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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 04-07-2007, 08:35 PM
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Default Motion to Vary - Applicant's affidavit

I saw the reply to Susanna on the motion to vary thread. I was wondering if that information would pertain to an Applicant's affidavit as well. I am filling out one of those forms, but don't really know what to write on there, do I have to introduce everyone involved as well? I have written each paragraph on the affidavit to reflect and explain the changes in circumstances that I have asked in the motion to vary. It's to vary an order though, not a separation agreement. If anyone can give me some hints on this..it would be greatly appreciated.
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Old 04-08-2007, 01:53 AM
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dickstacie,

What I mention is a suggestion on how to proceed and is not legal advice in anyway. Keep in mind that I am just a member of a internet forum. You should seek independent legal advice where possible or consult at the FLIC to be absolutely sure.


Quote:
I saw the reply to Susanna on the motion to vary thread. I was wondering if that information would pertain to an Applicant's affidavit as well. I am filling out one of those forms, but don't really know what to write on there, do I have to introduce everyone involved as well? I have written each paragraph on the affidavit to reflect and explain the changes in circumstances that I have asked in the motion to vary. It's to vary an order though, not a separation agreement. If anyone can give me some hints on this..it would be greatly appreciated.

To answer your question, I believe it would. If your starting, confine your affidavit to relevant facts of the situation, and avoid hearsay. Watch absolute terms such as "all" and "never" etc. Include all the people that are involved in the situation.

If you have witness's or letter's from individuals with relevant substantiating information; Best to have them complete their own sworn affidavit.

However,

I suspect you will be required to schedule a Case conference since it is a variance of a previous order. Therefore, you will need to request a Case Conference with the Registrar first and then subsequent motion. I suspect you could schedule both dates up front.

You will need the following forms for your action:
  • Form 17 - Case Conference Notice;
  • Form 17A - Case Conference brief;
  • Form 14 - Notice of Motion;
  • Form 14A Affidavit general;
  • Form 14A Reply Affidavit - Optional to address any new issues or deny allegations etc
  • Form 6B Affidavit of Service;
  • Form 14C Confirmation (Perhaps 2 maybe required) One for Case Conference and an additional for motion.
  • Form 13 - Financial Statement

Once you have your Form 17 - Case Conference Notice, Form 17A - Case Conference brief, Form 14 - Notice of Motion and Form 14A Affidavit completed; Bring to the court house to the FLIC and have sworn. Then have the Registrar schedule dates and times for the case conference and motion on the respective forms.

Once the Registrar assigns and schedules the dates for the respective case conference and subsequent motion, they will apply the court seal.

Make copies of all the original documents. The original documents are always filed into the continuing record once a copy of such is served. Always keep a copy of the completed documents for yourself. Once the documents are served on the individual, file the original documents along with a completed Form 6B Affidavit of service into the continuing record stating the method of service, date time etc.

If spousal support is an issue without property at this time, you will need Form 13 Financial completed.

Certain documents are required to be sworn such as Form 14A affidavit, Form 6B - Affidavit of Service and Form 13 - Financial Statement.

The court forms can be found here:

http://www.ontariocourtforms.on.ca/e...mily/index.jsp

Once you serve and file your documents unto the individual; the other party will have to serve and file a Form 17A Case Conference Brief, Form 14A Affidavit and Form 13 financial on you. If any new issues are brought up in their Form 14A Affidavit or if you want to dispute some relevant facts; you have the option to complete and serve another supplementary Form 14A Affidavit (Otherwise known as a Reply affidavit which would state your version of facts.

No later than 2 pm - 2 days before the Case Conference and motion you will have to file a completed Form 14C for each date with Registrar. The 14C Confirmation Form is a private document between you and the Registrar that is not served on the other party which informs the court that the matter is going ahead and on what issues. If this document is not filed with the Registrar as per the time line, you case conference or motion will not be listed on the docket for the scheduled date.


They may try to short serve you at the last minute so be on guard. Pay articulate attention to your serving and filing deadlines for each document.

Its best if you Special Serve the individual in person rather than mail or courier fax etc the documents. Notice of Motion Form 14 and the accompany affidavit will have to be served by special service. To save yourself significant running around, complete all your documents for the case conference and motion at once, Attend the court house and have respective docs sworn where required - have seal applied, make copies - Special serve copies on the individual. Make and keep additional copies for yourself.

The waiting game: wait for their documents to be served on you. Once received, as I mentioned already you may want to complete a supplementary Reply Affidavit to contest certain facts or address new issues they thorough up. You cannot use this supplementary affidavit to bring up new issues so be thorough with your first Affidavit.


Some Tips:

They may try to short serve you at the last minute so be on guard. Pay articulate attention to your serving and filing deadlines for each document.


For counting days and service of documents see the Family Law Rules


http://www.e-laws.gov.on.ca/DBLaws/R.../990114a_e.htm
RULE 3: TIME

COUNTING DAYS

3. (1) In these rules or an order, the number of days between two events is counted as follows:
1. The first day is the day after the first event.

2. The last day is the day of the second event. O. Reg. 114/99, r. 3 (1).
COUNTING DAYS — SHORT PERIODS

(2) If a rule or order provides a period of less than seven days for something to be done, Saturdays, Sundays and other days when all court offices are closed do not count as part of the period. O. Reg. 114/99, r. 3 (2).

DAY WHEN COURT OFFICES CLOSED

(3) If the last day of a period of time under these rules or an order falls on a day when court offices are closed, the period ends on the next day they are open. O. Reg. 114/99, r. 3 (3).


(4) The following are examples of how time is counted under these rules:
1. Notice of a motion must be served not later than four days before the motion date (see subrule 14 (11)). Saturday and Sunday are not counted, because the notice period is less than seven days (see subrule (2)). Service on the day set out in the left column below is in time for the motion to be heard on the day set out in the right column below.



2. A respondent who is served with an application in Canada has 30 days to serve an answer (see subrule 10 (1)). A respondent who is served with an application on October 1 is in time if the answer is served on or before October 31. A respondent served on November 1 is in time if the answer is served on or before December 1.

3. If the last day for doing something under these rules or an order is New Year’s Day, January 1, which is a day when court offices are closed, the time expires on January 2. If January 2 is a Saturday, Sunday or other day when court offices are closed, the time expires on January 3. If January 3 is a day when court offices are closed, the time expires on January 4. O. Reg. 114/99, r. 3 (4); O. Reg. 544/99, s. 3 (1).
ORDER TO LENGTHEN OR SHORTEN TIME

(5) The court may make an order to lengthen or shorten any time set out in these rules or an order, except that it may lengthen a time set out in subrule 33 (1) (timetable for child protection cases) only if the best interests of the child require it. O. Reg. 114/99, r. 3 (5).


WRITTEN CONSENT TO CHANGE TIME

(6) The parties may, by consent in writing, change any time set out in these rules, except that they may not change a time set out in,
(a) clause 14 (11) (c) (confirmation of motion);

(b) subrules 17 (14) and (14.1) (confirmation of conference, late briefs);

(c) subrule 33 (1) (timetable for child protection cases);

(d) rule 39 (case management in Family Court of Superior Court of Justice);

(e) rule 40 (case management in Ontario Court of Justice); or

(f) rule 41 (case management in the Superior Court of Justice (other than the Family Court of the Superior Court of Justice)). O. Reg. 202/01, s. 2; O. Reg. 76/06, s. 3.
LATE DOCUMENTS REFUSED BY COURT OFFICE

(7) The staff at a court office shall refuse to accept a document that a person asks to file after,
(a) the time specified in these rules; or

(b) the later time specified in a consent under subrule (6), a statute that applies to the case, or a court order. O. Reg. 544/99, s.

Confirm everything I mentioned with the Registrar or the Family Law Information Centre at the court house. I think I covered mostly everything that you require to proceed. Keep the relevant court procedure guides handy for reference purposes.

Best luck



lv
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Old 04-08-2007, 09:21 PM
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I have gotten all the forms and had about an hour worth of advice from FLIC. I think I have all ground covered, it's just a matter of how to word stuff. I think I have it pretty down, never used never or always..lol. It's all fact which I don't know how my ex could argue against them, but I'm sure he'll find a way. Thanks again LV..you've helped more than you can imagine!
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Old 02-17-2010, 03:26 PM
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How long do I have to get an acknowledgement of service (Special Service card) reply internationally?
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