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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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  #1 (permalink)  
Old 06-30-2017, 06:33 PM
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Default Application without date?

Hi everyone,

It's been a while. Very long story short: ex's addiction problems got worse, he came to Kid's school drunk and tried to drive away with her, police had to be called, child protection services brought in, I said "that's the last frigging straw" and retained a lawyer to open negotiation on varying the divorce order to give me sole custody. I would like to deal with this through binding arbitration and avoid court if possible. Kid has been living with me full-time since September 2016 because ex has been deteriorating rapidly. She sees ex for short visits 2-3 times a week.

Ex hires lawyer who advertises on the sides of buses. They don't respond to offers of arbitration and they serve my lawyer with an application to have the courts enforce the 50/50 part of our divorce agreement - in other words, to require me to go send Kid to stay with her father half-time. However, there's no indication of a court date or any time at which this will be resolved. Is it possible to file an application without setting a date at which it will be heard? I know it's possible to adjourn "sine die", but this isn't an adjournment. I'm not sure what to make of this move, as I've been able to stay out of court before this. Any thoughts?

(And before anyone jumps to conclusions - ex's addiction and mental health problems have been getting steadily worse, I've gone way out of my way to maintain Kid's relationship with him, but drunk driving is completely unacceptable to me. I also have no evidence that he has stopped or reduced his drinking, or that child protective services have concluded their investigation).
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Old 06-30-2017, 07:20 PM
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How old is your daughter again? 14?

Have your lawyer counter with sole custody with stipulations on access.

I actually prefer court. You at least get a decision.
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Old 06-30-2017, 07:23 PM
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She just turned 12. Countering with sole custody and "reasonable and generous opportunities for access" is exactly what I want to do. The only kind of arbitration I would agree to is binding arbitration (JDR). However, if ex refuses binding arbitration we'll have to go to court.

Lawyer is not moving too quickly on this, so I'm trying to educate myself on the mechanics of the process (although I won't actually do anything without input from someone who really is a lawyer). How does one counter an application?
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Old 06-30-2017, 09:17 PM
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lawyers don't like the binding arbitration for 2 reasons - 1) they are usually inexperienced with it and 2) they make a small sliver of the amount they make going the other route.

JDR is excellent. You might have to wait for your ex to get a few bills from his lawyer before he agrees.

I can't say when it comes to child custody issues - I did the JDR for divorce. Probably much the same thing. You are in Alberta. Read information "practice notes" on JDR (judicial dispute resolution). You are correct - must be binding or it's a waste of time/money. I forget which city you are in. I know Calgary handles JDR a bit differently than Edmonton. You should get your lawyer to push for this. If he won't then you should get another lawyer. If you're in Edmonton I can give you the name of my lawyer. He also goes to Red Deer for some clients. But before you change lawyers you should have a frank discussion with your lawyer to find out where he's at. I know family court slows to a crawl in Edmonton during the summer. Less judges available for JDR's during that time.

My lawyer got my ex's lawyer to agree to JDR simply through some phone calls. Together they sent a letter to the coordinator. Date was set. Lawyers submitted briefs 30 days prior to JDR date. We met with judge and by the end of the day it was over. We went upstairs to a courtroom and judge pronounced us divorced and Order made (which was decided to earlier in day). Very simple process. Nothing is recorded. No witnesses. We broke for lunch and 2 coffee breaks. Very civilized process with the judge presiding over everything all day long.

Last edited by arabian; 06-30-2017 at 09:22 PM.
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Old 06-30-2017, 11:48 PM
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is there a final order in place? then you first need to prove a material change effecting custody and access. I don't think him showing up at the kids school drunk the _one_ time is material change. It's a protection concern that the CAS will decide on.

If the kid doesn't want to see dad (without _any_ influence from you) then that may hold. However, it is your obligation to encourage amd facilitie access to the other parent. If you have concerns then let the CAS and Police investigate your concerns. If they speak to dad and close the file with no safety concerns, then you really don't have a leg to stand on. If they investigate and have concerns, then the odds are in your favour.

I don't think they would agree to binding arbitration and would want you to prove a material change (the onus is on you).

There should be a return date. Are you perhaps not comp
lying with the order and they are simply bringing a contempt motion against you maybe?

Last edited by trinton; 06-30-2017 at 11:55 PM.
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Old 07-01-2017, 12:18 AM
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This isn't a contempt motion. The order hasn't been followed for a year, during which Kid has been living with me full time. The drunk-driving incident wasn't a one-off - it's the third time in ten months that cops have been called to deal with his behavior (and it's not me calling them). During the same time he's also had two extended hospitalizations for psychiatric problems, failed rehab three times, gone on long-term disability because of health problems associated with advanced alcoholism, has an open child protection investigation, and repeatedly harassed me and his other ex-wife verbally and in written form. There is every possible material change in circumstance. He is a classic alcoholic-in-a-downward-spiral.

Kid still does want to see him and I am facilitating that, otherwise I would have nothing to do with him at all. The drunk-at-school incident was the straw that finally pushed me over the edge to seek a legal remedy rather than keep hoping he would stop drinking.
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Old 07-04-2017, 10:09 AM
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Wouldnt you just file either a response to the application or a motion to change?

What did your lawyer say?
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Old 07-04-2017, 10:57 AM
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Quote:
Originally Posted by stripes View Post
This isn't a contempt motion. The order hasn't been followed for a year, during which Kid has been living with me full time. The drunk-driving incident wasn't a one-off - it's the third time in ten months that cops have been called to deal with his behavior (and it's not me calling them). During the same time he's also had two extended hospitalizations for psychiatric problems, failed rehab three times, gone on long-term disability because of health problems associated with advanced alcoholism, has an open child protection investigation, and repeatedly harassed me and his other ex-wife verbally and in written form. There is every possible material change in circumstance. He is a classic alcoholic-in-a-downward-spiral.

Kid still does want to see him and I am facilitating that, otherwise I would have nothing to do with him at all. The drunk-at-school incident was the straw that finally pushed me over the edge to seek a legal remedy rather than keep hoping he would stop drinking.
Was it known that he drank alcohol at the time the order made? How the drinking at the school incident get's perceived by the courts is ultimately how the CAS (the people who are trained to protect children) conclude it as. If CAS has no concerns, then you can't have any concerns. If you disagree with them then I think you must get the OCL to investigate and overturn their conclusions - good luck.

Has there been any incidents of him drinking and driving with child at other times? Does he drink at home around the child? Or does he just randomly _only_ show up at the school drunk ?
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