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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 11-25-2008, 10:45 AM
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Default Dragged Out Response - What Can Be Done?

Do any of you know if there is anything that can be done if the other party doesn't respond in time, or with enough time for us to review their response?

My fiancé and I fear that the bio-mom and/or her lawyer won't respond to our motion until the latest possible minute, preventing us from having adequate time to review the response and decide on how to proceed. Our court date is quickly approaching, and we have heard nothing from the other side, and it's been 25 days since the bio-mom was served with the papers.

Is there anything that we can do?
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Old 11-25-2008, 11:35 AM
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I just read...

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.

Unfortunately, I found nothing about giving the other party time to review and reply, if necessary. Any thoughts?
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Old 11-25-2008, 11:48 AM
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Oh, and just wondering... what does "...shall be served and filed or returned and provided..." mean?

My understanding is that the party who got served needs to file their consent/response and provide the party bringing the motion with a copy. Or does the party who got served need to serve the party bringing the motion?
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Old 11-25-2008, 02:49 PM
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Ok, I don't know the answer but I do know that as long as the party serves responding material by the deadline, then even though it may be a lot of material, it still is heard by the court.

For instance, I just served and filed a motion against my ex yesterday. Two weeks ago, my exs lawyer served me with a long motion scheduled for this Friday. Yesterday was the deadline for me to file my own motion, provide disclosure as required by a previous order etc. for this Friday's motion day. My ex has until 2pm tomorrow to respond. We go ahead on Friday am.

I filed an enormous load of paper at the court after serving his ex's lawyer. In my opinion it really is too much to respond to in such a short time. I agree with you. I think the rules suck actually about how fast you have to make a case on things. I guess they don't realize people have jobs and can't just spend days drafting motions and affidavits(not like lawyers or their staff).

I had to provide lots of disclosure to the other side and also just dropped that off yesterday. I cannot imagine the other side being able to get through it in time.

Considering how many times I have been served with motions, affidavits past the deadlines for receiving material by my ex's lawyer etc. etc. I don't feel too bad about it. I have been getting the short end of the stick too long!!

I know your frustration about having time to respond to the other side. It is a game that lawyers play.

The only way you can win is to actually draft an affidavit of material that you THINK the other side is going to talk about. Once you get served, as long as it isn't too late to file, you can file an affidavit in response.

LV- Maybe I have it all wrong here so please give her the proper advice! lol
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Old 11-25-2008, 04:33 PM
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I don't even know if we are required to provide a reply to the response we receive to our motion. Does anyone know whether we need to respond to the response? ...Before the court date?
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Old 11-25-2008, 06:33 PM
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In the past, in my situation, if the other side put their material in early(before deadline) my lawyer had me put in another affidavit covering off the ex's points.

I do not think it is something that is automatically done though. I am not sure. Sometimes we did not respond, sometimes just an affidavit, sometimes a cross motion. It depends.

Remember, if they just file an affidavit then there should be no need to. If they file a crossmotion then you would respond I would think.
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Old 11-26-2008, 03:19 PM
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Thanks for the info. I have no idea what the bio-mom will file. We asked her when we could expect a response, and whether she has retained a lawyer... but she simply replied that she doesn't know how to proceed yet. Go figure! The deadline for her to file a response is a few days away (I'm still trying to figure out exactly how many, and have my fiancé calling the courthouse to ask them when she needs to have her response filed.)

Actually, do any of you know... the thirty days that a responding party has to respond, is that counted from the date they've been served or from the date we filed our affidavit of service?
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Old 11-26-2008, 03:58 PM
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The Thirty days would start on the day that service is deemed effected by the Rules. I think personally serving someone is considered that day(for obvious reasons).

Family Law Rules say this:

RULE 6: SERVICE OF DOCUMENTS

SERVICE OUTSIDE BUSINESS HOURS

(7) If a document is served by any method after 4 p.m. on a day when court offices are open or at any time on a day when they are not open, service is effective on the next day when they are open. O. Reg. 114/99, r. 6 (7).

HOURS OF FAX SERVICE

(8) Service of a document by fax may be carried out only before 4 p.m. on a day when court offices are open, unless the parties consent or the court orders otherwise. O. Reg. 114/99, r. 6 (8).

EFFECTIVE DATE, SERVICE BY MAIL

(9) Service of a document by mail is effective on the fifth day after it was mailed. O. Reg. 114/99, r. 6 (9).

EFFECTIVE DATE, SERVICE BY COURIER

(10) Service of a document by courier is effective on the day after the courier picks it up. O. Reg. 114/99, r. 6 (10).

EFFECTIVE DATE, SERVICE BY DOCUMENT EXCHANGE

(11) Service by deposit at a document exchange is effective only if the copy deposited and an additional copy of the document are date-stamped by the document exchange in the presence of the person depositing the copy, and then service is effective on the day after the date on the stamp. O. Reg. 114/99, r. 6 (11).

INFORMATION TO BE INCLUDED WITH DOCUMENT SERVED BY FAX

(12) A document that is served by fax shall show, on its first page,

(a) the sender’s name, address, telephone number and fax number;

(b) the name of the person or lawyer to be served;

(c) the date and time of the fax;

(d) the total number of pages faxed; and

(e) the name and telephone number of a person to contact in case of transmission difficulties. O. Reg. 114/99, r. 6 (12).

MAXIMUM LENGTH OF DOCUMENT THAT MAY BE FAXED

(13) Service of a document or documents relating to a single step in a case may be carried out by fax only if the total number of pages (including any cover page or back sheet) is not more than 16, unless the parties consent in advance or the court orders otherwise. O. Reg. 114/99, r. 6 (13).

DOCUMENTS THAT MAY NOT BE FAXED

(14) A trial record, appeal record, factum or book of authorities may not be served by fax at any time unless the person to be served consents in advance. O. Reg. 114/99, r. 6 (14).
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Old 11-26-2008, 04:53 PM
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Thanks. I was just on that page... but completely missed the SERVICE OUTSIDE OF BUSINESS HOURS part. Darn it, that extends the deadline by three days, for the bio-mom to respond to our motion. Argh! Thanks again! Better to be fully informed than proceed thinking you are!
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