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Old 12-12-2014, 11:19 AM
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Default Late Service - should I accept

Community,

I have a motion upcoming next week, seeking expanded access to the children based on the OCL's disclosure.

As the motion is being heard next Wed (Dec 17), my understanding of the rules is that she needed to serve me yesterday, (as weekend days don't count as per rules).

So, I am thinking she is going to likely try and serve me somehow on the weekend when I pick up the children (its my access weekend). I am thinking of refusing service as she is late. Here is what could then happen:

1. She refuses to let me have the children for the weekend unless I accept service. I then must call police or leave without children.

or

2. She lets me have the children despite me not accepting service. Unlikely.


Fast forward to the day of the motion:

If I did not accept service on the grounds of not enough time then :

1. the Judge may adjourn. This would suck as then I don't have Christmas time with my children as this is part of the relief I am seeking.

OR

2. the Judge recognizes the repeated use of access to the children as a means of cohersion hears the motion, and slams STBX.


If I do accept service late, she has effectively provided me little to no time to review her response.


A little complicated, but any opinions as usual, are most welcome.


Best

Last edited by plainNamedDad44; 12-12-2014 at 11:21 AM.
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Old 12-12-2014, 11:28 AM
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IMO it's usually better to accept late service. If she presents it to you over the weekend you have lost zero court days anyways. In the worst case it can be perceived as one day late. It's not like she is handing it to you on the steps of the courthouse the day of the motion.

However it's your case and I don't know how complex it is and depending on what you are being served it may not affect much.
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Old 12-12-2014, 11:58 AM
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It sounds like you've got more to lose by refusing service than you do by accepting it. So even though it's a couple of days late, I would accept it. Advantages: no scene in from of the kids at pickup, things can move ahead on Wednesday, reduced likelihood that judge will adjourn. Disadvantage: you lose two days to read the document. Whether this is a really big disadvantage would depend, as the earlier poster said, on how complicated the motion is and what's in the document.
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Old 12-12-2014, 12:34 PM
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Access to your children should not be subject to your jumping through hoops.

You are within your right to refuse service.

Christmas is but one day. If your children do not get to exercise access because of the stunt she has pulled then it will reflect poorly on her in the end.

You can accept service and request that the date you received the document is noted by the court. Or you can refuse service and deal with the matter at an adjourned time.


Every time you are denied access to your children merely makes her look worse. Short term pain - long term gain?

Or

You can accept service and once you receive the document if needed you can request an adjournment noting the date you were served did not give you the requisite time needed.

Last edited by arabian; 12-12-2014 at 12:40 PM. Reason: add on to my post
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Old 12-12-2014, 12:46 PM
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Not accepting service of documents is a good way to come across as unreasonable. Also bear in mind: the other party can send them to you by courier and you have been served sufficiently for responding materials.

If the documents leave you with too little time to reply, you can ask that they not be considered due to you having insufficient time to review them.

A few points to bear in mind:
- How long did the other side have to respond? If they turned the documents around fairly quickly but timelines were short then it is reasonable for their documents to be accepted late. Conversely, if they had a month to prepare and were late then that is their fault.
- If they serve you on the weekend, why can't you prepare a response by 2:00 p.m. Monday (for your reply materials)? In the alternative, you could prepare a response for the motion, serve the other side once ready and ask the reply affidavit to go in over the bench.

Quote:
You are within your right to refuse service.
If someone slaps you with papers and says "you are now served", you are served. If you happen to to leave those papers on the ground then you are abandoning your property.

From a practical perspective, the other side will file the documents with the affidavit of service. If you disagree with it later, the judge will have already read the materials. Saying "I knew they were trying to serve me so I fled to inconvenience them" is going to make you appear rigid and unreasonable: neither of these are qualities associated with healthy parenting.

Quote:
You can accept service and request that the date you received the document is noted by the court.
In Ontario the affidavit of service form requires the date and method of service to be set out.
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Old 12-12-2014, 01:00 PM
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This invariably would come down the judge's discretion I believe. It has been my experience, in my jurisdiction, that judges are lenient on self-represented individuals and not-so-lenient on those represented by legal counsel regarding Rules of Court.

However, I see from your other thread that you are the moving party (filed the motion for Wednesday's court date). From what I can piece together here it seems that your ex may be attempting to piggy-back on your motion with another motion in her response as opposed to filing a cross-motion?

Last edited by arabian; 12-12-2014 at 01:06 PM.
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Old 12-12-2014, 02:19 PM
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Quote:
Originally Posted by arabian View Post
This invariably would come down the judge's discretion I believe. It has been my experience, in my jurisdiction, that judges are lenient on self-represented individuals and not-so-lenient on those represented by legal counsel regarding Rules of Court.

However, I see from your other thread that you are the moving party (filed the motion for Wednesday's court date). From what I can piece together here it seems that your ex may be attempting to piggy-back on your motion with another motion in her response as opposed to filing a cross-motion?

Is that possible ? Motion in a response ?

I have decided I will accept service.
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Old 12-12-2014, 02:22 PM
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Quote:
Originally Posted by OrleansLawyer View Post
Not accepting service of documents is a good way to come across as unreasonable. Also bear in mind: the other party can send them to you by courier and you have been served sufficiently for responding materials.

If the documents leave you with too little time to reply, you can ask that they not be considered due to you having insufficient time to review them.

A few points to bear in mind:
- How long did the other side have to respond? If they turned the documents around fairly quickly but timelines were short then it is reasonable for their documents to be accepted late. Conversely, if they had a month to prepare and were late then that is their fault.
- If they serve you on the weekend, why can't you prepare a response by 2:00 p.m. Monday (for your reply materials)? In the alternative, you could prepare a response for the motion, serve the other side once ready and ask the reply affidavit to go in over the bench.


If someone slaps you with papers and says "you are now served", you are served. If you happen to to leave those papers on the ground then you are abandoning your property.

From a practical perspective, the other side will file the documents with the affidavit of service. If you disagree with it later, the judge will have already read the materials. Saying "I knew they were trying to serve me so I fled to inconvenience them" is going to make you appear rigid and unreasonable: neither of these are qualities associated with healthy parenting.



In Ontario the affidavit of service form requires the date and method of service to be set out.
I will accept service. Frankly I am looking for any tactical advantage possible. But I think the relief sought with the backing of the OCL (fingers crossed) will be enough to win the day.

Thank you all.
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Old 12-12-2014, 02:39 PM
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Quote:
Originally Posted by plainNamedDad44 View Post
Is that possible ? Motion in a response ?

I have decided I will accept service.


My ex's lawyer attempted this several times but was dressed down quite severely by the judge.


Hope you do get to see your kids during Christmastime - without any drama.
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Old 12-12-2014, 03:25 PM
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Quote:
Is that possible ? Motion in a response ?
That is called a cross motion.

How acceptable it is depends on the issues. For example, if Bob brings a motion for access, Betty might bring a cross-motion for primary residency and child support and both would be heard together.

To compare, if Betty were to bring a motion for disclosure of documents, and Bob brought a cross motion for access, some judges would question why Bob had not brought his motion for access on his own.

How acceptable the practice is depends on the region. Some court houses regularly allow this (more done at once), others disapprove. Consult your local FLIC or trial co-ordinator to see.
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