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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 05-20-2014, 11:23 AM
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Default Is it possible to amend Notice of Motion or somehow ask for additional relief

Hi all,

I've served a notice of motion for relief regarding a number of items.

I would like to seek relief for other things. My notice (under 'sought orders') does include language " Any other such relieve as deemed just by the honorable court".

Does this allow me to seek the additional relief ? Or do I need another motion and affidavit ?

Last edited by plainNamedDad44; 05-20-2014 at 11:44 AM. Reason: grammar
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Old 05-20-2014, 03:11 PM
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Strict answer - you are limited to what you have asked for in your motion.

Caveat - if it is a reasonable extension, the courts can grant certain relief via their inherent jurisdiction.

What specifically do you want to add?
Example: If you set access times to be XXX, but you want to change 4:30 - 7:30 to be 5 - 8, you might get away with that by telling the judge of the change at the motion.

However, if you are bringing a motion for access and want to throw in spousal support, you need a new motion form for that.

If you have served, but not filed, your notice of motion, you can simply do up a new notice of motion to serve and file.
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Old 05-20-2014, 04:03 PM
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Thanks OL.

Each access visit (10:00am Saturday to 4:30pm Sunday, every other weekend) means 10 hours of driving. I am literally driving myself sick as I have to get back for work Monday morning. I have been doing this since Oct 2013. Driving through the winter was horrible. But I DIDN"T MISS A SINGLE VISIT.

I am seeking an order for relief which would require:

a. The respondent to drive to a half way point for drop off.
b. Costs of access. She took them and left town.
c. Longer visits (summer) recognizing my difficulty and cost of access.


The original motion dealt with
a) relief regarding her not disclosing documents after CC, several letters and a Form 20.
b) Relief from 60 day deadline created by Notice of Approaching Dismissal in light of the fact that OCL is not done and Respondent has not disclosed - as per point a) above. I am pleading I can't serve a Settlement conference notice as I am required to include a brief (my jurisdiction), and I cannot prepare a brief until OCL and document disclosure conclude.
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Old 05-20-2014, 04:09 PM
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Be careful plain name dad: focus your arguments on why this is best for the child, and not on your inconvenience. A judge will rip you to part otherwise.
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Old 05-20-2014, 04:26 PM
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thank you S.
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Old 05-20-2014, 06:14 PM
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Quote:
Originally Posted by Serene View Post
Be careful plain name dad: focus your arguments on why this is best for the child, and not on your inconvenience. A judge will rip you to part otherwise.

Sure, but surely there is a balance between 'inconvenience' and fairness.

Should I expected to have to go through this driving hell indefinitely ?


Community, please set me straight here. Ex knows this is killing me. I just refuse to give up .


Furthermore, can't it be argued that this arrangement, which is detrimental to their father, is not in the best interests of the children ?

Last edited by plainNamedDad44; 05-20-2014 at 06:18 PM.
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Old 05-20-2014, 06:34 PM
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Quote:
Be careful plain name dad: focus your arguments on why this is best for the child, and not on your inconvenience. A judge will rip you to part otherwise.
I don't agree, you can plead for your own benefit. You just shouldn't ask for money at the expense of the child.

Your poor child has to drive 10hrs every second week? That is hell. I'd quit my job and follow my ex if I were you.
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Old 05-20-2014, 06:37 PM
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Concerning other parent subsidizing your cost of travel, you may wish to consider:

Quote:
Undue hardship

10. (1) On either spouse’s application, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.

Circumstances that may cause undue hardship

(2) Circumstances that may cause a spouse or child to suffer undue hardship include the following:

...

(b) the spouse has unusually high expenses in relation to exercising access to a child;

...

Standards of living must be considered

(3) Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if it is of the opinion that the household of the spouse who claims undue hardship would, after determining the amount of child support under any of sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other spouse.
Citation: CanLII - Federal Child Support Guidelines, SOR/97-175
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Old 05-20-2014, 08:37 PM
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You might have some luck with points B and C of the relief you are requesting (consideration of the costs of access in setting child support, plus getting longer access in summer to compensate) rather than point A (ex driving the kids halfway). B and C seem consistent with the FCSG section OrleansLawyer is quoting, but A seems like a bit of a stretch. Plus, if your ex is unreasonable, do you really want to set up a situation where you have to depend on her to show up when and where she is supposed to with the kids?

In any case, this sounds like a separate motion rather than an amendment to your existing motion, unfortunately.
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