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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 04-11-2010, 03:33 PM
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Default Admitting evidence

Hi all,

I'm preparing my evidence, as my ex's lawyer has made it clear that she'll be filing a motion "for a few days after the case conference", which is this Monday. Can it happen that soon in Superior Court? I could have sworn that someone said on here that it can be many months for motions and such to be heard..

I'd like to know how to get evidence admitted. I mean, I've got a lot of it, and my common sense tells me that I'll likely have to swear by affidavit that the (attached) piece of evidence is authentic, and likely spell out in the affidavit, what the evidence is. Do I simply attach the affidavit and evidence in my answer or reply and that's it? Or do I need to get the evidence admitted first? If so, does that have to be done by having the other party consent that the evidence is authentic? I've read the rules and I'm confused.

Shea
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Old 04-12-2010, 08:35 AM
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No offence, but if you are going to self-represent, you should really learn about all this stuff ahead of time...

CLEO Guidebook to Self Representing at Superior Court

Law Help Ontario Will help you with forms and give free 1/2 hour lawyer consultation; do download the application ahead of time and get there at 8:00 am.

Family Law Information Centre Similar service to Law Help, try both.

You can find a Law Help at the main floor at 393 University and a FLIC on the 10th floor. You can also ask for duty counsel on the 10th floor who will help you with forms.
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Old 04-12-2010, 09:53 PM
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Not to overwhelm - I may add you better heed the Family Law Rules - Its broken down in Sections, which you have to pay particular attention to each section and Form Numbers being exchanged between the parties -- and further attention to what is Commissioned, Served, and Filed with the Registrar. Weigh that against your position in Case Management. It appears, a few curves forthcoming with potential short serve tactics.

Last edited by logicalvelocity; 04-12-2010 at 10:10 PM. Reason: in hindsight
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Old 04-12-2010, 09:54 PM
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Not to overwhelm - I may add you better heed the Family Law Rules - Its broken down in Sections and you have to pay particular section with respect to the Form Numbers being exchanged between the parties and what is Commissioned, Served, and Filed with the Registrar. Weigh that against with respect where your at in Case Management. It appears they are tossing a few curves and forthcoming short serve tactics along the way.
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Old 04-12-2010, 10:08 PM
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Once there has been a case conference, then a motion can be scheduled. It sounds like they will be bringing an emergency motion, because it would be several weeks, or even months, before a "regular" motion would be heard.

The other lawyer may be trying to initimidate you. You are going to have to be careful because you could end up a deer in the headlights trying to learn this stuff on the fly.

You will well and truly kick yourself in the ass if you get blindsided at court with an interim order that establishes a status quo from which you may be hard pressed to depart. Consider getting some legal representation (quickly!) if they slap you with a motion on short notice.
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Old 04-12-2010, 10:37 PM
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I showed up for the conference this morning, and we weren't on the docket. I then asked the Clerk, who said that I was booked for May 3rd (which is the date I requested of opposing counsel in a letter late last week - they went and changed it but hadn't informed me of the change). So, all is well for now. I also spoke with the clerk about timing of motions, and she said that unless it's not a lengthy motion, it can be scheduled within a few days, the docket isn't backed up at all.

So who knows.. I'm pretty well prepared in terms of my argument(s) and the evidence I'll need to back them up, and dispute any claims made by my ex, I'm just trying to catch up on procedure, but am doing ok, thanks to this site and others information I'm finding by digging around.

I really just need to know about evidence and testimony. From what I've read, and what my common sense tells me, I'll can only speak to items or facts I can prove, and thus enter into evidence. I'd think that it's not just as simple as bringing in an email or document, that I'll have to attach affidavits to each, thus authenticating or swearing that they are authentic. What I read that was confusing, was a subsection of the rules that stated that I can ask the opposing party to agree that the item is authentic or genuine. That threw me for a loop. Another thing that threw me, was a friend who self-rep'd in family court, who said she didn't need to do any of that, she simply attached some emails and files to her answer(s) and/or motion(s) and that was it.

Stupid question time: I've been advised that my ex will accept my proposal to enter into a mutual restraining order, so I'm drafting an order and consent for his lawyer to review. In the meat and potatoes of the proceedings so far, (the application and response), I've been the Respondent. My common sense however tells me, that I would be down as the Applicant of the Order, and the Respondent of the Consent and it'd be in the reverse, on my ex's Order and Consent. Is this right?

Thanks,
Shea
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Old 04-12-2010, 11:27 PM
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Quote:
Originally Posted by digitalkreation View Post
I showed up for the conference this morning, and we weren't on the docket. I then asked the Clerk, who said that I was booked for May 3rd (which is the date I requested of opposing counsel in a letter late last week - they went and changed it but hadn't informed me of the change). So, all is well for now. I also spoke with the clerk about timing of motions, and she said that unless it's not a lengthy motion, it can be scheduled within a few days, the docket isn't backed up at all.

So who knows.. I'm pretty well prepared in terms of my argument(s) and the evidence I'll need to back them up, and dispute any claims made by my ex, I'm just trying to catch up on procedure, but am doing ok, thanks to this site and others information I'm finding by digging around.

I really just need to know about evidence and testimony. From what I've read, and what my common sense tells me, I'll can only speak to items or facts I can prove, and thus enter into evidence. I'd think that it's not just as simple as bringing in an email or document, that I'll have to attach affidavits to each, thus authenticating or swearing that they are authentic. What I read that was confusing, was a subsection of the rules that stated that I can ask the opposing party to agree that the item is authentic or genuine. That threw me for a loop. Another thing that threw me, was a friend who self-rep'd in family court, who said she didn't need to do any of that, she simply attached some emails and files to her answer(s) and/or motion(s) and that was it.

Stupid question time: I've been advised that my ex will accept my proposal to enter into a mutual restraining order, so I'm drafting an order and consent for his lawyer to review. In the meat and potatoes of the proceedings so far, (the application and response), I've been the Respondent. My common sense however tells me, that I would be down as the Applicant of the Order, and the Respondent of the Consent and it'd be in the reverse, on my ex's Order and Consent. Is this right?

Thanks,
Shea
If it was me...

File your Exhibits as Schedules to your Case Conference Brief. Certify them to be true copy. The Brief is disposed of at the end of the conference and does not form as part of the record.

The exhibits or documents will be entered into Evidence by Affidavit at some point at fourth coming motion.

Restraining Order is a double edge sword especially if kids are involved in the mix. You might want to rethink consenting to such quasi criminal default sanctions.

Thats what I would do...

Last edited by logicalvelocity; 04-12-2010 at 11:30 PM. Reason: typo
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Old 04-13-2010, 12:25 AM
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Quote:
Originally Posted by logicalvelocity View Post
If it was me...

Restraining Order is a double edge sword especially if kids are involved in the mix. You might want to rethink consenting to such quasi criminal default sanctions.

Thats what I would do...
Thanks for the advice. I'm not sure I see the restraining order in the same light, but you've given me something to think about.

The way I see it, is that I'd likely not get a restraining order against him on my own, because there isn't much evidence that he's threatened or harrassed me. I really do want him to stay away, and I have no intention of seeing him, going to his house, work, etc. I'd think a court would see a mutual restraining order as a "wash" with both sides being told to stay away from the other. I'd think it'd also help my case for Sole Custody, since the father is now stipulating that we cannot work together at all.
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Old 04-13-2010, 03:29 AM
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Quote:
Originally Posted by digitalkreation View Post
Thanks for the advice. I'm not sure I see the restraining order in the same light, but you've given me something to think about.

The way I see it, is that I'd likely not get a restraining order against him on my own, because there isn't much evidence that he's threatened or harrassed me. I really do want him to stay away, and I have no intention of seeing him, going to his house, work, etc. I'd think a court would see a mutual restraining order as a "wash" with both sides being told to stay away from the other. I'd think it'd also help my case for Sole Custody, since the father is now stipulating that we cannot work together at all.
Well your perception about restraining orders has no basis in court experience. You are a layperson and you could very well get the judge mad at you for asking for it without cause.

You're in a minefield of procedure and could spend dozens of hours researching rules and still feel silly at court because you are walking in without any experience or feel for the process.

I'm not saying you can't do it. But the playing field is by no means even when you're up against someone who does this all day every day.
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Old 04-13-2010, 08:16 AM
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If you are thinking of self representing, you have to read read read, treat everything like a textbook and memorize it. Don't just read about your own problems, read about family law in general so you have a sense of where you fit in and if your issues are important or trivial to the courts.

Read Canadian Family Law - Kronby, Surviving Your Divorce - Cochrane and Tug of War - Brownstone, they are all Canadian and available at Chapters/Indigo. Read them twice, then read them again.

Go to Family Court several days in a row and sit in on public hearings, listen to the judge, listen to the lawyers, listen to the questions and testimony. If you aren't going to do that you will be walking into a minefield blind folded.

Call the Law Society of Upper Canada referral service and get a half hour consultation (it's free now but you can only get one referral), make a list of questions and don't fill up your half hour complaining about what a shit your ex is. Stay on topic, get some good general advice on whether you actually have a case or not.

Go to the Family Law Information Centre (at most family courts) and again get your half hour consult, also ask as many questions at the desk about forms and proceedure as you can. Get there early and be prepared to wait in line.

Be prepared to spend a week just hanging around the courts and learning about how to file documents and how many days you have to respond and how to get a court date and file a motion etc. Ask for the Duty Councel who can help you with forms but is not allowed to give legal advice. (Use the Duty for questions about proceedure and FLIC for advice about your case.)

Go to Canlii and use the search feature to look up cases similar to your own, see what the judges wrote about them, read and understand the decisions and think about why the judges decided what they did.

Canlii you can also look up things like the Family Law Act and Family Court Rules.

The forum here can help with some stuff, but it doesn't replace getting direct experience and actual time spent at the courthouse. We are all anonymous amateurs and you shouldn't just trust what some guy on the internet says.

Do all of this and you will still not be a lawyer. Always keep your humility and assume you are wrong about some things and realize you will make mistakes and triple check everything you do.
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