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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 08-07-2013, 03:44 PM
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Default Responding to a Motion questions - reference continuing record, request for orders?

I'm going to my first motion (yay - I'm so lucky to have my ex in my life to give me these new experiences!)

My ex is asking for disclosure (most of which I have already given, the rest is unreasonable) and orders for support (6 years retro, even though I've overpaid already).

I'm filing an affidavit form 14A to respond. Is that the only form to use in this situation?

Can I refer to documents already listed the continuing record in my affidavit?

Can I request orders in the affidavit?

Also, she is asking for a support order (none is in place). Doesn't that mean that she has to update her 13.1 that is over 1 year old in the continuing record? She has not attached anything to the Notice of Motion (I have only received an email at this point though as I am away from home and have not been served)

Last edited by billm; 08-07-2013 at 03:46 PM.
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Old 08-07-2013, 04:03 PM
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Originally Posted by billm View Post
I'm going to my first motion (yay - I'm so lucky to have my ex in my life to give me these new experiences!)
Don't panic.

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Originally Posted by billm View Post
My ex is asking for disclosure (most of which I have already given, the rest is unreasonable) and orders for support (6 years retro, even though I've overpaid already).
With regards to the disclosure provided. My recommendation (tayke it or leave it) would be to resubmit the entire set already delivered. Just make a nicely tabbed document that satisfy the request. In the index just identify the date requested and in the next colum beside the tab number, the date provide, and in the next colum how it was served.

1. 2013 T4, Requested on Date, Provided on Date, provided via email.
2. 2012 NOA, Requested on Date, Provided on Date, served via registered mail on solicitor of record
etc...

In the tab, include the covering letter to the disclosure.

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I'm filing an affidavit form 14A to respond. Is that the only form to use in this situation?
Unless you are cross motioning the motion.

You can then attach the document "brief" that I recommended as a schedule of evidence. Just make sure you do it in a REAL organized manner.

So, you can then refer to Schedule A-1 which is the main schedule "A" and Tab "1" of the root schedule.

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Can I refer to documents already listed the continuing record in my affidavit?
Yes. You do it by referencing the Volume Number, then Tab and then Schedule letter.

Example:

xx. Evidence of my income was provided to the applicant regarding my 2013 income which can be found attached to my Form 13.1 Affidavit located in Volume 1 of the Continuing Record, under Tab 6.

xx. blah blah blah and can be found in Volume 1 of the Continuing Record under Tab 1, and attached to my affidavit filed in this tab marked as exhibit "X".

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Can I request orders in the affidavit?
NO. You need to do a notice of motion or a notice of cross motion to request things. DON'T FORGET TO REQUEST COSTS.

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Also, she is asking for a support order (none is in place). Doesn't that mean that she has to update her 13.1 that is over 1 year old in the continuing record?
Yes, if the Form 13.1 is over 30 days old a new one or an update has to be provided. It is part of the Rules. Just because the other party doesn't do it... Doesn't mean you have to. You should request in your notice of motion that the other party be ordered to update their Form 13.1 in accordance with the Rules.

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She has not attached anything to the Notice of Motion (I have only received an email at this point though as I am away from home and have not been served)
Check with the court office to INSURE that the notice of motion is filed. Email service is not permitted and often people do this sketchy stuff to try and get the other party mad. It isn't uncommon for a negative advocate solicitor to serve unfilled materials on the other party to make it look like they are going on motion. Trust me... Justices DO NOT find this funny... Keep it as excellent evidence to bad faith conduct should you ever get something like this and from a lawyer... Law society doesn't find it funny at all either.

Check the court house to see if the material has been filed. You can do this on the phone I think while out of town.

Good Luck!
Tayken
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Old 08-07-2013, 04:56 PM
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Thanks Tayken,

So a cross motion just uses the form 14, meaning is a motion that just happens to be done at the same time as the original? Does the cross motion mention the original motion? I assume the cross motion would be done on the same date and I would not have to schedule it - just fill in the date for the original motion?

In my affidavit - the only reason is to submit evidence? Do I make any arguments and reference the orders requested, or do I solely do that in front of the judge. Meaning is the affidavit is ONLY for the purpose of getting things into the procedure so that I can use them when in front of the judge?

If I want the judge to order the same financial disclosure from the other party as they are asking for an order from me, do I have to do a cross motion, or can I just wait until I'm in front of the judge to request that?

You mention asking for costs - do I have to do a cross motion for that, or can I mention it in my affidavit, or can I just ask the judge?
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Old 08-08-2013, 12:19 AM
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Bill my ex's lawyer was curtly reprimanded by the judge just this past June for attempting to "piggy back" on my motion. Judge said he [OC] should know better....
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Old 08-08-2013, 08:27 AM
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So a cross motion just uses the form 14, meaning is a motion that just happens to be done at the same time as the original?
"Form 14: Notice of Cross-Motion" is the form I see most lawyers using. It is always tagged output from www.DIVORCEmate.com. So it may just be a customization to the general "Form 14" changing the header to state "Notice of Cross-Motion" from the original one provided by the government.

Many people re-create the forms identical to the locked down ones provided by the government for themselves. If someone has please contact Billm and send him a copy of the form. The ones off the internet from the government suck.

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Does the cross motion mention the original motion?
Under the heading "TO THE PARTIES" section where it states...

THE COURT WILL HEAR A MOTION ON (date) ____________

Put the date of the motion that is brought against you.

at (time) __________, or as soon as possible after that time at: (place of hearing)

Put the same time as the original motion and insure that the section of "or as soon as possible after that time" is there too.

That is how you do it (i think).

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I assume the cross motion would be done on the same date and I would not have to schedule it - just fill in the date for the original motion?
See above comments. I believe that you file and serve the cross motion for the same date. The justice will determine if the matter needs to be heard at another date or move all matters to a long motion hearing, a quick trial by voice or to a real full trial.

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In my affidavit - the only reason is to submit evidence?
Nope. It is to state your position. You would want to outline your position, provide the justice with a background to the matter from the date of seperation to current date. (Be brief.)

You may have to do a Form 35.1 if Custody and Access is being determined.

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Do I make any arguments and reference the orders requested, or do I solely do that in front of the judge. Meaning is the affidavit is ONLY for the purpose of getting things into the procedure so that I can use them when in front of the judge?
A motion generally is 15 minutes before a judge. Most everything is determined on AFFIDAVIT EVIDENCE (paperwork) for a motion. You will have very little time for oral arguments. Make sure your affidavit in response is VERY CLEAR and outlines your position.

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If I want the judge to order the same financial disclosure from the other party as they are asking for an order from me, do I have to do a cross motion, or can I just wait until I'm in front of the judge to request that?
I would prior to that filll out a form 20 outlining IN DETAIL your disclosure request. Serve it on the other party's lawyer (or party if no lawyer) and then attach that request and the reciept of service and simply ask for that request made in accordance with Rule 20 of the FLR be ordered (if they didn't provide all the disclosure).

Notice of Cross Motion Wording:

xx. An Order that the Applicant comply with the Form 20: Request for Disclosure served on day, month, year.

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You mention asking for costs - do I have to do a cross motion for that, or can I mention it in my affidavit, or can I just ask the judge?
In the Notice of motion and in your affidavit:

xx. Costs of this cross motion on a substantial indemnity basis together with the applicable taxes and disbursements.

xx. Such further and other Order as I may advise and this Honourable Court permit.

Good Luck!
Tayken
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Old 08-09-2013, 02:39 AM
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Thanks for the replies.
The notice of motion from my ex's lawyer has a list of orders requested, and that is all there are no other inclusions.
It says that she will also be relying on an affidavit in the continuing record. The only thing she has placed in the continuing record prior to this is her initial form eight application.
I have not been served with any affidavit. I thought that anything in the continuing record from the other party must first be served to me and given that I have not seen an affidavit then the notice of motion is simply referring to her form eight application as her affidavit.
Does every document placed in the continuing record by the other party first have to be served in its entirety to me before it goes in the continuing record?
I just want to be sure of what is available to the judge. A little surprised that there was no affidavit with her notice of motion.
Also, they are asking for a support order yet she has not included nor have I been served with a form 13.1. The one in the continuing record is almost 2 years old. What is with that?
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Old 08-09-2013, 03:14 AM
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If you have only been served a notice of motion without an affidavit and without a financial statement from the moving party, my first order of business would be to confirm with the courthouse there is actually materials served on the court.

I would also expect that they should have consulted with you regarding your availability on the date the motion is scheduled. If the other side has not been consulted as to availability it is very common that the non-moving party asks for an adjournment. If the moving party does not yield the non-moving party must attend at the time and place and request an adjournment.

A lack of checking with the other side first for availability means a high chance that an adjournment will be granted.
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Old 08-09-2013, 10:41 AM
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I was consulted as to a time - given three dates.

Its next week.

Last edited by billm; 08-09-2013 at 10:59 AM.
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Old 08-18-2013, 07:07 PM
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Update - had a motion Thursday that ex started.

They served me almost all of the materials Monday, which should have been served Friday. I asked for adjournment, and got it. Costs deferred to motion.

My first motion - not fun, because it started with me asking for an adjournment, but then got into how much interim support should be ordered until motion.

This then went into a free for all of my ex's lawyer trying to paint me as having almost double the income, hiding income both from a rental property that I have (which I almost never rent out), and that I work for my brother (insinuating that he is helping me hide money - him and I are working on a project that has no funding, no product at this time - just speculative drain on my time at this point!)

I did okay, but had I had time to prepare materials, I could have shown that almost no support is warranted given our current incomes. I told the judge that according to our agreements, I should be paying $560 - agreements that my ex is trying to have put aside. The judge ordered interim of $740/month.

I'm fine with that as that is close to what we have in place, but it still felt like of course I had to pay something because I'm a guy - have to admit. Could be wrong - I didn't get a chance to ask the judge why she was ordering me to pay - based on our agreements, or current income.

If it was based on what I said was our current agreement, fine, but if it was based on current income, it was not fine.

Anyway, at least I was given more time to defend myself. I have so many ways to refute what my ex is saying, its hard to know which evidence to include!

The order was just for two payments, nothing more.
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