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Old 10-20-2012, 01:45 PM
Unevenplayingground Unevenplayingground is offline
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Originally Posted by wife#2 View Post
Thanks for this post about emergency motions. It is interesting to me because my husband has been to 2 in the past 2 years, neither of which met this criteria (as far as we can tell). I would love your opinion on the situation, as well as to help anyone in a similar situation. I find often in this system you can do all the research you want, consult with lawyers, but in the end, complete opposite. As far as we can tell from being in court repeatedly for the past 2 years, it all depends on the judge you get, which is why this system is completely broken!
In Aug 2011 my hubby's ex moved. Desite my hubby sending emails requesting that they discuss her move and the child (boy, now 10) school for the following year, the ex refuses to tell us where she is moving. The child is crying (no lie) all summer to us, confused what is happening. Litterly asking us where mom is taking him. So, one day after she moves (Aug 17) and 2 weeks before school, she emails hubby to say where she moved (30 min away) from both current school and us (we bought house 2 blocks from son's school). She tells him which school she wants him to attend in new neighbourhood and tells him to 'co-operate'. Access at this time is approx 45% hubby, 55% ex (temporary agreement, court signed). So of course hubby refuses this. Child has been in same school since kindergarden, 2 blocks from us. Ex calls immediate 'emergency' motion. 3 days before school, court. For once in 2 years, we win!!! Child stays in school near us and judge changes schedule to 50/50. Also orders OCL at our request. Costs are still to be determined in this matter.

Flash forward one year. OCL does their report over the fall/winter. Unfortunately, OCL recommends child primary residence be with mother and change schools to her location (I can write a 10 page agruement over this, but will try to stay on topic). Will just say that the only reason OCL gives is that hubby works shifts, and this can be confusing to child (BS, and we think extremely discrimatory against shift workers, but thats another topic for another time!) So OCL report is out in Feb. Our lawyer (who we use for advise, not court, can't afford anymore!) tells us they will have to have a case conference on this matter. So we wait. Ex and her lawyer know hubby is against new school or change to access. Aug 2012, ex calls 'emergency' motion to change school and access based on OCL report. No case conference, no nothing. We consult 2 lawyers and do a ton research, all seem to say status quo is never changed on an emergency motion. Needs to go to trial, need to have case conference, etc. This is pointed out in our affidavit, as well as that there is no harm at all to child to stay in this school until a proper trial, case conference, whatever.
End of story goes, ex wins, change of access from 50/50 to 30/70. Change schools. And worst even yet, awards her costs at $3000. Were we wrong to not just agree with OCL report? What happened here? Thanks all.
We recently went through something similar, except we were the ones moving out of province (work related, no choice), my step-son wanted to move with us. The son had to stay with the mother until the OCL/"social worker" made a decision. So for months the son was being told by the mother that if he moves, she can't afford her apartment anymore, etc, etc. So basically in the end, the son (who was almost 12 at the time) said he didn't care where he went. So based on this, the OCL and their so called social worker said he would stay with mom. There was a case conference with us, but there was no report done up by the OCL/social worker, they told us they will only do a report if it is going to trial. We were told if it went to trail (by our lawyer) that we would lose, judge doesn't usually go against the OCL/social worker, and that we could end up paying his ex's costs. Since we couldn't afford our own lawyer's fees we didn't go further. The system does favour the mother in most cases.

I don't understand why the case conference was not set up. Was the OCL not completely finished with interviews, etc?

I did find this whole process very confusing. I don't know if I helped you, but thought maybe hearing our story might help somehow??

I think you are on to something when you say it depends on the judge, unfortunately. The system is broken.
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