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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 06-09-2017, 04:06 AM
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Default Feel like I'm in way over my head

Try to brief this up. In the midst of a mobility case. Ex is trying to move 500km away. I opposed this. I put in a motion in March. Judge made temporary order that my ex cannot move until decision has been made. Ex buys a house at new place. Gives notice at rental here. Submits their motion to change in may. Just had our case conference and their lawyer is pushing and pushing to let the judge make a temporary order to let my ex leave as they have to be out by the end of this month. Their lawyer was pushing me to sign this temporary order enabling my ex to be able to move to their new house 'temporarily' until a court decision is made. I opposed as my concern is as the judges was that once they're gone, they're gone. Nobody will force them to come back once they've moved. I'm self represented at this time. Judge agrees with me but appoints me a duty counsel (I do not qualify for duty counsel). Judge sends us back out for me to discuss with duty counsel regarding my ex's proposal for this temporary order. Duty counsel and I agree this is not the best idea. My suggestion is that if my ex needs to move, the children stay with me temporarily until a decision is made. Or my ex does not leave the area until a decision is made.
We go back in to talk to judge. Now judge seems to have a different perspective and is siding with my ex. Judge suggesting that there's no other option but to let my ex move. Judge finally agrees and tells my ex they are required to stay in the area until some decision is made. Then when requesting what summer schedule will be considered, my ex is now saying they want first 3 weeks of July so they can move their stuff to new house and be able to look for a place locally here. Unfortunately that was the breaking point for the judge (and I do actually feel bad for her as she's been forced by my ex to try to make an order). The judge completely loses it and says "fine, you can come back June 21st and settle this. You are both required to submit an affidavit and a factum".
My problem is that I still don't have representation. The duty counsel I had that day won't return my calls. I've contacted several other local lawyers all but one so far may 'possibly' be able to take on my case but I have just over 1 week to write my affidavit and factum (which I've never written before).
If I can't obtain counsel am I doomed? Also, I don't even have the money to obtain one. My father has suggested me may help me but I hate doing that. I already spent $15k a few years ago on lawyers. This sucks and I'm totally stressing about having to do all this paperwork. I've started roughing out my factum but now have kids for whole weekend so won't have much time to work on it this weekend. I do have an appointment Monday with a lawyer for a consult. I'm just not sure yet whether or not I'll be able to retain him.

Any help with writing my factum? I have a rough idea of a format. Or any other help/suggestions?
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Old 06-09-2017, 10:20 AM
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Quote:
The duty counsel I had that day won't return my calls.
Their job is to represent people on a very short term basis at the courthouse. They are not your lawyer on an ongoing basis.

Quote:
I've contacted several other local lawyers all but one so far may 'possibly' be able to take on my case
Call to say that you have a case going to a motion on June 21, factum required and affidavit needing to be drafted, and you need counsel.

Expect the day to cost in the $5k-10k range. If that is too much, ask for unbundled legal services.

Quote:
If I can't obtain counsel am I doomed?
No - but if you don't put your evidence together or know the law going into the motion you will probably lose.

Quote:
My father has suggested me may help me but I hate doing that.
You are risking your children moving 400km away because getting help from your father - whose relationship with his grandchildren is also at risk - would have to help you out?

Check your priorities here.

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I've started roughing out my factum but now have kids for whole weekend so won't have much time to work on it this weekend.
Take some time off work if you are doing this yourself. One of the ways that self-represented parties can succeed is by doing the work well. This means taking the time for it. You cannot work a full time job, run your house, take care of your kids and pick up a new trade all on short notice.

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Any help with writing my factum?
Step one is your affidavit. Your factum is a summary of the key evidence, the law as it relates to the issues, and your argument as to how the law applies to your facts.

The facts portion of your factum is a distillation of your affidavit. If I were your judge, I would want to know:
- family history (how long together, how many kids, when break up)
- family constellation (have people re-partnered? where do the kids live? how long has this been stable? Who has custody?)
- From the mobile party, what are the benefits of moving? Why are they moving?
- From the static party, are there facts that vitiate the benefits of moving?
- From the static party, what are the benefits of the children staying?
- If the mobile party will go regardless of the decision, can the static party take on the children on a full time basis?

For submissions, know the law and relevant cases.

Are the facts controversial? Perhaps the matter should be decided at trial.
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Old 06-09-2017, 11:26 AM
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A family member successfully represented himself on mobility. He won because he demonstrated the benefits of kids staying. His ex could not demonstrate any benefits.

His facts showed the current status, the activities the kids were in, the calibre of sports here vs there, the connections (family and community) here, the psychological impacts (he used studies) to the kids moving that far away, the resources they were already involved in etc.

Your ex will be demonstrating all the positives the kids have by moving, you want to show that they have cemented supports and connections here and reestablishing those will be a detriment.

OL is right, take some time off and if the kids staying is worth 10,000 to you, find and hire a lawyer immediately.
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Old 06-09-2017, 12:14 PM
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This post:

http://www.ottawadivorce.com/forum/f...m-writing-868/

Fight to prevent their temp move - I've seen a client's case lost, because the kids had been gone for a year and the judge didn't want to upset them another time by returning them -although, I think if they hadn't moved yet, our client would have been successful.
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Old 06-09-2017, 01:00 PM
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He won because he demonstrated the benefits of kids staying. His ex could not demonstrate any benefits.
Best interests of the child is always the key. Procedural fairness is an extra shield and militates against mobility on an interim motion, however best interests is what will decide the day.

Rockscan's advice should be heeded.
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Old 06-09-2017, 05:51 PM
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Thank you for the advice all.

As it turns out my ex played some sick twisted game with me this morning and denied (not denied in their eyes) my kids for this 3 day weekend. So I've whole weekend to work on all this. And of course add this particular incident into my papers as this exact thing is one of my arguments.
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Old 06-10-2017, 12:28 PM
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So I have a couple more questions regarding this if anyone can help me out. Should my affidavit be containing history and what my ex and I are asking of the court? Or should it be fact only as there are previous sworn documents detailing our views upon this particular matter?
Also, material change. This seems to be a little bit confusing and one of my arguments will be that there has not been a material change to support my ex's decision to move. They did not get a new job. They bought a house there for cheap but it's always been cheaper there. There's nothing different now than there would have been 5yrs ago. I think...?

Thanks again.
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Old 06-10-2017, 08:23 PM
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Quote:
Originally Posted by ifeelold View Post
So I have a couple more questions regarding this if anyone can help me out. Should my affidavit be containing history and what my ex and I are asking of the court? Or should it be fact only as there are previous sworn documents detailing our views upon this particular matter?
Also, material change. This seems to be a little bit confusing and one of my arguments will be that there has not been a material change to support my ex's decision to move. They did not get a new job. They bought a house there for cheap but it's always been cheaper there. There's nothing different now than there would have been 5yrs ago. I think...?

Thanks again.
There has to be something different, though, or why would she want to move there?

I don't know anything about affidavits, but I can tell you that you don't list what your ex is asking. You just make all your arguments about why the children should stay put.

Key general areas to cover would be:

the distance would harm the kids' relationship with their father
they would be leaving their school and all their friends
they would lose access to their established activities

then you can get more specific to your situation.
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Old 06-26-2017, 11:34 PM
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What is the current custody arrangement?
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