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Different laws for men and women

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  • Robert Brown
    UPDATED 27 August 2003 - Toronto (Canadian Press) A new trial has been ordered for a southern Ontario woman who was acquitted on abduction charges two years
    Message 1 of 1 , Aug 27, 2003
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      UPDATED 27 August 2003 - Toronto (Canadian Press)
       
      A new trial has been ordered for a southern Ontario woman who was acquitted on abduction charges two years ago.
       
      The Ontario Court of Appeal set aside Carline VandenElsen's acquittal.
       
      At the time of the trial, legal experts  expressed surprise that the "necessity defence" - which allows a jury to acquit crimes committed to avoid imminent harm or danger - succeeded in VandenElsen's case
       
      Two Laws in Ontario
      ___________________________________________________________

       It's official: Ontario has a different law for men and women.

      On the 14th of Oct., 2000, Carline Vanden Elsen cashed her RRSP's, cleaned out her bank account, put her triplets who had been placed in the custody of their father, in the trunk of her small car and drove across the North-American continent from Ontario, Canada, to a slum in Mexico.

      Slightly more than a year later, on the 26th of Oct. 2001, she was acquitted by a jury from any wrongdoing.

      Question: What was the defence that the jury, with considerable guidance from the judge, accepted?

      Answer: She was afraid that, because of her irrational behaviour, she would lose all access to her children.

      Bill Flores, president of an organization called "Children's Voice" said:
      "Fathers who have fled with their children in similar circumstances have received very harsh jail sentences, even when they have not physically harmed their children."

      Carline VandenElsen had nothing to fear. In spite of abusing the judges she has won one court motion after another, the latest being that she now has the right to distribute a book in which she tells her version of the events though there is an existing court order which forbids the parents from denigrating each other in front of the children or the public.

      We now have a case where a father who took his child to his native Iran is jailed, as according to the presiding judge, Mr. Justice(???) John Hamilton of Ontario Superior Court: "[Mr. Pasdari] may have been a good father and husband who was heartbroken over his wife's repeated cheating, he had no right to make the child a sacrificial lamb in their marital fight . He committed a criminal act. [I am] sending a message to parents that you don't deprive the other parent of a child" (per Jane Gadd, The Globe and Mail, Jan. 3. 2003)

      A slightly different wording is offered by Gretchen Drummie on the Canoe (the Sun Media, Jan. 3, 2002): "every father and every mother has to obey the laws of the land. You don't deprive your spouse of the custody of children."

      Judge Hamilton jailed the father for three months on top of 16 days pretrial custody, and declined to impose a conditional discharge, noting parents "have to get the message jail is the only sentence that would be adequate."

      Indeed. Only if the abducting parent is the father. The father was also
      given three years probation including a condition that he surrender his
      daughter's documents and have no contact with her unless a court orders access.

      Carline VandenElsen was given increased, unsupervised access in each court motion that she brought up.

      Ontario has emerged as the promised land of the female who pops her finger in her mouth at the judge. Nothing like gender equality, is there?

      "Carline Vandenelsen, 39, will be sentenced for the contempt next Friday after putting her finger in her mouth and "popping" it while a judge was giving various rulings yesterday.

      However, Ontario Superior Court Justice John DeSotti then went on to grant Ms. Vandenelsen unsupervised access to her children every other weekend and five days at Christmas.

      The judge, who will revisit the access issue in February, also ruled Ms.
      Vandenelsen can stop paying child support.

      Judge DeSotti ordered Ms. Vandenelsen and her ex-husband, Craig Merkley, to stop denigrating each other in public" [Michael Higgins, National Post, December 8, 2001]

      ---------------

      Related articles:

      TORONTO SUN
      Friday, January 3, 2003

      Father who nabbed girl jailed

      By GRETCHEN DRUMMIE, COURTS BUREAU

       Merhdad Pasdari claims he abducted his young daughter and tried to take her to Iran in a bid to lure his cheating wife away from her lover's "spell" and rekindle their failing marriage.

      But Justice John Hamilton said yesterday that "every father and every mother has to obey the laws of the land. You don't deprive your spouse of the custody of children."

      He jailed Pasdari for three months on top of 16 days pretrial custody, and declined to impose a conditional discharge, noting parents "have to get the message jail is the only sentence that would be adequate."

      Pasdari, 38, of Aurora Court, pleaded guilty to an abduction charge. He was also given three years probation including a condition that he surrender his daughter's documents and have no contact with her unless a court orders access.

      FLED IN TEARS

      After the sentencing, his wife, Afsaneh Tehrani, fled court in tears.

      Court heard that on March 28, 2000, Pasdari, a computer programmer, picked up his daughter early from school, packed up their clothes, jewelry and $40,000 from joint bank accounts, and caught a flight to Tehran with an Amsterdam layover.

      Tehrani obtained an interim custody order and Toronto Police tracked the pair down. Dutch authorities boarded the plane in Amsterdam and arrested Pasdari.

      Pasdari's lawyer, Reid Rusonik, explained that it was a "ploy" by his client to get his unfaithful wife back.

      Rusonik said Pasdari had planned to return to Toronto. Hamilton, however, was skeptical, saying that the missing money gives him a "reason to believe it's permanent."


      ---------------------
      GLOBE AND MAIL

      By JANE GADD
      COURTS REPORTER

      Friday, January 3, 2003 - Page A10


      Mehrdad Pasdari, a Toronto father who tried to spirit his eight-year-old daughter to his Iranian homeland in a bid to win back an unfaithful wife, was jailed for three months yesterday.

      While Mr. Pasdari may have been a good father and husband who was
      heartbroken over his wife's repeated cheating, he had no right to make the child "a sacrificial lamb" in their marital fight, Mr. Justice John Hamilton of Ontario Superior Court said yesterday.

      Mr. Pasdari, whose boss at a computer-network firm described him in court as honest, hardworking and an old-fashioned family man, also faces three years of probation and must surrender his passport. He pleaded guilty to child abduction.

      "He committed a criminal act. [I am] sending a message to parents that you don't deprive the other parent of a child," the judge said.

      Mr. Pasdari appeared stunned as he was handcuffed yesterday, while his wife Afsaneh Tehrani sobbed and fled the courtroom.

      Lawyer Reid Rusonik had asked for a conditional discharge so that Mr.
      Pasdari would not be prejudiced in the couple's bitter custody battle in
      Family Court.

      He said his client did not know he was committing a serious offence when he boarded a flight for Iran via Amsterdam with the child. He had also helped himself to half the couple's assets, including $40,000 in cash and some Persian rugs and jewellery.

      He and his daughter were seized by authorities on the tarmac at Amsterdam Airport Schiphol on March 29, 2000, after Ms. Tehrani obtained an instant interim custody order from the Ontario Court.

      Mr. Rusonik argued that Mr. Pasdari had not intended to stay in Iran, but just wanted to get his wife's attention.

      "She understood it was a ploy," he told Judge Hamilton. "This is the kind of guy who wouldn't flout a parking ticket. . . . He's not a raving
      fundamentalist. He loves Canada, he loves his job. He just has the
      misfortune of being from an unpopular place."

      But Crown prosecutor Gregory Scott, who asked for a six-month jail term, argued that the abduction was a premeditated act that required public denunciation.

      The court heard that Mr. Pasdari and Ms. Tehrani were born in Iran, where they met and married.

      While still in Iran, Ms. Tehrani fell in love with Mr. Pasdari's older
      brother, who was married and living in England.

      The marriage weathered that difficulty when Mr. Pasdari agreed to move the family to Canada, but once here Ms. Tehrani began an affair with a co-worker, Mr. Rusonik told the court. Mr. Pasdari still wanted to continue the marriage.

      ------------------
      NATIONAL POST
      December 8, 2001

      Unsupervised access for triplets' mother
      Cleared in abduction: Stratford woman also found in contempt of court

      Michael Higgins - National Post, with files from The Canadian Press


      A mother cleared of abducting her eight-year-old triplets yesterday won limited unsupervised access to her children but was also found in contempt of court.

      Carline Vandenelsen, 39, will be sentenced for the contempt next Friday after putting her finger in her mouth and "popping" it while a judge was giving various rulings yesterday.

      However, Ontario Superior Court Justice John DeSotti then went on to grant Ms. Vandenelsen unsupervised access to her children every other weekend and five days at Christmas.

      The judge, who will revisit the access issue in February, also ruled Ms.
      Vandenelsen can stop paying child support.

      Judge DeSotti ordered Ms. Vandenelsen and her ex-husband, Craig Merkley, to stop denigrating each other in public.

      Last night Mr. Merkley's wife, Jan, said her husband was "disappointed" with the rulings, but did not want to comment further.

      In October, Ms. Vandenelsen, of Stratford, Ont., was acquitted of parental abduction charges by reason of necessity.

      The former high school teacher admitted smuggling her children, Peter, Gray and Olivia, into Mexico but said she acted because she feared losing access to them.

      "I acted in the best interests of my children. The circumstances were such that I had to act in this way and no other way," she said later.

      Mr. Merkley, 45, said after the decision that it had killed his faith in the
      justice system.

      "I think they have just declared open season for anyone who wants to abduct their children. It sets an absolutely incredible precedent," he said.

      The province has launched an appeal, arguing that the jury was not properly instructed.

      Ms. Vandenelsen already faces a contempt of court charge over taking the children to Mexico but that will be dealt with after the criminal process has ended.

      In June, the same judge granted Ms. Vandenelsen two supervised visits to her triplets while she was on bail awaiting trial on the abduction charges.

      Although he said he had "grave concerns", Judge DeSotti said it would not be in the best interests of the children to keep them from their mother.

      Ms. Vandenelsen stormed out of the courtroom before the judge finished reading his decision.

      Last night, Ms. Vandenelsen declined to comment on the case.



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