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-   -   Question about Form 31 - Notice of Contempt Motion - where do I put requested relief? (http://www.ottawadivorce.com/forum/f3/question-about-form-31-notice-contempt-motion-where-do-i-put-requested-relief-21315/)

plainNamedDad44 09-12-2017 10:29 AM

Question about Form 31 - Notice of Contempt Motion - where do I put requested relief?
 
Hi Community,

I am bringing forward a contempt motion regarding my STBX's breach of agreed to minutes of settlement regarding sale of marital home.

Its Form 31. The form does not seem to allow one to specify orders you are seeking like a regular notice of motion allows.

As a result of STBX's contempt, I am seeking an order for control of the sale of the marital home and an order for costs. Where to I specify this ?

As always, thank you.

PND

Tayken 09-12-2017 10:45 AM

Quote:

Originally Posted by plainNamedDad44 (Post 223519)
Hi Community,

I am bringing forward a contempt motion regarding my STBX's breach of agreed to minutes of settlement regarding sale of marital home.

Its Form 31. The form does not seem to allow one to specify orders you are seeking like a regular notice of motion allows.

As a result of STBX's contempt, I am seeking an order for control of the sale of the marital home and an order for costs. Where to I specify this ?

As always, thank you.

PND

Talk to a lawyer first. You may not be able to bring contempt for this.

Quote:

31. (1) An order, other than a payment order, may be enforced by a contempt motion made in the case in which the order was made, even if another penalty is available. O. Reg. 114/99, r. 31 (1).
Not sure if that would be a "payment order". Best to check with a lawyer.

plainNamedDad44 09-12-2017 11:00 AM

Tayken, as always, thank you. Yes, I was looking at rule 31. The second paragraph of Law of Contempt - Pantalone Family Law : Pantalone Family Law states
"This difficult area of law most often arises in high conflict cases, frequently involving denial of access allegations. In fact and as the following case points out, the Family Law Rules specifically provide that contempt motions do not apply to payment orders (equalization of property, support arrears and costs)."

So I think I am onside. Regardless, I have an hour booked with my lawyer, at which point I will attempt to confirm further.

Further comments would be most appreciated.

plainNamedDad44 09-12-2017 11:37 AM

Quote:

Originally Posted by plainNamedDad44 (Post 223524)
Tayken, as always, thank you. Yes, I was looking at rule 31. The second paragraph of Law of Contempt - Pantalone Family Law : Pantalone Family Law states
"This difficult area of law most often arises in high conflict cases, frequently involving denial of access allegations. In fact and as the following case points out, the Family Law Rules specifically provide that contempt motions do not apply to payment orders (equalization of property, support arrears and costs)."

So I think I am onside. Regardless, I have an hour booked with my lawyer, at which point I will attempt to confirm further.

Further comments would be most appreciated.

On second thought I am not so sure, since the order dealt with the disposition of marital assets, regardless, the order was not a payment order.

Maybe just motion ?

Tayken 09-12-2017 02:17 PM

Quote:

Originally Posted by plainNamedDad44 (Post 223525)
On second thought I am not so sure, since the order dealt with the disposition of marital assets, regardless, the order was not a payment order.

Maybe just motion ?

I am not a fan of "contempt" motions. The other rule you can rely upon is Rule 1.(8). It is a much friendlier way to handle the matter. I find people that rely upon this rule to request a remedy are often more successful than a contempt motion. Furthermore, the burden of evidence is not "beyond reasonable doubt" which is often the case with contempt motions.

Quote:

FAILURE TO OBEY ORDER
(8) If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,
(a) an order for costs;

(b) an order dismissing a claim;

(c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party;

(d) an order that all or part of a document that was required to be provided but was not, may not be used in the case;

(e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise;

(f) an order postponing the trial or any other step in the case; and

(g) on motion, a contempt order. O. Reg. 322/13, s. 1.
FAILURE TO FOLLOW RULES

(8.1) If a person fails to follow these rules, the court may deal with the failure by making any order described in subrule (8), other than a contempt order under clause (8) (g). O. Reg. 322/13, s. 1.
Also, in your case, do you really want someone to face a fine or jail? That is what you have to think about when contemplating "contempt". Usually "contempt" should be reserved for things that directly relate to custody and/or access.

Good Luck!
Tayken

OrleansLawyer 09-12-2017 02:33 PM

Quote:

I am seeking ... Where to I specify this ?
You can serve a regular notice of motion along with your notice of contempt motion.

Whether a finding of contempt is what you want or not seems questionable. Tayken does a good job going through why and what could be done instead.

plainNamedDad44 09-12-2017 04:38 PM

OrleansLawyer and Tayken, thank you both for the timely concise advice. I will rely on Rule 1(8) with a regular notice of motion.

PND


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