be posted on Canlii? I bet you a dollar you won’t see it there. Speaking of a dollar, this is the amount the father had asked for. The other side asked for thousands of dollars…lol….the court ordered no costs…lol….not even the one dollar the father asked for his troubles.

I don’t recall what I wrote previously and, I can’t bring myself to review it either. It’s just that it seems so long ago. I am currently working on a behind the scenes story. I don’t think this forum would be the best application for disseminating the story while, my aim is to close this post I felt I left unfinished.

So besides this order, what does 4 major allegations (meaning the necessity and involvement of doctors, CAS, police, etc) of sexual abuse upon your own kin get you? Well how about another major allegation 2 weeks after the final order is issued. Lose of contact again, police interrogation again, etc. How about perpetual Case Conferences? What an emotional roller coaster it has all been. I’m sure we would all settle for some dignity.

There are those in my counsel of conscious that attribute this case as a complete success for the family law industry. The father is bankrupt, his children have lost yet another house, he is in debt to the tune of thousands of dollars and, he is back in court yet again not weeks after the final Order was issued. The only thing left is his job which, looks like it will not survive another round. More Guy’s, more Hadleys and, more tragedies abound.

It’s not fun fighting on an inferior team, that of being a Canadian father. The only thing I can do is hang my head in shame. Another Case Conference come and gone, my mention of the material change may as well have been said in Swahili. It was never mentioned again and, not even counsel for the other side put up any argument on the Material Change. It’s almost a sport….what do you do for a living? Oh, I pay to play family law. It is one of those hunting human games. You release the father and his family into the family law jungle, then you start shooting at him, not to kill but maim slowly, you use any method…lawyers, assessors, CAS, police, money and, unlimited resources. If you catch him, you get to slap him personally and then, throw him back and do it again. Kind of like catch and release.

If there are questions, I will do my best to field those. I have written my heart out, I am still writing like my life and, the life of my family depends on it. As soon as I find a home for the full story, I will get back to this site with an address. I guess this wasn’t the end but the beginning of the end….

Some of the story highlights I have been writing about:

The allegations
Legal Aid (I qualified….I didn’t qualify)
The Expert witness that didn’t show and, I was barred from communicating with…
The lies – If a person admits under oath, on the stand, they knowingly signed a false affidavit; does this criminal behavior matter in Family law, apparently not.
A few things I have learned along the way.
And many, many more…

For now, I am just another Canadian father being totally denied justice here in the Nation’s capital. For those that are struggling to make sense of our Family law system….stop. For those tired, rest, stay strong and, never give up the fight for your children.

God Bless everybody in this mess, keep your chin up….

SillyMe
 
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