Ottawa Divorce .com Forums


User CP

New posts

Advertising

  Ottawa Divorce .com Forums > Main Category > Divorce & Family Law

Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

Reply
 
LinkBack Thread Tools
  #1 (permalink)  
Old 04-25-2014, 06:34 PM
Senior Member
 
Join Date: Mar 2013
Posts: 1,587
Serene is on a distinguished road
Default Motion and Costs question

As you know we settled on day trial was supposed to start in January 2014. The parties did not deal with three holiday periods with the minutes of settlement. However, the three holiday periods still remain in the Separation Agreement but mom is refusing to follow them. It says that the three holiday (long weekends) will be shared equally in the Separation Agreement. Given mom had them for last two years they should be dad's for next two years but at the very least for this year. She is arguing that regular access take place. This cannot be true because the Separation Agreement speaks to these three weekends specifically and states they must be shared equally - and the Separation agreement says it is the "XXX weekend" so not just the holiday Monday...

Dad has sent mom an email and asked if she will be cooperating in giving the holidays to dad. Last week she tore one side up and down him about it and then of course just dropped it. As far as she is concerned she is taking and keeping the holiday periods (and she always has regardless of what the SA states).

So my question is: If dad has to file a motion on Monday (he has asked her to advise her cooperation by end of weekend) and at some point after he files his motion she ends up consenting to giving dad the weekends - Does dad still have the right to pursue costs?

I ask this because he doesn't anticipate that she will agree to do what the SA states. And she might if she realizes dad is willing to seek the courts help. But we don't want this to become a pattern where he takes a day off to go to court house and file a motion only for her to agree the next day or soon after the paperwork is filed.

Thoughts?
Reply With Quote
  #2 (permalink)  
Old 04-25-2014, 07:22 PM
arabian's Avatar
Senior Member
 
Join Date: Jan 2011
Location: Western Canada
Posts: 9,842
arabian will become famous soon enough
Default

Do you not have a parenting coordinator? Seems a waste of court time, and yours, to have to be continually litigating this matter.
Reply With Quote
  #3 (permalink)  
Old 04-25-2014, 07:25 PM
Senior Member
 
Join Date: Mar 2013
Posts: 1,587
Serene is on a distinguished road
Default

Yup total waste of time.

Parenting coordinators are on consent. And there is no need to seek a parenting coordinator - it's in the separation agreement...she just refuses to abide.

Let me explain:

If it benefits her - follow the agreement/order.
If it benefits dad, ignore the agreement/order and make it so it benefits mom.
Reply With Quote
  #4 (permalink)  
Old 04-25-2014, 07:28 PM
arabian's Avatar
Senior Member
 
Join Date: Jan 2011
Location: Western Canada
Posts: 9,842
arabian will become famous soon enough
Default

Then you make your application/motion.

Of course you will be able to prove you tried to do this out-of-court.

Hope you are successful. I know too well how expensive/annoying it is to be pitted against unreasonable ex's.
Reply With Quote
  #5 (permalink)  
Old 04-26-2014, 06:19 PM
Senior Member
 
Join Date: Mar 2013
Posts: 1,587
Serene is on a distinguished road
Default

We just heard from mom and they don't want to cooperate with following the Separation Agreement. So I guess it is a motion we go. Funny enough, they want us to serve them as they "no longer have a lawyer" although their lawyer is indeed still on the record... needless to say we will be serving the lawyer.

What do you suggest we put in the motion paperwork? We know the Order we want but where it states the law that we are relying on - do we put the clause of the Separation Agreement that speaks to these weekends?
Reply With Quote
  #6 (permalink)  
Old 04-26-2014, 07:14 PM
Senior Member
 
Join Date: May 2011
Location: Ontario
Posts: 3,035
Berner_Faith will become famous soon enough
Default

I don't know much about what you are asking, but what weekends exactly are we talking about? I am just curious
Reply With Quote
  #7 (permalink)  
Old 04-26-2014, 07:27 PM
Senior Member
 
Join Date: Mar 2013
Posts: 1,587
Serene is on a distinguished road
Default

Holiday weekends as stated in the separation agreement to be shared equally. Mom is refusing to give them to dad this year. Yet she had them last year. The weekends are specifically named in the SA.
Reply With Quote
  #8 (permalink)  
Old 04-26-2014, 08:23 PM
arabian's Avatar
Senior Member
 
Join Date: Jan 2011
Location: Western Canada
Posts: 9,842
arabian will become famous soon enough
Default

My life has basically been one long motion. Perhaps I can help. What specifically do you need help with?

I'd refer to Rules of Court of your Province

You have an application and an affidavit which are filed. Then you write a covering letter to opposing counsel and attach the filed court documents.

The application format that I have used is:

Court File Number:
Court:
Judicial Centre:
Plaintiff:
Defendant:
Document: Application by Serene's Husband Plaintiff/Defendant
Address for Service
and Contact Information
of Party Filing this Document:

Notice to Respondent: Crazy lady - This application is made against you. You are a responent. You ahve the right ot state your side of the matter before the judge.

To do so, you must be in Court when the application is heard as shown below:

Date:
Time:
Where:
Before Whom: Justice in Chambers
Go to the end of this document to see what else you can do and when you must do it.

Remedy claimed or sought:

1. An Order that the Defendant ......
2. Directing that the Defendant .....
3. Directing specifically ......
4. Costs of this application.
5. Such other relief as the Court may see fit.

Grounds for making this application:

6. The Defendant is in contempt of the Order of xxxxx for her failure to ....
7. The Defendant is likely to continue to disregard previous court orders....
8. The Defendant has .....

Material or evidence to be relied on:

9. The Separation Agreement in this action;
10. The Order of Justice xxx, granted on xxxx
11. Affidavits sworn in this action;
12. Familiy Chambers materials filed by the parties regarding their appearance on xxxx
13. Affidavit of xxxx sworn on xxxxx

Applicable rules:

14. list rules of court applicable to this action

Applicable Acts and regulations:

15. list Divorce Act (Canada)
16. Rules of Court (Ontario)

Any irregularity complained of or objection relied on:

17.

How the Application is proposed to be heard or considered:

18.

Warning: If you do not come to Court in person or by your lawyer, the Court may give the applicant(s).......


Anyhow that's basically the application part. Of course you might have a variance in Ontario.
Reply With Quote
  #9 (permalink)  
Old 04-26-2014, 08:39 PM
Senior Member
 
Join Date: Mar 2013
Posts: 1,587
Serene is on a distinguished road
Default

Thanks Arabian, you gave me some good ideas on text to put within our motion paperwork. We live in Ontario so there is a form to complete (motion form). I guess for laws I put family law act and divorce act?
Reply With Quote
  #10 (permalink)  
Old 04-26-2014, 08:44 PM
Senior Member
 
Join Date: Mar 2013
Posts: 1,587
Serene is on a distinguished road
Default

I have to add - this is so silly. Shared equally means shared equally. If you had them last year then it switches to other parent this year. To test the courts and face legal costs just to push the envelope in spite is silly. It is also testament to how reasonable and cooperative a person is.

We will be serving with an offer to settle as well. I realize most offers say each party to bear their own costs. But frankly, we are tired of this. Dad is wanting to put a dollar amount in the offer to settle as he will miss work just to file motion paperwork. Thoughts? Suggested wording?
Reply With Quote
Reply


Currently Active Users Viewing This Thread: 1 (0 members and 1 guests)
 
Thread Tools

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is On
Trackbacks are On
Pingbacks are On
Refbacks are On


Similar Threads
Thread Thread Starter Forum Replies Last Post
Evaluating Success of a Motion to determine costs Marcos Divorce & Family Law 11 02-25-2013 02:33 AM
FRO Motion and Costs + Final Order (imputed income) vs Actual income sahibjee Financial Issues 18 10-04-2012 09:12 PM
Self representation - Contempt Motion and Costs? representingself Financial Issues 6 07-08-2010 07:37 PM
Motion for costs Heart-broken dad Divorce & Family Law 5 09-30-2009 09:00 AM
Legal Aid serrona Divorce & Family Law 1 10-27-2006 07:00 PM


All times are GMT -4. The time now is 01:52 AM.