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Old 03-18-2012, 10:55 PM
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Default Question re an appeal

Hi all,

My ex-wife and I have a final order (made after a trial) which states that we share joint custody (although she has stopped the children from coming for a long time - unfortunately).

She filed a new application asking for sole custody. I oppose this, of course, for reasons too numerous to mention.

We had a case conference last Monday, March 12th. The judge made an order that the matter go to a summary judgment trial on April 16th.

My understanding is that it is unlawful to do such a thing at a case conference, so I believe that I need to appeal.

Nevertheless, I believe that this is considered an "interlocutory" order, and I believe that the following statutes and regulations apply, from the Courts of Justice Act and the Rules of Civil Procedure, respectively.

The Courts of Justice Act states:
Divisional Court jurisdiction
19. (1) An appeal lies to the Divisional Court from,


(b) an interlocutory order of a judge of the Superior Court of Justice, with leave as provided in the rules of court; [bold mine]

Now, I believe that when it says "as provided in the rules of court", they are referring to the Rules of Civil Procedure, which states:
MOTION FOR LEAVE TO APPEAL TO DIVISIONAL COURT
Notice of Motion for Leave
61.03 (1) Where an appeal to the Divisional Court requires the leave of that court, the notice of motion for leave shall,
(a) state that the motion will be heard on a date to be fixed by the Registrar;
(b) be served within 15 days after the making of the order or decision from which leave to appeal is sought, unless a statute provides otherwise; and
(c) be filed with proof of service in the office of the Registrar, within five days after service. [bold mine]

So, if I understand it correctly, I have 15 days to file the motion. If anybody interprets that differently, or if they know of how something else applies, I would appreciate the feedback very much. (I know that normally an appeal from an interlocutory order needs to be filed within 7 days, but I believe that is only where leave is not required.)

B
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Old 03-18-2012, 11:23 PM
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Default summary judgement

Hey B.I am sorry to hear your going through this.I have not fully read up on this, maybe i should be doing that as i am in the process of an application as we speak.my question.. what is wrong with attending the Summary, and requesting an adjournment for the basis of your legal motions?just curious..j.p. aka passionatedad
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Old 03-18-2012, 11:59 PM
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Thanks for the reply, passionatedad. I managed to get a hold of a lawyer friend tonight, and I have decided that I am simply going to respond to the summary judgment matter through normal means, which is by affidavit only (rather than appeal the order to go by way of summary judgment). I have to prove that there is a genuine issue for trial (and there are numerous), and no summary judgment should be issued.

B.
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Old 03-19-2012, 12:01 AM
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By the way... so as to not throw anybody else off course:

I was correct about the appeal going to the Divisional Court, as per the section from the Courts of Justice Act.

However, the Family Law Rules apply, and NOT the Rules of Civil Procedure, which I quoted.... so the steps are different in getting the matter TO the Divisional Court.
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Old 03-19-2012, 01:35 AM
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Usually, a case goes to a motion for Summary Judgement because there is some merit that one of the party's (I'm assuming you) has very little or no chance of success at trial, or there are no triable issues. Why did you not go to court when your ex first began stopping the children from seeing you? You said she stopped them from coming "a long time ago" How long has it been since you have seen the children? I believe (not completely sure) that it is within the rules for a case conference judge to order the matter be heard for summary judgement if one party has little or no chance of success at trial. Did the judge do this because you have not seen the children? It would help to know how long this has been going on without you going to court to enforce your joint custody rights.
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Old 03-19-2012, 04:14 AM
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Hi Access Dad,

It's probably easiest for me to answer your questions by giving a summary of the situation/case.

It's a long, sordid affair, but here's the short version of what has gone on, in bullet form:
  • we separate on April 24, 2003
  • my ex insists on sole custody for her, or else she prevents our four children from coming to see me for who knows how long (I was a very involved, loving father)
  • I consent to interim sole custody only
  • a month after separation, on May 23, 2003, my children's first visit weekend occurs
  • the next weekend, my daughter, 4 1/2 at the time, tells me that her grandmother injured her in the genital area by jamming her knee into her, and then told her to tell the Family Doctor that I sexually assaulted her
  • I go to CAS and report what my daughter told me
  • CAS opens and closes the file within four days, clearing my name, but not investigating what my daughter alleged grandma did
  • CAS contravenes the Children's Law Reform Act (s. 20(5)), and denies me access to their files re: the situation
  • I get joint custody in 2004
  • CAS still denies me access to their files
  • it takes me 2 more years to get the files from CAS about what occurred, and it took a pissed off judge to order that CAS give the files to me
  • turns out that CAS had lied to me about not investigating (contacting the Family Doctor), and the Fam Doc did, in fact, give CAS evidence that supported what my daughter alleged happened to her at the hands of her grandmother
  • the CAS files also prove, to my surprise, that my children's mother was fully aware of, and was involved with grandma in what happened to my daughter
  • immediately after being ordered to turn over the files, CAS files a Protection Application (PA) against me
  • they do not allege abuse or neglect on my part, but that I was allegedly overly litigious (by asking the Court to give me files that they were unlawfully withholding)
  • nevertheless, the Ontario Court judge (and former 15-year CAS lawyer), Michael P. O'Dea, grants the PA while admitting that he never even read my responding materials to CAS' PA (I have this admission on transcript)
  • for two years, O'Dea broke every statute, rule, etc, in order to keep the PA in place
  • (as some may be aware, when there is a PA in place in a CAS Court, a publication ban exists, so I have been unable to expose any of these serious wrongdoings that I uncovered when I received CAS' files)
  • O'Dea later recused himself - before our trial - in order to protect himself
  • then, "Justice" Elenor Schnall took over the trial, denied me a lawyer, against Supreme Court rulings, and basically did what O'Dea had done for two years prior
  • the 14-day trial was a sham and a ruse to try to falsely paint me as an "overly litigious" person
  • before, during, and after the trial (which dragged out over 7 months), and with CAS' help, my ex stops all of my children from coming to see me as they all turn 12 years of age - the magic age, if you will, where they could tell me that they want to live with me and the Court is duty-bound - as per case law - to respect their wishes (as long as they were not coerced to say so)
  • during all of this time, CAS supervised access notes (from one honest CAS worker, Patty Dunn) repeatedly speak of the children saying that they want to spend more time with me, but that their mother won't let them
  • the same CAS notes repeat numerous incidents where my ex contravened court orders and planned events for the children on my days with the children, coerced them to not come by bribery, punished them for contacting me from friends' houses, etc, etc, etc


  • so now, my ex's Superior Court (non-CAS matter) position is that I haven't seen the children since June 2011 (my oldest, even longer), and that there is no communication between us, so joint custody is "unrealistic"
  • of course, it is she who refused to communicate as of the day that I obtained joint custody in 2004
  • and it is she who has openly stopped the children from coming (two Office of the Children's Reports say the same things), yet she tries to use that argument
But, no, Access Dad, the judge had absolutely no right to order a summary judgment "trial". A quick glance at what even the Attorney General's own website says about a Case Conference proves that.The Family Law Rules don't even allow for a summary judgment trial. It is done by way of motion, and only with affidavit evidence.


A trial consists of allowing a person to cross-examine their accusers. A summary judgment motion allows no such thing. It flies in the face of the Charter of Rights, as well as Supreme Court rulings. I said as much to the judge as he was making his ruling. He was taken aback that I would (politely but respectfully) confront him with this, but he was too stubborn to change his decision.



But to answer your final question...


My ex's position is as you suggested: 'Hey, he never even sees the kids. I am the parent. Give me sole custody, since that is essentially what the situation is.'


But in the REAL world, people don't get rewarded for abusing children and denying them a relationship with BOTH parents. My ex is essentially asking the Court to reward her for bad behaviour.


In short, one bad judge, and she'll get what she wants... temporarily. One good judge, however, and my children might finally be protected from her and her mother.


B.
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Old 03-19-2012, 01:17 PM
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Quote:
Originally Posted by fixchildrensaid View Post
Hi Access Dad,

It's probably easiest for me to answer your questions by giving a summary of the situation/case.

It's a long, sordid affair, but here's the short version of what has gone on, in bullet form:
  • we separate on April 24, 2003
  • my ex insists on sole custody for her, or else she prevents our four children from coming to see me for who knows how long (I was a very involved, loving father)
  • I consent to interim sole custody only
  • a month after separation, on May 23, 2003, my children's first visit weekend occurs
  • the next weekend, my daughter, 4 1/2 at the time, tells me that her grandmother injured her in the genital area by jamming her knee into her, and then told her to tell the Family Doctor that I sexually assaulted her
  • I go to CAS and report what my daughter told me
  • CAS opens and closes the file within four days, clearing my name, but not investigating what my daughter alleged grandma did
  • CAS contravenes the Children's Law Reform Act (s. 20(5)), and denies me access to their files re: the situation
  • I get joint custody in 2004
  • CAS still denies me access to their files
  • it takes me 2 more years to get the files from CAS about what occurred, and it took a pissed off judge to order that CAS give the files to me
  • turns out that CAS had lied to me about not investigating (contacting the Family Doctor), and the Fam Doc did, in fact, give CAS evidence that supported what my daughter alleged happened to her at the hands of her grandmother
  • the CAS files also prove, to my surprise, that my children's mother was fully aware of, and was involved with grandma in what happened to my daughter
  • immediately after being ordered to turn over the files, CAS files a Protection Application (PA) against me
  • they do not allege abuse or neglect on my part, but that I was allegedly overly litigious (by asking the Court to give me files that they were unlawfully withholding)
  • nevertheless, the Ontario Court judge (and former 15-year CAS lawyer), Michael P. O'Dea, grants the PA while admitting that he never even read my responding materials to CAS' PA (I have this admission on transcript)
  • for two years, O'Dea broke every statute, rule, etc, in order to keep the PA in place
  • (as some may be aware, when there is a PA in place in a CAS Court, a publication ban exists, so I have been unable to expose any of these serious wrongdoings that I uncovered when I received CAS' files)
  • O'Dea later recused himself - before our trial - in order to protect himself
  • then, "Justice" Elenor Schnall took over the trial, denied me a lawyer, against Supreme Court rulings, and basically did what O'Dea had done for two years prior
  • the 14-day trial was a sham and a ruse to try to falsely paint me as an "overly litigious" person
  • before, during, and after the trial (which dragged out over 7 months), and with CAS' help, my ex stops all of my children from coming to see me as they all turn 12 years of age - the magic age, if you will, where they could tell me that they want to live with me and the Court is duty-bound - as per case law - to respect their wishes (as long as they were not coerced to say so)
  • during all of this time, CAS supervised access notes (from one honest CAS worker, Patty Dunn) repeatedly speak of the children saying that they want to spend more time with me, but that their mother won't let them
  • the same CAS notes repeat numerous incidents where my ex contravened court orders and planned events for the children on my days with the children, coerced them to not come by bribery, punished them for contacting me from friends' houses, etc, etc, etc


  • so now, my ex's Superior Court (non-CAS matter) position is that I haven't seen the children since June 2011 (my oldest, even longer), and that there is no communication between us, so joint custody is "unrealistic"
  • of course, it is she who refused to communicate as of the day that I obtained joint custody in 2004
  • and it is she who has openly stopped the children from coming (two Office of the Children's Reports say the same things), yet she tries to use that argument
But, no, Access Dad, the judge had absolutely no right to order a summary judgment "trial". A quick glance at what even the Attorney General's own website says about a Case Conference proves that.The Family Law Rules don't even allow for a summary judgment trial. It is done by way of motion, and only with affidavit evidence.


A trial consists of allowing a person to cross-examine their accusers. A summary judgment motion allows no such thing. It flies in the face of the Charter of Rights, as well as Supreme Court rulings. I said as much to the judge as he was making his ruling. He was taken aback that I would (politely but respectfully) confront him with this, but he was too stubborn to change his decision.



But to answer your final question...


My ex's position is as you suggested: 'Hey, he never even sees the kids. I am the parent. Give me sole custody, since that is essentially what the situation is.'


But in the REAL world, people don't get rewarded for abusing children and denying them a relationship with BOTH parents. My ex is essentially asking the Court to reward her for bad behaviour.


In short, one bad judge, and she'll get what she wants... temporarily. One good judge, however, and my children might finally be protected from her and her mother.


B.
from my understanding you have to bring motion for summary judgment for summary jujment

Quote:
RULE 16: SUMMARY JUDGMENT

WHEN AVAILABLE

16. (1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case. O. Reg. 114/99, r. 16 (1).

AVAILABLE IN ANY CASE EXCEPT DIVORCE

(2) A motion for summary judgment under subrule (1) may be made in any case (including a child protection case) that does not include a divorce claim. O. Reg. 114/99, r. 16 (2).

EVIDENCE REQUIRED

(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial. O. Reg. 114/99, r. 16 (4).

EVIDENCE OF RESPONDING PARTY

(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial. O. Reg. 91/03, s. 5.

EVIDENCE NOT FROM PERSONAL KNOWLEDGE

(5) If a party’s evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party. O. Reg. 114/99, r. 16 (5).
Quote:
RULE 17: CONFERENCES
PURPOSES OF CASE CONFERENCE

(4) The purposes of a case conference include,
(a) exploring the chances of settling the case;
(b) identifying the issues that are in dispute and those that are not in dispute;
(c) exploring ways to resolve the issues that are in dispute;
(d) ensuring disclosure of the relevant evidence;
(d.1) identifying any issues relating to any expert evidence or reports on which the parties intend to rely at trial;
(e) noting admissions that may simplify the case;
(f) setting the date for the next step in the case;
(g) setting a specific timetable for the steps to be taken in the case before it comes to trial;
(h) organizing a settlement conference, or holding one if appropriate; and
(i) giving directions with respect to any intended motion, including the preparation of a specific timetable for the exchange of material for the motion and ordering the filing of summaries of argument, if appropriate. O. Reg. 114/99, r. 17 (4); O. Reg. 89/04, s. 8 (1); O. Reg. 6/10, s. 7 (1, 2).
Subject: Summary Judgment Motions and Appeals

you also may read this. It may help you in some way or another
2011 ONSC 6451 (CanLII)

http://pswlaw.ca/2011/02/summary-jud...in-family-law/

Last edited by WorkingDAD; 03-19-2012 at 01:25 PM.
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Old 03-19-2012, 02:48 PM
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fixchildrensaid: I see you have been through quite an ordeal. I wish you the best of luck
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