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-   -   Have I proved a material change? (http://www.ottawadivorce.com/forum/f3/have-i-proved-material-change-21066/)

trinton 05-25-2017 05:03 PM

Have I proved a material change?
 
This is with respect to a Motion to change custody and access (filed 6 months after final consent order).

It has been before courts for a little over 2 years now. One case conference and 3 settlement conferences. My initial pleadings are not for 50/50 and I have been seeking 50-50 at the settlement conferences. There has been no settlement and I have discussed a motion to amend if there is no settlement but have been advised by courts that focus hearing should happen first before amending. I have been informed by counsel that the rules allow me to amend if I wish.

A focus hearing was ordered for issue of material change but it never took place. It was adjourned due to interim motions filed by me for disclosure, holidays, etc. Due to motion delays and pending CAS disclosure, there has been many adjournments. Focus hearing was eventually vacated and the courts wanted to discuss next steps on my MTC (which would have been to appoint OCL, amend, and possibly set a trial date.)

OCL was requested initially at case conference but was turned down without valid reasons and later turned down on leave for motion (as part of disclosure motion) as it was suggested that focus hearing must happen first.

There was change of counsel and new counsels put the matter back for a settlement conference and I re-raised OCL request. So there was the 3 initial settlement conferences and the recent one following the focus hearing being vacated. I was granted leave for OCL motion and it ended up going on consent and the courts approved.

Issue of material change wasn't raised at the last SC. Have I proven a material change at this point or is this something that still needs to be proven ?

We are currently preparing for an interim motion to amend for 50/50, expand access to school drop off and pick ups with a contempt portion for a recent denial of access.

OrleansLawyer 05-25-2017 05:06 PM

Quote:

Have I proven a material change at this point
Do you have an endorsement or Order that states that the court has found that a material change in circumstances has occurred?

If yes - material change is proven.
If no - evidence of the material change will need to be adduced at the final hearing.

trinton 05-25-2017 05:08 PM

Quote:

Originally Posted by OrleansLawyer (Post 221076)
If no - evidence of the material change will need to be adduced at the final hearing.

That's the answer. Next question is, can the OCL find a material change i.e., by suggesting changes to custody and access ?

LovingFather32 05-25-2017 07:30 PM

Quote:

Originally Posted by trinton (Post 221077)
That's the answer. Next question is, can the OCL find a material change i.e., by suggesting changes to custody and access ?

OCL can find whatever they want. They could say "Material Change" in big bold letters .. but a judge has final say if one actually occurred.

trinton 05-25-2017 07:48 PM

Quote:

Originally Posted by LovingFather32 (Post 221084)
OCL can find whatever they want. They could say "Material Change" in big bold letters .. but a judge has final say if one actually occurred.

Agreed. Now I'm trying to understand why a judge would entertain my request for OCL by granting me leave for motion and ultimitely appointing OCL.

It has been my understanding that a material change must be proven before OCL is appointed. I believe that argument was made by opposing counsel the very first time I tried to slip in an OCL request in one of my previous leaves for interim motion. I think I also read that on Canli somewhere.

Did judge possibly feel there has been a material change when judge granted leave this time around? The only thing judge said when leave was granted for OCL this time around was this has become very contentious and 7 year old caught in middle needs a voice and some peace. Other parent was of course opposing and was warned against costs.


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