Ottawa Divorce .com Forums


User CP

New posts

Advertising

  Ottawa Divorce .com Forums > Main Category > Divorce & Family Law

Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

Closed Thread
 
LinkBack Thread Tools
  #1 (permalink)  
Old 12-01-2008, 12:13 AM
Senior Member
 
Join Date: Oct 2008
Location: Toronto
Posts: 885
#1StepMom is on a distinguished road
Default Discouraged by family court system

My fiance and I went to speak with legal aid at the family law clinic to find out the best way to proceed if the bio-mom does not provide a consent or response to our motion of change on or before the 30-day deadline.

In the Family Law Rules, http://www.e-laws.gov.on.ca/html/regs/english/elaws_regs_990114_e.htm it specifically states:

NO RESPONSE OR CONSENT, OR RESPONSE STRUCK OUT
(14) If a party does not serve and file a response to motion to change (Form 15B) or return a consent motion to change (Form 15C) to the party making the motion as required under subrule (9), or if the party’s response is struck out by an order,
(a) the party is not entitled to any further notice of steps in the case, except as subrule 25 (13) (service of order) provides;
(b) the party is not entitled to participate in the case in any way; and
(c) the court may deal with the case in the party’s absence. O. Reg. 151/08, s. 4.

SAME, REQUEST FOR ORDER
(15) If subrule (14) applies, the party making the motion to change may file a motion form (Form 14B) asking that the court make the order requested in the materials filed by the party, unless an assignee has filed a notice of financial interest in the motion and opposes the change. O. Reg. 151/08, s. 4.

Of course, when I brought this up with duty coucil at the family law clinic, she chuckled and said "No, that's not how it works. The person who's been served has until the court date to respond. If she doesn't show up to court AND doesn't request a new court date, ONLY THEN can you ask for an order to be made solely based on what you filed."

I looked the duty council dead in the eye and said: "So you're telling me this 30-day rule is not really a rule because the legal court system fails to enforce it?" She just looked back at me and shrugged.

I was beyond livid. What is the point of having these "rules" if there is nothing that can be done when they are broken?

Naturally, I asked that exact question, and the response I got was "Well, you could ask the court to have her cover your legal costs for having you come to court when she doesn't attend." WHAT LEGAL COSTS?! We wouldn't be there talking to someone in a legal aid clinic if we had a lawyer we were paying!

My fiance had to quickly thank her for her time (a complete waste of ours, not to mention the hefty parking fee) and lead me out the door before I lunged across her desk and shook her silly!

So now, we sit and wonder "What now?" Any thoughts? Advice?
  #2 (permalink)  
Old 12-01-2008, 07:10 AM
Kimberley's Avatar
Senior Member
 
Join Date: Feb 2008
Location: Ottawa
Posts: 477
Kimberley is on a distinguished road
Default

I am self-rep, and I consider my time & effort 'legal fees'. Taking time away from work to have to continue to fight the matter in court because my ex first refused to pay any support, and now refuses to pay the guideline amount, as well as having to spend my time filing & serving documents all count. Thus I take the wages for the days (minus taxes) and deem that my 'legal fees'.
If a lawyer had to appear in court, or file/serve documents they would treat that time much the same.
  #3 (permalink)  
Old 12-01-2008, 07:11 AM
Senior Member
 
Join Date: Dec 2006
Location: Kitchener Ontario
Posts: 5,228
standing on the sidelines is on a distinguished road
Default

well first off get use to it. No sense in getting ticked off at the people delivering the bad news, they do not make the rules. She should not have chuckled at you though. Your fiance handled it the best way by not gettng angry, you should watch yours or it could bite you in the ass later ( do not want the ex calling you a loose cannon in any future battles).

Law, no matter if it is family criminal or whatever always has the bugs in it. Nothing ever goes exactly the way you think it should. Be prepared for that. Your fiance will hit roadblocks, insane rules etc. Just take a deep breath and remember to keep focused on the end result.

As for legal costs, keep track of everything you pay out, get receipts for everything, like pat=rking etc. Maybe there is some way to recoup those losses.
  #4 (permalink)  
Old 12-01-2008, 08:41 AM
Senior Member
 
Join Date: Oct 2008
Location: Toronto
Posts: 885
#1StepMom is on a distinguished road
Default

Loose cannon, far from it. ;-) I'm always calm and controlled, even if I don't feel that way on the outside. Which is often the case! LOL!

That last experience with the family law clinic made my blood boil. Perhaps it was the "bad news" and/or the way it was delivered (very matter-of-factly, 'too bad for you') but in my mind, we have rules for a reason. Right?

I like the idea of costs for time and effort... and parking. Unfortunately, my fiance, being unemployed at the time, is not missing any wages each time we take a day to deal with the case. But, the price of gas is high, and driving 1.5 hours to get to the courthouse is not cheap. The only think that makes us cringe about asking for costs is putting a rift in the semi-respectful relationship we have with the bio-mom. I would hate to make matters worse and have the bio-mom go back to her antics from a few years back, full of animosity, jealousy, revenge, you name it!

But, just in case, we will have a Form 14B filled out and a Form 25 based on the order we want the court to make written up as well. ;-)
  #5 (permalink)  
Old 12-01-2008, 07:56 PM
dadtotheend's Avatar
Senior Member
 
Join Date: Jul 2007
Location: Toronto
Posts: 3,644
dadtotheend will become famous soon enoughdadtotheend will become famous soon enough
Default

The Rules of Procedure are often violated because it is the best interests of the children that prevail. If a child's best interest is prejudiced by a technicality such as not responding in thirty days vs "walking in" a response at the last minute, that wouldn't be good.

That said, this aspect of the (lack of) rules is used as a tactical weapon by lots and lots of sometimes unscrupulous parties, including and especially lawyers.
  #6 (permalink)  
Old 12-01-2008, 09:37 PM
Junior Member
 
Join Date: Apr 2008
Posts: 28
selfrep is on a distinguished road
Default

Being a self rep is an exasperating experience. A lot of what you are hearing is correct. Just to give you an idea of what sort of thing you can run into. I was doing a return on a document and the time stated was by a specific date. My interpretation of that date was midnight. I was faxing the document. The lawyer on the other side used that as intimidation against me. His response was as follows: If you have by now read the Family Law Rules in terms of service deadlines, perhaps you will now appreciate that there has to be a certain degree of flexibility on these procedural issues by both sides. You must decide how you want to conduct yourself as we prepare these various items for trial. I see no utility in insisting on exact compliance, and courtesies back and forth are the norm not the exception.


I wish you well with your quest. Try to expect incompetence and frustration every step of the way. There will be lots of time expended and unless you have any co operation from the other side it will take more time. Just remember if they are represented they are spending lots of money and that can only stop with your co operation. I am going into my fifth year now.
  #7 (permalink)  
Old 12-01-2008, 09:58 PM
Senior Member
 
Join Date: Oct 2008
Location: Toronto
Posts: 885
#1StepMom is on a distinguished road
Default

Thank you for the truthful words, and your sharing of experiences. I do agree that it is a dragging process. The last time we went to court (exactly one year ago) we had a lawyer, and I was quite exasperated then too. But what frustrated me most then is that I felt "on the side lines" and always had to go to our lawyer for up to date information. At some points, I felt we could've done it better ourselves!

Now that we're "self-representing" I feel a little more in control. However, if there are rules, I like to play by them, especially when I'm just learning the game. And this lack of enforcement is driving me crazy!

But, my fiance and I sat down and discussed our plan of action today. We will go ahead and prepare all the necessary forms in case the responding party doesn't file her response by the due date. And we are going to file these forms a few days after the deadline, and a few days before the court date. Whether the judge will even look at these forms, I doubt it, but just in case we'd like to have our bases covered. And if my fiance gets asked WHY he filed those forms, he can always say he was simply "following Family Court Rules" and indicate which rules he followed! I'd like to see a judge try to talk his way out of that and explain how the rules "don't apply" or "aren't enforceable"! Ha!
  #8 (permalink)  
Old 12-01-2008, 10:59 PM
Kimberley's Avatar
Senior Member
 
Join Date: Feb 2008
Location: Ottawa
Posts: 477
Kimberley is on a distinguished road
Default

Unfortunately it doesn't quite work out as you imagine. My ex did not file financial disclosure until it was 110 days AFTER he had been served which stated he had 30 days in which to do so. In fact, an answer was never even filed.
I served my ex on July 31st, for court on September 2nd. On August 28th I received a letter from a lawyer he had retained telling me that he had not yet had a chance to actually meet his client and that he would be requesting an adjournment on the first court date.
On Sept 2nd he got his adjournment - to Sept 16th, and I got nothing but a day of lost wages and frustration. I got angry (internally) and took yet another day off work, travelled the 1 hour plus to the court that holds the records and filed/served a notice of motion along with the affidavit and exhibits to back up portions of my affidavit - this was done in the required 7 day time from the court date. I attempted to make contact with his lawyer during the time prior to then, only to be met with silence. When I had heard nothing and it was the timeline to fax the Confirmation, I did as such stating that I would be going ahead on all matters.

A couple days later another letter from his lawyer arrived, this stated that he was to be bringing an application for divorce and moving the custody, access & support issues to Superior court, a paltry offer of $500/month (there are 4 children), and the only access he was willing to accept was every 2nd Sunday.

Court on Sept 16th was without financial disclosure again - the lawyer's excuse was due to the distance that his client lived from him thus the face to face meetings were more difficult, but they were in the process of completing disclosure. Interim order for custody, access and the $500 support was put in place - court adjourned to Nov 18th to review financial disclosure to adjust child support to the guideline amount and to see if the matter would be moved to Superior as they claimed they would be filing the divorce 'in a few short weeks'

November 18th court - financial disclosure was JUST completed as of the Friday - not filed with the court, nothing served - I was given a copy 30 minutes before the case was to be heard in court. He is claiming undue hardship - case moved to Settlement Conference stage for Feb 3rd. I am now required to take another day from work to file the brief along with financial disclosure (although I have not been able to find out if this has to be done 30 days before, or 7 days).

The gist of the story is... as much as you would love to imagine the judge giving the respondent an earful for not 'following the rules', it doesn't appear to happen very often at all. Things just get pushed off to adjourned dates or new stages requiring you to jump through yet more hoops.

What I have learned the most is this: Keep fighting for what is right for the children, check your emotions at the door, and bury the opposing party in paperwork.

All the best to you.
  #9 (permalink)  
Old 12-02-2008, 12:31 PM
Senior Member
 
Join Date: Oct 2008
Location: Toronto
Posts: 885
#1StepMom is on a distinguished road
Default

Thanks for the well wishes Kimberly. I'm sorry you're having such a tough battle. I truly hope my stepson's bio-mom doesn't drag things out like this. When she took my fiance to court a year ago, we tried to get it done and settled as quickly as possible. From the time we received the paperwork, it took 4 months to get an order in place. I think that's pretty speedy, considering how slow the court system is.

The bio-mom's 30-day deadline is 5pm tomorrow. We have not heard anything from her yet. We'll have to wait and see what happens. Either way, on Friday we're going to file some more information (including a personally written child support proposal, as there are no such forms to fill out) and see what happens on the court date next week.

Thanks again for the reply!
  #10 (permalink)  
Old 12-02-2008, 10:48 PM
Junior Member
 
Join Date: Nov 2008
Posts: 9
TryingDad is on a distinguished road
Default

Quote:
Originally Posted by dadtotheend View Post
The Rules of Procedure are often violated because it is the best interests of the children that prevail. If a child's best interest is prejudiced by a technicality such as not responding in thirty days vs "walking in" a response at the last minute, that wouldn't be good.

That said, this aspect of the (lack of) rules is used as a tactical weapon by lots and lots of sometimes unscrupulous parties, including and especially lawyers.
The problem you stated here is two-fold. 'Best interest of the children' is about as subjective as they come, and the people making that subjective decision are generally not those who should be. And the lawyers will make full use of those technicalities.

I was away for a period of time (work related) and had a judge say, in open court, 'most fathers would be happy to have a month away from their kids!' This is the guy who knows what the best interests of kids are???
Closed Thread


Currently Active Users Viewing This Thread: 1 (0 members and 1 guests)
 
Thread Tools

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is On
Trackbacks are On
Pingbacks are On
Refbacks are On


Similar Threads
Thread Thread Starter Forum Replies Last Post
press release: Ontario's Family Responsibility office Peggy Parenting Issues 8 10-22-2010 11:20 AM
Ontario Justice Bruce Pugsley's recent comments in family court logicalvelocity Political Issues 7 09-22-2010 06:10 PM
Mother frustrated with family court Grover Divorce & Family Law 14 11-09-2009 01:30 PM
Lawyer calls for judicial inquiry into disfunctional family court system! logicalvelocity Political Issues 9 07-19-2009 10:41 PM
A historical article (1999) with regards to Ottawa Family Court... logicalvelocity Political Issues 3 05-13-2008 07:39 AM


All times are GMT -4. The time now is 07:01 AM.