procedural unfairness

[frustratedmom]

Hi everyone

I am new at this. I searched for a similar threat but haven't found one. My case was gernally killed, due to the negligence of the scheduling office. There was an order made against me while I was sick in the hospital for a potentially serious health matter. The judge and my ex's lawyer were immediately informed by my husband that I was in the hospital , yet the motion proceeded without me. I have found this entire thing to be very one sided. My ex has lied in virtually every paragraph on his affidavit, and even got the kids to lie , hoping if a judge views 3 affidavits, all saying the same thing, he or she will take it as fact. I am so frustrated and angry because he involved the kids, and as his past history with litigating with me, has lied on everything. He has even managed to alienate the children for me. I was supposed to move to BC, and leave my daughter with my parents for 4 months to finish off her school year and then pick her up in June. During this time, my ex managed to turn all the kids against me and I'm feeling a huge sense of betrayal , that he had these kids perjur themselves.

I had joint custody with my ex for the 14 year old and sole custody for the other two. With the joint custody, I was given final say as to where she would reside, etc and he was to hire a mediator at his own costs, if he disputed the move. I did the right thing, sent him the proper notification and he chose to take it to the courts. All of a sudden an order gets slapped on me, and I don't understand how they can do this, if I'm in the hospital. I can't be at two places at once and this was an emergency trip to the hospital. The other side was going to ask for an ajdournment anyway, but as soon as they found out I was hospitalized, they decided to go for the kill and took advantage of the fact that it was not possible for me to be there. Now I have a summary judgment placed on me, which I have to appeal.

The courts have deprived me of my rights to get a motion. I made 9 requests in total from March to June, asking for a motion to set aside that order and nobody acknowledged any of my requests. I cannot afford to fly to Toronto for every little thing and I'm wondering if anybody has any suggestions on how to investigate what happened within the scheduling office and why my requests were ignored. It's almost like someone was preventing me from being heard, and I even had one lawyer tell me, that this was highly unusual and that someone must have it in for me , someone influential. This is like a nightmare and due to my financial constraints I cannot afford to appeal and will be seeking a legal aid certificate, but the problem is that nobody wants to take a legal aid appeals case, especially when the client is out of province. There is definately something fishy going on and why I was not acknowledged. I know when my ex's lawyer asked for a motion, she got it immediately, yet mine were ignored for 5 months. Any inpute would be appreciated because my case could have been easily won on its merits and thsi is something they were afraid of, so they pushed for a summary judgment to prevent a trial, yet a trial is what i need to challenge all the lies put against me.

[Mess]

I'm not trying to be hard on you but you need to be realistic.

If the children wrote affidavits supporting their father's position, the courts are going to go with that. That isn't proceedural unfairness. If the situation were reversed and they supported your postition you would certainly expect the courts to support you.

Children will make up their own minds and they know both you and their father. If he has "turned them against you" then this isn't something that happened overnight or in a vacuum. It may have been unfair, I don't know you or them or him, but their feelings are a reality.

You sought to move the children from Toronto to BC and he had every right to stop the children from moved that distance. You needed to make a sufficient case for it, apparently you didn't.

From your description he likely got an emergency motion because the move was pending. What you are seeking is not considered an emergency by the courts.

No one can stop you from moving, but the other parent does have a right to stop the children from being moved such a distance.

You needed to get a court order authorizing the move BEFORE you moved. This was a proceedural error on your part.

An existing agreement giving you sole custody of the younger two, and "final say" for the eldest does not extend to moving them out of the province. That cannot be finalized by any agreement. Custody may ALWAYS be reopened with a material change in circumstance.

You will not be able to move the 14 year old against her wishes regardless of what you seek in court. No court will authorize that if she does not wish to move out of province.

You do not have "rights" to seek a motion whenever you feel like it. You may not get an emergency motion because there is no pending emergency; your ex is not about to move them to PEI next week. You have the right to go through the process in the same way that me and everyone has to.

You may be blocked from making motions if you have been seen to be unreasonable and excessive. I am not reading your case history so I can't comment any further. Your ex also has rights to not be dragged into court repeatedly on motions that are repetitive and have already been decided.

Motion orders are decided by the affidavits you submit. The judge reads them and makes a decision accordingly. If some elements are in dispute the judge may ask questions but if your affidavit is clear and complete there should be nothing requiring your presence. If you had been there you would have had the same result. You were not denied any rights.

You are going through all of this because you are not honouring the father's rights to access to the children, not honouring the children's wishes, and by making plans and moving without getting the court authorization you needed first. If you had done so before moving, you wouldn't be trying to fight a motion in a Toronto court from BC.

You need to be more realistic about the situation you created and stop blaming everyone around you. I know that sounds harsh, but there is no other advice to give.

[Carolann1967]

You can look into making a complaint with the ombudsman apparently they are supposed to be really helpful. My girlfriend had a complaint filed against FRO they kept denying her court papers to enforce the child support payment, and they had her running back and forth from Toronto to Goderich getting new court orders to have it enforced and each time she did this, they said the wording was incorrect and do it this way and when she would they would refuse it and request it another way. Hope that helps.

[Looking4Answers]

Children do not necessarily "know" their parents as individuals. Whatever they had written on the Affidavit is their version of what they either believe or what they have been made to believe.

Unfortunately, anyone can and do lie under oath and in their Affidavits, it is a sad reality especially in family law.

Mess is correct in saying that it was probably an emergency motion because of the move and it would of been better if you had permission from the courts to move the children to another province first.

I understand the need in some divorces to get as far away from your ex as possible and move forward with your life. To move to another province will be difficult if the ex is not in agreement with the move.

The Ombudsman does help with issues with FRO and hopefully can assist you or at least lead you in the right direction.

As for the children, you cant change what they said or wrote, but you can decide what is BEST for YOU. The sooner you figure out what that is the easier it will be finding moments of peace while dealing with the judicial system in Family Law.

Peace and happiness