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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 11-23-2006, 07:25 PM
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Default Email from my Lawyer - ????

"I filed a consent order reflecting the access agreement that was
reached at our last Court appearance. I received a letter from Mr.
*lawyers name*stating he is very upset that I did so, arguing that his client
only agreed to "try" the access arrangement and did not intend to be
bound by it. He has asked me to consent to vacating that order. I am
not inclined to do so as I feel it accurately reflects what was put on
the record in court. For them to commit to cooperating with access and
then refusing to be bound by that agreement is in itself extremely
misleading. I will take your instructions on whether or not you want
to consent to vacating the access order ( meaning it will be "erased.")."


Above is the exact email I received from my lawyer today. I understand what she is saying yet I'm not sure what the implications are. The background is that I toook ex to court two months ago and she is not cooperating with my seeing my son. What REALLY is my lawyer saying according to this?

Any help would be so very appreciated/!!!
Serrona
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Old 11-23-2006, 09:10 PM
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serrona,

i am not sure how you filed the court order. Did the other side remain silent when you served them a draft copy of the order OR was the consent order witten as an endorsement by the Judge?

If the consemt order is on form 25 and the child's access is not occuring as per the order, then perhaps the other party is in contempt of the order.

I suspect this is what all the fuss is all about.

If it was me I would keep the order as it and let them take steps to either erase or vary same. For them to erase the order, they have a heavy onus to prove that the child's access as per agreement is not in the child's best interest. Normally, a court will not back pedal on a regime that has been in place unless the child was in some kind of harm. I believe the court would question their stance.

lv
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Old 11-23-2006, 09:48 PM
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LV - I guess my first step is to ask my lawyer if this was filled out using form 25? Is that correct?

Thanks
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Old 11-23-2006, 10:00 PM
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yes confirm if form 25 was filed for the order. You could do this yourself by viewing your continuing record filed at the court house or ask your lawyer.

If tthe order is on form 25, then your lawyer would of had to serve the other party a draft of the order. From that point if the other party remains silent, then your lawyer would of went ahead and filed the order.

See rule 25 of the family law rules found here to get an understanding of the process.

http://www.e-laws.gov.on.ca/DBLaws/R.../990114a_e.htm

RULE 25: ORDERS

CONSENT ORDER

25. (1) If the parties agree, the court may make an order under these rules or an Act without having the parties or their lawyers come to court. O. Reg. 114/99, r. 25 (1).

SUCCESSFUL PARTY PREPARES DRAFT ORDER

(2) The party in whose favour an order is made shall prepare a draft of the order (Form 25, 25A, 25B, 25C or 25D), unless the court orders otherwise. O. Reg. 114/99, r. 25 (2).

OTHER PARTY MAY PREPARE DRAFT ORDER

(3) If the party in whose favour an order is made does not have a lawyer or does not prepare a draft order within 10 days after the order is made, any other party may prepare the draft order, unless the court orders otherwise. O. Reg. 114/99, r. 25 (3).
APPROVAL OF DRAFT ORDER

(4) A party who prepares an order shall serve a draft, for approval of its form and content, on every other party who was in court or was represented when the order was made (including a child who has a lawyer). O. Reg. 114/99, r. 25 (4).

SETTLING CONTENTS OF DISPUTED ORDER

(5) Unless the court orders otherwise, a party who disagrees with the form or content of a draft order shall serve, on every party who was served under subrule (4) and on the party who served the draft order,

(a) a notice disputing approval (Form 25E);

(b) a copy of the order, redrafted as proposed; and

(c) notice of a time and date at which the clerk will settle the order by telephone conference. O. Reg. 114/99, r. 25 (5).

TIME AND DATE

(6) The time and date shall be set by the clerk and shall be within five days after service of the notice disputing approval. O. Reg. 114/99, r. 25 (6).

DISPUTED ORDER — SETTLEMENT BY JUDGE

(7) If unable to settle the order at the telephone conference, the clerk shall, as soon as possible, refer the order to the judge who made it, to be settled at a further telephone conference, unless the judge orders the parties to come to court for settlement of the order. O. Reg. 114/99, r. 25 (7).

NO APPROVAL REQUIRED IF NO RESPONSE FROM OTHER PARTY

(8) If no approval or notice disputing approval (Form 25E) is served within 10 days after the draft order is served for approval, it may be signed without approval. O. Reg. 114/99, r. 25 (8).

NO APPROVAL REQUIRED FOR CERTAIN ORDERS

(9) If an order dismisses a motion, case or appeal, without costs, or is prepared by the clerk under subrule (11), it may be signed without approval. O. Reg. 114/99, r. 25 (9).

NO APPROVAL REQUIRED IN EMERGENCIES

(10) If the delay involved in getting an order approved would have serious consequences, the judge who made it may sign it without approval. O. Reg. 114/99, r. 25 (10).

WHEN CLERK PREPARES ORDER

(11) The clerk shall prepare the order for signature,

(a) within 10 days after it is made, if no party has a lawyer;

(b) as soon as it is made,

(i) if it is a support deduction order or alternative payment order under the Family Responsibility and Support Arrears Enforcement Act, 1996 or an order under the Interjurisdictional Support Orders Act, 2002, or

(ii) if the judge directs the clerk to do so. O. Reg. 56/03, s. 3; O. Reg. 76/06, s. 6.

WHO SIGNS ORDER

(12) An order may be signed by the judge who made it or by the clerk. O. Reg. 114/99, r. 25 (12).

SERVICE OF ORDER

(13) Unless the court orders otherwise, the person who prepared an order shall serve it, by regular service (subrule 6 (2)) or by mail, fax or electronic mail to the person’s last known address,

(a) on every other party, including a respondent to whom subrule 10 (5) (no notice to respondent) applies;

(b) if a child involved in the case has a lawyer, on the lawyer; and

(c) on any other person named by the court. O. Reg. 114/99, r. 25 (13).

SUPPORT DEDUCTION ORDER NOT SERVED

(14) A support deduction order under the Family Responsibility and Support Arrears Enforcement Act, 1996 does not have to be served. O. Reg. 114/99, r. 25 (14).

lv
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Old 11-24-2006, 12:58 PM
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Thanks LV...this is certainly a learning experience!

I emailed my lawyer to ask how the order was filed but am yet to hear back from her. I just received in the mail this morning a copy of the order!

It states the access agreement that was made in court but also says on line 4: This matter shall be heard before a Case Management Metting on Dec 6
and line 5 says: Leave is granted to file a consent order.

Since the court date on Nov 1 when I took ex in for interim hearing regarding access to son, we have also been seeing someone from the family court to help sort out access arrangement. I met with her today and she feels that I should have a great deal more access than what was agreed upon at the Nov 1st court hearing.

As ex's lawyer is saying that they are upset at the filing of the consent order because ex only agreed to "try" the arrangement and not be bound by it, I am now inclined to vacate that order because the mediator has told me this morning that I should be having MORE access that what was indicated in the consent order...which reflects the court date on Nov 1st. If we allow it to be vacated, then perhaps I could actually do better with my access times considering that the mediator is recommending it and will be present at the Case Conference on Dec 6th. Or can the order stay as it is and then be re-negotiated at the Case Conference?

SO much to learn!
Thanks
Serrona
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