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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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  #1 (permalink)  
Old 09-30-2016, 01:50 PM
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Default setting aside an order that was made under duress

I had signed an agreement previously in court. During the conferences I was being bullied by O/C and the duty counsel that was to speak with me at the SC simply refused to speak with me and stated to me that he had too many cases that day and could only witness the agreement - and that is exactly what happened - I got no legal advice whatsoever and the duty counsel only signed the witness box.

The order has very little access time and no holiday access whatsoever among other standard clauses that you would in normal circumstances find in a final child custody order.

I have been forced to bring a MTC to overturn the order but need to prove a material change in circumstances which I feel really good about.

I was curious what exactly does it take to prove there was duress and the order was clearly unfair to the parties and to the child - many lawyers and even duty counsel have stated to me that they would under no circumstance allow such an order to be finalized for a client.

The duty counsel is obviously not going to admit to anything and I think that is where the difficulty will be - will that duty counsel need to be brought into the hearing and cross-examined ? The only thing is that he was a duty counsel and not my lawyer - he didn't have an obligation to protect my best interests, from what I understand.
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Old 09-30-2016, 02:12 PM
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Quote:
Originally Posted by trinton View Post
I had signed an agreement previously in court. During the conferences I was being bullied by O/C and the duty counsel that was to speak with me at the SC simply refused to speak with me and stated to me that he had too many cases that day and could only witness the agreement - and that is exactly what happened - I got no legal advice whatsoever and the duty counsel only signed the witness box.
Look, very few people end up on court on an emergency basis where they should be pressured into anything. Filing rules for non-emergency motions are long enough that you should have had time to retain counsel or at minimum consult counsel prior to your attendance.

Unless, you were brought before the court on an emergency ex-parte motion... But, you signed the agreement on consent in a conference. Conferences do not "sneak up" on litigants. They are planned and scheduled with advance notice.

So, there will be little sympathy because you were under prepared for your conference and failed to seek legal counsel. The obligation rests with YOU to act appropriately in your matter. Furthermore, duty counsel is not required to help you with anything.

No one was holding a gun to your head at the conference. A judge presided over it and the endorsing party to the matter. This makes your argument of duress even more ridiculous.

What makes it more ridiculous is that you didn't have to sign the agreement and the judge would have made that very clear. It was not an order and you choose of your own free will to sign it. Being unprepared is not a good enough excuse. You had plenty of time to research and prepare.

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Originally Posted by trinton View Post
The order has very little access time and no holiday access whatsoever among other standard clauses that you would in normal circumstances find in a final child custody order.
Yet you consented to it. Unless you can demonstrate that you were under the influence of a substance or mental health issue the court will not make a change to the agreement made on CONSENT.

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Originally Posted by trinton View Post
I have been forced to bring a MTC to overturn the order but need to prove a material change in circumstances which I feel really good about.
What is that material change in circumstance? You realized that you were unprepared for your conference and as a result agreed to something that now you are not happy about? I haven't seen any case law where a consent order was overturned because someone realized they failed to get proper legal advice after having 30 day notice and standing in front of a judge.

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Originally Posted by trinton View Post
I was curious what exactly does it take to prove there was duress and the order was clearly unfair to the parties and to the child - many lawyers and even duty counsel have stated to me that they would under no circumstance allow such an order to be finalized for a client.
You would have to present MEDICAL EVIDENCE that at the time of signing the consent order you were incapable of acting in your own best interests. Good luck with that one as you were before a judge at the conference and if you were truly in that state of mind they would have adjourned the conference until such time you could secure counsel and have things explained to you.

If you were truly under "duress" and suffering from a mental illness and unable to make basic decisions about your children's future and their access then the question comes up if you are able to do so currently.

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The duty counsel is obviously not going to admit to anything
As they didn't do anything wrong. You consented something and they witnessed your signature. They are not responsible for what you agreed to. You are responsible for that. Don't try to project your mistake on duty counsel.

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Originally Posted by trinton View Post
and I think that is where the difficulty will be - will that duty counsel need to be brought into the hearing and cross-examined ?
They won't permit it. What evidence do you think duty counsel is going to give you? That they didn't advise you of something? That they maliciously told you to consent to something. No. They simply witnessed your signature on an agreement that you were consenting to. They have no obligation to you as their client. They did that as a courtesy and friend to the court. The judge won't even permit calling duty counsel as a witness. Good luck with that nonsense.

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Originally Posted by trinton View Post
The only thing is that he was a duty counsel and not my lawyer - he didn't have an obligation to protect my best interests, from what I understand.
Bingo. Nor do lawyers. They have a duty to advise you of your options. They don't pick them for you. You could have had counsel and made the same stupid decision to agree to this order. But, you should have had a lawyer represent you if you have no idea about custody and access laws. That is why we have lawyers. Again, the ultimate decision maker on a consent order is YOU not the lawyer who represents you.

Good Luck!
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Old 09-30-2016, 04:53 PM
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I appreciate your feedback and view on this. Please see my comments inline below:

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Originally Posted by Tayken View Post
Look, very few people end up on court on an emergency basis where they should be pressured into anything. Filing rules for non-emergency motions are long enough that you should have had time to retain counsel or at minimum consult counsel prior to your attendance.
The way the court is setup in my area is that when you don't have a lawyer, i.e., when legal aid refuses to fund you with a legal aid certificate although you are on welfare, is that they have duty counsel in rooms that you speak to. You attend court and put your name on a list and a duty counsel calls your name and speak to you about your case. In my case, duty counsel didn't do that - she refused to because she claimed she had too many cases that day.

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Originally Posted by Tayken View Post
Unless, you were brought before the court on an emergency ex-parte motion... But, you signed the agreement on consent in a conference. Conferences do not "sneak up" on litigants. They are planned and scheduled with advance notice.
They are planned and scheduled but when you are having only supervised access and it is a settlement conference before leading to a trial when there are serious allegations of abuse against you and the child . the pressures are just as high - the courts are intimidating and pressures are high - this especially with opposing lawyer coming to you saying that you are going back to supervised access if you don't agree to their terms and them calling you "unfit" and asking you "are you a lawyer" when you try to state otherwise

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Originally Posted by Tayken View Post
So, there will be little sympathy because you were under prepared for your conference and failed to seek legal counsel. The obligation rests with YOU to act appropriately in your matter. Furthermore, duty counsel is not required to help you with anything.
I did seek to speak with legal counsel offered by legal aid at the court - duty counsel - they refused to speak with me about my matter. You are right they are not, but the judge had specifically asked him to prepare the settlement agreement - he did not although he said he would

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Originally Posted by Tayken View Post
No one was holding a gun to your head at the conference. A judge presided over it and the endorsing party to the matter. This makes your argument of duress even more ridiculous.
There doesn't need to be any guns held at your head for duress or bullying to take place in the courts, just intimidation - courts are intimidating for people who have never stepped foot in court before - there is anxiousness and anxiety for people that attend court - even lawyers get nervous at times

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Originally Posted by Tayken View Post
What makes it more ridiculous is that you didn't have to sign the agreement and the judge would have made that very clear. It was not an order and you choose of your own free will to sign it. Being unprepared is not a good enough excuse. You had plenty of time to research and prepare.
The judge did not mention that whatsoever, and neither did the duty counsel - the duty counsel wouldn't speak to me at all. I followed the steps at the court, i.e., putting my name on the list to receive the legal services they are offering at court for people who qualify. I am not a lawyer but I trusted the legal services available at courts for those that qualify.

[QUOTE=Tayken;212082]
Yet you consented to it. Unless you can demonstrate that you were under the influence of a substance or mental health issue the court will not make a change to the agreement made on CONSENT.
[\QUOTE]

I beg to disagree on this, the court has power to overturn an order that is clearly not in the best interests of a child.

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Originally Posted by Tayken View Post
What is that material change in circumstance? You realized that you were unprepared for your conference and as a result agreed to something that now you are not happy about? I haven't seen any case law where a consent order was overturned because someone realized they failed to get proper legal advice after having 30 day notice and standing in front of a judge.
Duty counsel are in the courts to give legal advice, sometimes they do, and sometimes they don't.

I sent you PM re: material change in circumstances and other significant points

Quote:
Originally Posted by Tayken View Post
You would have to present MEDICAL EVIDENCE that at the time of signing the consent order you were incapable of acting in your own best interests. Good luck with that one as you were before a judge at the conference and if you were truly in that state of mind they would have adjourned the conference until such time you could secure counsel and have things explained to you.
impossible. duty counsel was in the court with me before and after the consents were signed - it was assumed that everything was explained and discussed with me - it was not - it was assumed to be correct and in the best interests of the child - it was not and has not been

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Originally Posted by Tayken View Post
If you were truly under "duress" and suffering from a mental illness and unable to make basic decisions about your children's future and their access then the question comes up if you are able to do so currently.
It is to my understanding that duress can be ANY external pressure against you, i.e., bullying by OC, this with duty counsel refusing to speak with you regarding your case or sit down and review the minutes of settlement with you when the judge has asked them to prepare a minutes of settlement

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Originally Posted by Tayken View Post
As they didn't do anything wrong. You consented something and they witnessed your signature. They are not responsible for what you agreed to. You are responsible for that. Don't try to project your mistake on duty counsel.
I think you're right that this will likely not fly in court but I think it would be worth-file for me to mention that I received no legal advice from duty counsel

Quote:
Originally Posted by Tayken View Post
Bingo. Nor do lawyers. They have a duty to advise you of your options. They don't pick them for you. You could have had counsel and made the same stupid decision to agree to this order. But, you should have had a lawyer represent you if you have no idea about custody and access laws. That is why we have lawyers. Again, the ultimate decision maker on a consent order is YOU not the lawyer who represents you.
I guess that's just what differentiates a lawyer and a duty counsel. A lawyer will hear you out and discuss your concerns and options,a duty counsel won't.

Last edited by trinton; 09-30-2016 at 05:25 PM.
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Old 09-30-2016, 09:16 PM
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What did you consent to? If the consent is unreasonable it can be thrown out

I thought normally the parties in Ontario are obliged to have ILA or that is grounds to have an order thrown out?

You can perhaps have the consent overturned but there is a relatively high bar which I would say is mostly reserved for domestic abuse/blackmail situations and more for women than men
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Old 09-30-2016, 10:59 PM
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I certainly don't buy your argument that you were under any sort of duress. Looking back over your posts it is pretty clear to me that you are simply dogmatic. You are now trotting down the road with the attitude that "the dog ate my homework" and expect a judge to take pity and buy into that? Not likely.

You have the ability to do your own research. I have a feeling that had duty counsel ignored all the other people in the court waiting room and focused their precious time only on you that you would find something wrong with their advice and likely argued with them anyhow.
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Old 09-30-2016, 11:22 PM
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Default setting aside an order that was made under duress

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Originally Posted by arabian View Post
I certainly don't buy your argument that you were under any sort of duress. Looking back over your posts it is pretty clear to me that you are simply dogmatic. You are now trotting down the road with the attitude that "the dog ate my homework" and expect a judge to take pity and buy into that? Not likely.

You have the ability to do your own research. I have a feeling that had duty counsel ignored all the other people in the court waiting room and focused their precious time only on you that you would find something wrong with their advice and likely argued with them anyhow.

Some people will research and some people will just speak to a lawyer or expect to speak to one when in court. Do you do your research and expect to buy a used car or do you take it to a mechanic to check everything over? When you buy a house, don't you hire an inspector to check everything over? For what reason do we have lawyers for.

You simply can't know something that you don't know. You just can't.

Why do final custody orders specify pickup and drop off dates and times? Why do they specify holiday access? Why would a final custody order leave out holidays all together, I.e., summer or Father's Day.

Why should they be left open ended to be decided upon by the parties? If , emphasis on if, they are left to be decided between parties with an expectation that there is sufficient communication for it to be figured out, then why shouldn't it be an order for joint custody?

There are many clauses missing from the order that lawyers will put in to protect their clients, some of these include restrictions on relocation, sharing of especial or extra ordinary expenses, sharing of child IDs such as health cards and passports, etc. Nada. Zip.

A reputable family coordinator recently told me that the lawyer was clearly sleeping on the job. I was informed by experienced lawyer that the courts will have interest in determining why the order had no holiday access visitation schedule.


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Last edited by trinton; 09-30-2016 at 11:44 PM.
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Old 10-01-2016, 12:00 AM
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Speaking of research, I came across this information :
Just like a commercial contract, the validity of a family law agreement can be challenged for a number of reasons based on the common law of contracts:

the agreement was not freely entered into, in other words, a party was under duress when the agreement was negotiated or executed,
the agreement is unconscionable, in other words, the agreement is obviously and seriously unfair to a party,
a party signed the agreement without independent legal advice, did not fully understand what the agreement meant, and signed it by mistake,
the agreement was signed without full disclosure having been made, or
a party signed the agreement because misleading information had been provided.
Duress, coercion, unconscionability and mistake
The courts won't enforce an agreement — that is, they won't compel the parties to abide by an agreement — where one of the parties was forced or pressured to enter into the agreement. An agreement must be entered into freely and voluntarily.

Likewise, the courts won't enforce an agreement where one of the parties used a position of power to achieve an unfair agreement. This can include threats and manipulation, as well as signing an agreement in circumstances of extreme emotional stress, such as just before a wedding, following a hospitalization, or during an emotional breakdown.

Agreements that are hugely unfair can also be found to be unconscionable, as can agreements formed under a fundamental misunderstanding about the nature of the family finances or the extent of a party's assets.

Lack of independent legal advice
A spouse may be able to challenge the validity of an agreement where he or she did not receive independent legal advice before entering into the agreement. Independent legal advice helps to ensure that both parties are on a more or less equal footing, and to ensure that one party doesn't unintentionally enter into an unfair agreement.

There is, however, no requirement that independent legal advice be sought before an agreement is signed. In most situations, the absence of independent legal advice alone will not be enough to overturn an agreement by itself.



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Old 10-01-2016, 12:12 AM
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I don't think "duress" is going to get you far. My understanding is that you would have to prove either that you were not capable of understanding the agreement you signed (you were mentally incapacitated or didn't speak English) or that you were forced to sign because you could not do otherwise (e.g. someone threatened to kill your pets if you didn't sign). However, from what you've said neither of those were true. You got bad advice from duty counsel and you weren't adequately prepared for the court appearance, but that doesn't amount to duress. The stress of court itself is not enough - if it were, then every agreement signed at the courthouse could be thrown out. I suggest you pursue your objective of gaining more access in some other way.
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Old 10-01-2016, 12:31 AM
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Originally Posted by stripes View Post
I don't think "duress" is going to get you far. My understanding is that you would have to prove either that you were not capable of understanding the agreement you signed (you were mentally incapacitated or didn't speak English) or that you were forced to sign because you could not do otherwise (e.g. someone threatened to kill your pets if you didn't sign). However, from what you've said neither of those were true. You got bad advice from duty counsel and you weren't adequately prepared for the court appearance, but that doesn't amount to duress. The stress of court itself is not enough - if it were, then every agreement signed at the courthouse could be thrown out. I suggest you pursue your objective of gaining more access in some other way.

That is what my initial thought on this has been. It may be very hard to prove.


I'm primarily relying on my material changes to vary the order. One of these is OP denying my reasonable requests for holidays and cancelling visits that fell on holidays. Case management judge stated her opinion that I should be given the majority of holidays as OP has majority of school access.

I have lots more material changes but wish to discuss these privately at this point.

I'm thinking to just state that I got no legal advice from duty counsel and leave it at that.




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Old 10-01-2016, 01:21 AM
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You are mixing things up. Throwing out the order and CHANGING it based on a new circumstance are 2 separate matters to be treated differently.

You really need to actually understand how the law works. Nobody gives a *** about you or your kids they just want your ex-wife off welfare, you paying child support and to process you out of the court house at minimal cost to tax payers.
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