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Old 02-10-2013, 09:29 AM
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If an application for a motion to change has been served on the opposing party, is it correct to assume that they have a maximum of 30 days in which to respond?

The motion to change relates to the adjustment of child support which our existing agreement encourages parties to do so via consent on an annual basis. I have sent numerous letters to try and settle this, including an offer to settle since October of last year. Having received no response what so ever, I was forced to bring forward an application.

The "Application" was served by the clerk at the court house when the opposing party came into file their own papers on another matter last month. The clerk has completed an affidavit of service to the effect, so there is no opportunity to dispute the fact that service was never carried out.

If the opposing party fails to respond, can one then submit a 14b motion on the basis that no response was received in the time given and therefore it is reasonable to assume the motion is unopposed.

Has anyone any experience of having done this successfully?

Last edited by Nadia; 02-10-2013 at 09:37 AM.
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Old 02-10-2013, 11:39 AM
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Yes, I've filed a 14b motion successfully 'over the counter' and the order was amended.
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Old 02-10-2013, 11:01 PM
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Yup, to the best of my knowledge, 30 days is the case. I was recently served and need to respond within 30 days. However, in my case there was no ask... just straight to litigation.
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Old 02-17-2013, 11:01 AM
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I was just sent the form 15C consent motion to change (for section 7 expenses) but nothing else. No warnings, emails or anything else since our final orders two years ago.
Is this the correct procedure? I was not given anything else... not served for motion etc.
I am not at all content with what is included, but dont have a lawyer What are my next steps?
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Old 02-18-2013, 06:35 AM
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A 15C Consent Motion is usually sent over to the opposing party only when both parties are in agreement on the proposed changes. Not sure why they would do this, without any prior discussion with you. I think you should have also received an application of Motion to Change along with Form 15C. To send it by itself, seems very bizzare.

Obviously you are not in agreement with the changes proposed. You should send an email and if necessary a registered letter informing the opposing party that you were VERY surprised to receive this Consent Motion and that you are not in agreement with the changes proposed.

It will then be up to the opposing party to bring forward an application for a Motion to Change and have that served upon you in person. Once they have done this, you have 30 days in which to respond.

Bear in mind that a Motion to Change is largely dependent on a siginificant change in circumstances. The onus is on the party bringing forward the Motion to Change to meet the threshold and not on you to demonstrate that your court order should remain as it is.

Last edited by Nadia; 02-18-2013 at 06:50 AM.
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Old 03-01-2013, 12:06 AM
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Thanks Nadia!

I called the courthouse this morning to determine if anything else was filed with the courts recently, and learned nothing as of recently.

The clerk was just as surprised when I told her that this form was sent to me directly, filled out by the opposing lawyer without having any other information or even mention of the components listed in the consent..

Im still confused why they went this route.

And now I am being threatened they will bring forth a motion when I asked for an extension. Two weeks doesn`t seem like enough time to seek legal counsel and the nice opposing lawyer after asking for an extension, gave me till next week to respond, find legal advice etc

Is there no rule of 30 days or something down that line...

Last edited by tugofwar; 03-01-2013 at 12:10 AM.
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Old 03-01-2013, 08:02 AM
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It appears the lawyer operates very similarly to the way in which your ex operates: underhanded and perhaps taking advantage of the fact that you do not have a lawyer representing you.

Make sure you request an adjournment in writing after you have been served. But you were only served a consent order not a motion to change. So at this stage there is nothing to adjourn.

They first need to file an application for a motion to change. You are provided with 30 days in which to respond. If it is not related to Child Support then they must serve you with a case conference brief after that and schedule a case conference. You can request an adjournment to the case conference on grounds that you need to retain legal counsel. But you could attend and probably handle this by yourself.

Only then can they serve you with an "actual" motion to change. If you still have not been able to retain legal counsel and need more time to prepare, you are within your rights to request an adjournment. Again make sure you do this in writing and on the confirmation that needs to be sent two days before the scheduled motion. I was once advised by FLIC to submit a cross-motion for adjournment which you could also consider but I thought it was a little over the top. The idea of the cross motion was to let the court know as early as possible that you had requested an adjournment and the opposing party were being unreasonable. You would be entitled to costs if the Judge agreed with you.

In short do not respond or engage with opposing party/lawyer unless you have been served the proper papers, unless of course you receive an offer to settle, in which case you respond with a counter-offer of your own. Let them threaten you all they want, I know it is unplreasent but I suspect they are hoping you will cave in. If you can - draft an offer to settle and make sure this is served according to the rules. This will give you the upper hand in the meantime.

Last edited by Nadia; 03-01-2013 at 08:10 AM.
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Old 03-01-2013, 10:40 AM
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Quote:
Originally Posted by oink View Post
What do you mean by "served according to the rules" in terms of offer to settle?
Courts of Justice Act - O. Reg. 114/99

RULE 18: OFFERS TO SETTLE

DEFINITION

18. (1) In this rule,
“offer” means an offer to settle one or more claims in a case, motion, appeal or enforcement, and includes a counter-offer. O. Reg. 114/99, r. 18 (1).
APPLICATION

(2) This rule applies to an offer made at any time, even before the case is started. O. Reg. 114/99, r. 18 (2).
MAKING AN OFFER

(3) A party may serve an offer on any other party. O. Reg. 114/99, r. 18 (3).
OFFER TO BE SIGNED BY PARTY AND LAWYER

(4) An offer shall be signed personally by the party making it and also by the party’s lawyer, if any. O. Reg. 114/99, r. 18 (4).
WITHDRAWING AN OFFER

(5) A party who made an offer may withdraw it by serving a notice of withdrawal, at any time before the offer is accepted. O. Reg. 114/99, r. 18 (5).
TIME-LIMITED OFFER

(6) An offer that is not accepted within the time set out in the offer is considered to have been withdrawn. O. Reg. 114/99, r. 18 (6).
OFFER EXPIRES WHEN COURT BEGINS TO GIVE DECISION

(7) An offer may not be accepted after the court begins to give a decision that disposes of a claim dealt with in the offer. O. Reg. 114/99, r. 18 (7).
CONFIDENTIALITY OF OFFER

(8) The terms of an offer,
(a) shall not be mentioned in any document filed in the continuing record; and
(b) shall not be mentioned to the judge hearing the claim dealt with in the offer, until the judge has dealt with all the issues in dispute except costs. O. Reg. 114/99, r. 18 (8).
ACCEPTING AN OFFER

(9) The only valid way of accepting an offer is by serving an acceptance on the party who made the offer, at any time before,
(a) the offer is withdrawn; or
(b) the court begins to give a decision that disposes of a claim dealt with in the offer. O. Reg. 114/99, r. 18 (9).
OFFER REMAINS OPEN DESPITE REJECTION OR COUNTER-OFFER

(10) A party may accept an offer in accordance with subrule (9) even if the party has previously rejected the offer or made a counter-offer. O. Reg. 114/99, r. 18 (10).
COSTS NOT DEALT WITH IN OFFER

(11) If an accepted offer does not deal with costs, either party is entitled to ask the court for costs. O. Reg. 114/99, r. 18 (11).
COURT APPROVAL, OFFER INVOLVING SPECIAL PARTY

(12) A special party may make, withdraw and accept an offer, but another party’s acceptance of a special party’s offer and a special party’s acceptance of another party’s offer are not binding on the special party until the court approves. O. Reg. 114/99, r. 18 (12).
FAILURE TO CARRY OUT TERMS OF ACCEPTED OFFER

(13) If a party to an accepted offer does not carry out the terms of the offer, the other party may,
(a) make a motion to turn the parts of the offer within the court’s jurisdiction into an order; or
(b) continue the case as if the offer had never been accepted. O. Reg. 114/99, r. 18 (13).
COSTS CONSEQUENCES OF FAILURE TO ACCEPT OFFER

(14) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:
1. If the offer relates to a motion, it is made at least one day before the motion date.
2. If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
3. The offer does not expire and is not withdrawn before the hearing starts.
4. The offer is not accepted.
5. The party who made the offer obtains an order that is as favourable as or more favourable than the offer. O. Reg. 114/99, r. 18 (14).
COSTS CONSEQUENCES — BURDEN OF PROOF

(15) The burden of proving that the order is as favourable as or more favourable than the offer to settle is on the party who claims the benefit of subrule (14). O. Reg. 114/99, r. 18 (15).
COSTS — DISCRETION OF COURT

(16) When the court exercises its discretion over costs, it may take into account any written offer to settle, the date it was made and its terms, even if subrule (14) does not apply. O. Reg. 114/99, r. 18 (16).
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Old 03-01-2013, 10:40 AM
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Oink,

You have to make sure service is carried out properly in a method that can be traced - e.g registered mail and then complete a sworn affidavit of service. You then have to make sure you file the affidavit of service itself with the court.
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Old 03-01-2013, 05:05 PM
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My motion to change was related to an adjustment to Child Support. Has not been adjusted in four years despite annual increase income every year.

We already have a consent order related to Child Support allowing for parties to adjust on annual basis by way of exchange of financial information and failing an agreement a party can submit an application with the condition that the opposing party to pay costs if an application is necessary.

So, after almost 10 months of trying to settle this out of court, I was forced to bring forward a motion to change application.

In response, the opposing party did the following:

1. Initially vehmently denied (in writing) that he had been served my application for motion to change

2. Presented with an AOS completed by the court staff who served him, he grudgingly agreed he had in fact been served and prepared a response

3. In his response he claimed he is owed child support because he has the children over 40% of the time. (He has difficulty being available for the children on his court ordered access - alternative weekends and every Wednesday night, and also claims in an motion of his own that has been adjourned to June that he has been denied his court ordered access). Obviously both claims can not be true.

4. Then he argued he should in fact not have to pay any child support because he is now applying for shared custody and 50/50 residential. (I have sole custody by consent for the past 6 years. He does not provide any grounds for why he now feels shared custody or a change in access is appropriate but only that his request appears to have come at a time where child support is being adjusted).

Given my application was about Child Support only - is the respondent allowed to bring up any other issue unrelated to what they are supposed to respond to?

Given the opposing party has been prohibited from bringing forward any motions without first seeking leave from the court, would this not apply here? I mean can he bring forward an application for change in custody in response to my motion for child support without first seeking leave from the honorable court as ordered?

Last edited by Nadia; 03-01-2013 at 05:22 PM.
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