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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 05-15-2012, 06:23 PM
naz naz is offline
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Default Case Conference,(Failure to file brief)

I have a Case Conference tomorrow and I'm the respondent and I filed my brief 6 days in advance without receiving the brief from the applicant. I also filed the 14 c 2 days in advance. I am representing my self since I do not have the money for a retainer but have used a laywer to help with the filing and such. It is less then 24 hours till my case conference and I received a call from the lawyer i used for my paper work to say that my ex's lawyer just sent here their brief. My lawyer replied to her lawyer that I am representing myself and that it should have been sent to me personally and that sending it to the lawyer made it invalid. Secondly anytime my ex's lawyer sent me papers they were always delivered to me, so i don't know why she decided to send them some where else. So the question is, when i go to court tommorrow do I tell them her lawyer didn't file the brief with in 7 days as required and also sent it to the wrong place? Also does this mean the case conference will be rescheduled most likey?
Also I'm a father of a 5yr old boy. My comon-law ex has decided to seve me with papers as she wishes more child support and has also filed for sole custody. She has put in her affidavit that she has primarily cared for the child since birth and has primarily responsible for decision-making involving the child and his been in her sole custody since we seperated in Feb 2011. What she was not aware is that I was keeping a journal of how much time I was spending with him and when I had him over night and such. Which was 3 times a week and overnight every second weekend plus extra. I asked he why she made it look like I had nothing to do with him and she replied..." I was told to shoot for the moon and hope for the best.".... My question is I have proof and witnesses to the time I spend with my son and decisons I make while he is with me, so how does the court look upon this? Does she need to explain herself and be held accountable or should I expect anything from this?

Thx
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Old 05-15-2012, 08:06 PM
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Which court are you in? My STBX did not file a brief at all and the judge was fine with it. We were in the Ontario Court of Justice.
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Old 05-15-2012, 08:13 PM
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In Superior Court of Justice. As I look over her brief it looks like the lawyer just cut and pasted her affadavit from 8 months ago? My ex and I agreed on a few things but the brief doesn't mention it and shows what she originally wanted?
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Old 05-16-2012, 04:00 PM
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Case conference briefs are garbage. Literally.
They are not kept on file, and are tossed the moment the conference is over.

I have had a judge tell us to just not bother filing one for my two past case conferences. this judge has seized our file, and I assume his memory is such that he doesn't need a written reminder of what the issues are.

Anything said or submitted at case conference is on a 'without prejudice' basis in order to encourage settlement. This means that any paperwork or words spoken will not be used should trial become necessary.

The whole concept of a case conference is merely to look for solutions outside of litigation. So if the two parties are able to agre on points at conference, the judge may order it so on consent.

Do not expect to make any head-way during conference on the issues. If you are facing somebody that 'shoots for the moon' in their briefs - all you can really do is state to the judge that you disagree and are anxious to move forward to trial so that you may 'have your day in court'.

Conferences are also used for procedural matters to be ruled on. A Judge might be presented with a procedural matter at conference and make an order on it.
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Old 05-16-2012, 04:22 PM
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Quote:
Originally Posted by wretchedotis View Post
Case conference briefs are garbage. Literally.
They are not kept on file, and are tossed the moment the conference is over.

I have had a judge tell us to just not bother filing one for my two past case conferences. this judge has seized our file, and I assume his memory is such that he doesn't need a written reminder of what the issues are.

Anything said or submitted at case conference is on a 'without prejudice' basis in order to encourage settlement. This means that any paperwork or words spoken will not be used should trial become necessary.

The whole concept of a case conference is merely to look for solutions outside of litigation. So if the two parties are able to agre on points at conference, the judge may order it so on consent.

Do not expect to make any head-way during conference on the issues. If you are facing somebody that 'shoots for the moon' in their briefs - all you can really do is state to the judge that you disagree and are anxious to move forward to trial so that you may 'have your day in court'.

Conferences are also used for procedural matters to be ruled on. A Judge might be presented with a procedural matter at conference and make an order on it.
WO is 100% correct on this one. Case Conference briefs are a waste of time.

But, they are technically required and you can raise the issue with the Conference judge to the fact and ask for costs to be awarded as you came prepared with a brief.

So, although they are a waste of time, I highly recommend you always do one and file it in accordance with the Rules. If the other party doesn't you can raise the issue with the judge. If you are represented by counsel your counsel should always raise this issue.

The purpose of a conference is to resolve issues and not to orally argue (shotgun) piles of garbage. If they are complaining about something then request a technical order for the disclosure.

Always go prepared unless, like WO says... The judge is ceased of the file and notifies you they are not required.

Good Luck!
Tayken
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Old 05-18-2012, 08:25 AM
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Well you were correct. Her lawyer was 25 min late and I never received the brief. She told the judge she had mailed it to me and also e-mailed it to me and filed it with the courts 48 hours earlier. I told the judge that as of this morning before I left for work I had not received it. I asked her lawyer to explain why she never filed it with in the 7 days required and that I had spent over $1,000.00 to file and make sure all my paper work was in order and on time. her reply was "I don't have to explain anything to you." And the judge did nothing. Didn't even respond to it. I'm in total shock at how this is playing out. When I got home after court. her brief was in my mailbox and her e-mail she sent me was sent 2 hours before the case conference while I was at work before court. Her brief was a photo copy of the affadavide she sent me 8 months earlier. We spent the case conference agreeing to issues we had already agreed to before we got there? It was a real waste of time. And her lawyer was like a teeneage girl across the table rolling her eyes over and over again. I want to ask her if she had a problem with contacts or something?
So my next date I have to a sell a major part of my belongings so i can aford to have a lawyer sit beside me and make sure her lawyer acts with-in the law because the judge wasn't holding her acountable to anything.
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Old 05-18-2012, 09:51 AM
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At least now you see what tactics her lawyer will employ. Be ready for it next time.
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Old 05-23-2012, 09:17 PM
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funny, I had a meeting with the DRO a few weeks ago and she had read all of the materials I filed, and gave my ex a slap on the wrist for not filing a brief.

She might not be the judge, but I would think that if it mattered to her, it would matter to the judge.
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