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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 01-21-2007, 11:22 AM
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Default Procedural Help LV

LV,

1) I am unsure as to whether my motion would be a long or short motion for varying a final Order based on Fraud, Material change of circumstances.
a) which one, any ideas?

2) My understanding for the short motion, just a notice of Motion and an affidavit are required but for a long motion a factum is required, and that 30 days notice is required by special service for both, as per the Family Law Rules

a) what is the difference between special service and regular service
b) is the 30 days correct?

Thanks LV,
Mcbroke
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Old 01-22-2007, 12:50 AM
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mcb,

as you mentioned,


Quote:
1) I am unsure as to whether my motion would be a long or short motion for varying a final Order based on Fraud, Material change of circumstances.
a) which one, any ideas?
The difference being is that long motions require Factums and for short motions the factum is optional.

If it was me, I would do up the Factum (no more than 20 pages in length) where you could refer to laws and rules and case authorities on the issue. It is basically your legal arguement and you are trying to persuade the Judge on your stance. Some things to remember; First point writing and write it in the active voice rather than passive. Wide Margins and 1.5 - double spaced lines.

Quote:
2) My understanding for the short motion, just a notice of Motion and an affidavit are required but for a long motion a factum is required, and that 30 days notice is required by special service for both, as per the Family Law Rules
For a short motion, affidavit and notice of motion is required along with fresh financial documents. I believe you can serve your notice of motion at least 4 days before the motion. However, financial documents have to be served at least seven days before the motion. It is best to give as much notice as possible and special serve the documents right away for the motion to prevent adjournment. The other party will most likely serve you their documents at the last minute so therefore be prepared to complete an additional Reply affidavit to address any new issues they bring up. As soon as the documents are served, be sure to file same with the Registrar.

Quote:
a) what is the difference between special service and regular service
b) is the 30 days correct?
The motion documents will be required to be served by sspecial service which is basically defined as:


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

SPECIAL SERVICE

(3) Special service of a document on a person is carried out by,

(a) leaving a copy,

(i) with the person to be served,

(ii) if the person is or appears to be mentally incapable in respect of an issue in the case, with the person and with the guardian of the person’s property or, if none, with the Public Guardian and Trustee,

(iii) if the person is a child, with the child and with the child’s lawyer, if any,

(iv) if the person is a corporation, with an officer, director or agent of the corporation, or with a person at any place of business of the corporation who appears to be managing the place, or

(v) if the person is a children’s aid society, with an officer, director or employee of the society;

(b) leaving a copy with the person’s lawyer of record in the case, or with a lawyer who accepts service in writing on a copy of the document;
(c) mailing a copy to the person, together with an acknowledgment of service in the form of a prepaid return postcard (Form 6), all in an envelope that is addressed to the person and has the sender’s return address (but service under this clause is not valid unless the return postcard, signed by the person, is filed in the continuing record); or

(d) leaving a copy at the person’s place of residence, in an envelope addressed to the person, with anyone who appears to be an adult person resident at the same address and, on the same day or on the next, mailing another copy to the person at that address. O. Reg. 114/99, r. 6 (3).

SPECIAL SERVICE — DOCUMENTS THAT COULD LEAD TO IMPRISONMENT

(4) Special service of the following documents shall be carried out only by a method set out in subclause (3) (a), unless the court orders otherwise:

1. A notice of contempt motion.

2. A summons to witness.

3. A notice of motion or notice of default hearing in which the person to be served faces a possibility of imprisonment. O. Reg. 114/99, r. 6 (4).


motions with notice

See Rule 14 (11)

MOTION WITH NOTICE

(11) A party making a motion with notice shall,

(a) serve the documents mentioned in subrule (9) or (10) on all other parties, not later than four days before the motion date;

(b) file the documents as soon as possible after service, but not later than two days before the motion date; and


(c) file a confirmation (Form 14C) not later than 2 p.m. two days before the motion date. O. Reg. 114/99, r. 14 (11); O. Reg. 202/01, s. 4 (2).

NO LATE DOCUMENTS

(11.1) No documents for use on the motion may be served or filed after 2 p.m. two days before the motion date. O. Reg. 202/01. s. 4 (3).

See these guides on motions

http://www.attorneygeneral.jus.gov.o.../scj_part5.pdf

serving documents

http://www.attorneygeneral.jus.gov.o...scj_part7a.pdf

and general

http://www.attorneygeneral.jus.gov.o...cj/default.asp

http://www.attorneygeneral.jus.gov.o...fc/default.asp


http://www.attorneygeneral.jus.gov.o...cj/default.asp

Practice directions on long and short motions

http://www.ontariocourts.on.ca/super...procedures.htm

Some hints for factum writing

http://www.ottawadivorce.com/forum/s...ghlight=factum


continued

lv
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Old 01-22-2007, 12:51 AM
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For the Factum here is a sample:

The Factum

What is a Factum?

A concise statement, without argument, of the facts and law relied on by a party.

Parts of a Factum

Check the relevant rule of the applicable statute to determine whether the relevant rule requires a particular structure to the factum.

Where a particular structure is not required, the following structure is generally used:

· Introduction
· Facts
· Issues and the Law
· Order Requested


Introduction

You should:
  • describe the purpose of the motion/application/appeal;
  • identify the party bringing the proceeding in which the factum is filed; and
  • be concise and to the point.


How NOT to draft the Introduction

This is a motion for contempt against the defendant, John Smith (also known as Sam Smith), whom the plaintiff says has flagrantly defied his obligations as a judgment/debtor of John Smith and has wilfully disobeyed the order of Madame Justice Green dated May 25, 1995.

Comments

Where there is only one defendant, the defendant should either be described as “the defendant” or by his own name; where there are multiple defendants, use only name labels, i.e. John Smith (“Smith”).

Inflammatory language should not be used to describe the state of mind of the party unless the state of mind is a fact essential to the argument. If not an essential fact, such language insults the bench and reduces the impact of the argument.

The paragraph uses too many words.

How TO draft the Introduction

This is a motion to declare the defendant in contempt of the order of Madame Justice Green dated May 25, 1995.


Facts

Should succinctly state only the relevant and established facts required to succeed on the motion/application/appeal.

Should tell a story that flows in a logical and interesting way.

In some cases it may be appropriate to use descriptive words to describe the party (e.g. the borrower, the landlord) to assist in the flow of the story.

Never misstate or mislead the facts.

Use sub-headings to highlight your point and to assist in the flow of the story.

For each fact, cite the source of the fact (e.g. Affidavit, transcript of evidence, etc.)

How NOT to draft the Facts

The respondent was in default of a written lease entered into by the parties on October 28, 1997 by failing to pay for expenses on the property and was verbally abusive to the applicant and therefore was not entitled to renew the lease after it expired pursuant to the option to renew contained in the lease.

Smith Affidavit, paras. 3-10

Comments

The paragraph links too many facts together and is confusing.

The fact that the tenant was verbally abusive is not relevant to the issue of whether the tenant was entitled to exercise the option to renew pursuant to the Lease.

How TO draft the Facts

The Lease

On October 28, 1987, a written lease was made between the applicant as lessor and the respondent as lessee (the “Lease”) to lease premises at 2007 Bay Street, Toronto, Ontario (the “Leased Premises”).

Affidavit of James Smith, sworn July 15, 1996, Application Record, Tab 2 (“Smith Affidavit”), para. 4
The Lease was for an initial term of three years commencing January 1, 1988 with three consecutive options to renew for a term of two years each, provided that the respondent was not in default or in breach of the Lease at the end of any such term.
Smith Affidavit at para. 7; Exhibit “A”, Application Record, Tab 2A

Pursuant to the Lease, the respondent was required to pay for all expenses on the Leased Premises and the failure to pay for such expenses constituted an event of default.
Smith Affidavit at para. 8


Respondent’s Default under the Lease


The respondent failed to pay for the heating charge on the Leased Premises for the months of October to December, 1990 and such default under the Lease continued until January 1, 1991. The respondent was therefore not entitled to exercise the option to renew on January 1, 1991.

Smith Affidavit at para. 9



Issues and the Law

Read the relevant rule to determine whether a statement of the issue raised is required, and if so, raise each issue in the form of a question (e.g. “Did the trial judge err by ... ?”).

If a statement of the issue is not required by the relevant rule, you may wish to simply call this part “THE LAW”.

Cite the authorities you intend to rely on.

Where there are multiple cases for the same proposition of law, cite only the general decision from the highest authority unless there are some lower court decisions which expand upon the general proposition and are helpful to you, in which case, include these lower court decisions.

Generally should not contain argument (do not mistake persuasive language which does not misstate anything as “argument”).

Do not cite law on a point that has been admitted or is not in issue.

Avoid citing trite law.

Never misstate or mislead the law as such carelessness could lead to a substantial loss of your credibility before the judge.

Consider including a quotation from a pivotal case if the quotation is not unduly lengthy and is particularly helpful to your case.

Where more than one ground is being argued and/or where there are several components to a legal test, use sub-headings.

How NOT to draft the Law

The plaintiff is unable to rebut the presumption in law that there is prejudice to the defendant, given that it has been over four years since the limitation period expired in this case and the plaintiff has not yet set the matter down for trial.

Farrar v. McMullen, [1971] 1 O.R. 709 (C.A.) at 710.

Comments

The paragraph does not adequately explain the presumption to enable the judge to determine whether the presumption applies in this case.

How TO draft the Law

Applicable Principles on a Motion to Dismiss for Delay


General Principles

It is well established that a court ought to dismiss an action where the inexcusable delay caused by the plaintiff or his lawyers has been such as to give rise to a substantial risk that a fair trial of the issues will not be possible.

Evenden v. Davy (1991), 54 O.A.C. 77 (Div. Ct.) at 78;


The Impact of Limitation Periods

Undue delay after the expiry of a limitation period will give rise to a presumption that there is prejudice to the defendant. The reason for this presumption is that it can be assumed that the recollection of the defendants and that of their witnesses will be eroded as time passes.

Farrar v. McMullen, [1971] 1 O.R. 709 (C.A.) at 710;

Burwood Farms v. Pacific Western Airlines (1987), 21 C.P.C. 186 (Ont. H.C.J.) at 190.



Order Requested

The order requested should state the order that the court will be asked to make, including any order as to costs.

How NOT to draft the Order Requested

The plaintiff respectfully requests that it be granted the relief requested in the notice of motion, including costs.

Comments

The key is to make your factum as complete as possible as this may be the only material the judge has an opportunity to read before the hearing. The relief requested should be specifically set out for the judge in this part.

How TO draft the Order Requested(Be Assertive)

possession of the mortgaged property;

summary judgment for $200,000 for principal and interest to January 31, 1996;

interest from January 31, 1996, to date of judgment at 11% per annum; and

its costs of the action, including the motion, on a solicitor and client basis.


Although the issues are different you can find some Factums here

http://www.usask.ca/nativelaw/factum....php?menu=type

http://www.usask.ca/nativelaw/factums/view.php?id=2

and here is one that is structured for the Ontario Courts

http://www.usask.ca/nativelaw/factums/view.php?id=60




lv

Last edited by logicalvelocity; 01-22-2007 at 01:01 AM.
  #4 (permalink)  
Old 01-22-2007, 02:08 AM
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Default THankyou ever so much LV, just one question

This is the time of service set down by the family law rules for Motion to change an Order

SPECIAL SERVICE, MINIMUM NOTICE PERIOD — MOTION TO CHANGE FINAL ORDER OR AGREEMENT

(1) Notice of a motion to change a final order or agreement and the supporting evidence shall be served by special service (subrule 6 (3)), and not by regular service,

(a) not later than 30 days before the motion is to be heard, if the party to be served resides in Canada or the United States of America;

(b) not later than 60 days before the motion is to be heard, if the party to be served resides elsewhere. O. Reg. 114/99, r. 15 (1).

This is the timeline I referred to originally, is this correct?

And as per:

HTML Code:
The other party will most likely serve you their documents at the last minute so therefore be prepared to complete an additional Reply affidavit to address any new issues they bring up
He is notorious for this, his poker game if you would.

Thanks again Lv
another late night
Nothing to worry about, plenty to think about.
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Old 01-22-2007, 08:13 AM
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mcb,

yes - 30 days is correct for serving the documents by special service.

Either hand them to the party directly or to their lawyer directly. The other option is to use a process server. Once the documents are served, file them right away into the continuing record.

Its not uncommon to be short served documents at the last minute; Some use this tactic to delay the case or to put pressure on you so that you have insufficient amount of time to complete a Reply affidavit to address any new issues that they bring up in their affidavit.

Don't forget about form 14C confirmation which must be filed before 2 p.m. at least 2 days before the motion.

lv
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Old 01-22-2007, 10:02 AM
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Default Thank you LV

I appreciate everything you have done, this has definitely routed my focus.

All the best
Mcbroke
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