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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 05-15-2014, 08:06 PM
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Default Court of appeal - anyone have any experience?

My lawyer just informed me that my ex's lawyer is, yet again, refusing to endorse the Order from court from last week. This isn't the first time his lawyer has done this and my lawyer merely sends the OC's response to the judge who signs it off anyhow.

I'm curious if this is somehow setting up something for a Court of Appeal issue. This will be the third Order that the OC has refused to endorse.

I'm surprised at the objection of his counsel as my ex was given, in my opinion, an obscenely large reduction in his SS arrears along with greatly reduced SS for 2014.

I really thought the end was in sight! I fear that this is the start of another drawn-out process.

If anyone has any experience with this I'd appreciate your input.
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Old 05-15-2014, 08:53 PM
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I just took some advice that I have given to others many times and I read the Rules of Court for Alberta.

Successful party drafts the Order and serves to other party. Other party has 10 days in which to file an objection.

In my situation the other party doesn't approve and therefore my lawyer sends to the judge for approval (this has happened many times before).

I'm just wondering if there is any legal benefit to the other side in not approving?

I'm hoping that this is just a matter of 'poor sportsmanship' on the part of the OC.
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Old 05-16-2014, 11:48 AM
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Quote:
I'm just wondering if there is any legal benefit to the other side in not approving?
None at all. If the order is properly drafted, it gets signed off and it does not matter whether it was approved or not once it is signed.

It may be your ex's account is in arrears so his lawyer is doing as little as possible.

Quote:
I'm curious if this is somehow setting up something for a Court of Appeal issue.
In broad strokes, one of two things needs to happen for an appeal:
- Error in facts ("dad pays child support to mom... but there are no children!")
- Error in law ("mom needs to prove entitlement beyond reasonable doubt!")

If a reasonable settlement was reached on informed consent, I cannot imagine what the grounds for appeal might be.
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Old 05-16-2014, 01:32 PM
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Thanks OL.

Winning party (or whomever judge appoints) drafts the Order which is sent to OC for their signature/approval then it is sent to court for filing.

Ex's lawyer has done this several times before (not signing) and my lawyer sends directly to judge. Strange because this slows everything down. Ex is the one who benefits the most from this and you'd think he'd want the new Order filed with MEP asap. Ex's previous lawyers signed off immediately.

I'm just hoping that this will be the end of things for a year or so. Would be so nice to get a break from this.
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Old 05-16-2014, 04:14 PM
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Orleans lawyer is correct but first the Judges Endorsement must be made into a Final Order and then the appeal can be launched (but only on a question of law or fact as Orleans stated). and I'm not sure how long you have to make the appeal after the Order has benn "issued".
Yes as a professional courtesy lawyers need to get draft orders done within 10 days of the endorsement date. Sitting on finalizing a Draft Order to send it to a Judge for issuance (3 months) dimishes the chances of appeal.
maybe the other side is afraid of an appeal

Last edited by MrToronto; 05-16-2014 at 04:25 PM.
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Old 05-16-2014, 04:28 PM
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Arabian,

It looks like other game and I am in similar situation after my recent motion.
The opposing lawyer sent me a Draft Order for my approval. That Draft is absolute junk.

I had to prepare proper Draft Order and I sent it to opposing parties for approval. I did it couple days ago and I am still waiting their approval. Now if they approve my Draft Order I have to go to the Court, signing with court registrar and filing. It is my time and expenses. This is a cheapest way for opposing side. Actually opposing lawyer saved couple bucks for your ex. Your ex is happy too. It seems that your ex owes money to you. Small step but by this way your lawyer and opposing lawyer encourage both of you keeping fighting.
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Old 05-16-2014, 04:38 PM
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Sounds like your Draft Order came out or from a Conference(s). When there's a Trial at the end of it the Judge writes his Endorsement (Judgement) that has to be followed to the "letter" with no changes or the Court Clerks will reject a Draft Final Order that doesn't match the Endorsement. Below is a Peel Region Doc I can't get the link. or change it to something else to post it but google the below if someone can get it and post it and make a thread for how to make a Draft Court Order that would be great all you need is a Form 25 and the below (and maybe a Support Decdection Order Form)

guide_drafting_ocj_orders_2008-10.pdf

Last edited by MrToronto; 05-16-2014 at 05:05 PM.
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Old 05-16-2014, 11:25 PM
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my lawyer told me if he doesn't receive signed Order from OC by Tuesday (thats the 10 days) he will send the Order to judge for his signature. We've had to do this before. They spent 4.5 hours in court last week arguing this thing.

I'm sure there will be another motion. It would be too good to be true that this is the last we have to hear from them for a while.

Most of the court rooms have a clerk who literally types up the Orders and they are printed out there and then on green paper. I don't believe the judges hand write anything like they do in Ontario. Alberta Rules of Court stipulate the winning party (or party judge designates) prepares the Orders. I assume this is for longer, more detailed orders.

I believe an appeal would have to be filed within 30 days. I'm not interested in filing an appeal as it is tremendously expensive and I have lost enthusiasm for the court life. 5 years is quite enough. If were were to win on appeal it would mean more court. Any financial gain would go to CRA in the end anyhow.

Last edited by arabian; 05-16-2014 at 11:29 PM.
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