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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 09-12-2011, 12:28 PM
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Default Steps to go straight to a trial - help

I need some urgent assistance on the following matter.

I have a First Apperance this week. I did have a Case Conference booked during last summer but it was postponed since I had a medical family emergency. Since the Respondent (I'm the applicant) did not file anything yet with the court all they are permitting is a First Apperance. The court clerk wants to see if any exchange of info is outstanding (what I've been told).

So I talked to a lawyer and he said I should asked the clerk to go straight to a trial since the resondent has not responded and has basically forfeited her defence. It will be approx 130 days since she was served.

I'm going after CS since she will not pay. She is claiming she can not work due to illness but will provided not documentation/proff to validate her claim. We have a final Divorce Order but her income has change from almost $6K to $17K last year. She dropped down to Part-time just before our Divorce to avoid CS at the time.

I also learned that she dropped her family medical benefits coverage since she went to very low part-time status at her work. So our children are no longer covered under her previous plan (the same ones she has not seen for over 3 yrs).

My questions is: Does anyone know if it is possible to go staright to trial on only the evidence given since the Respondent will not respond to the court (file any documentation)? She is represented by a lawyer but I can not seem to get her to send me anything. I'm self-rep this time.
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Old 09-12-2011, 12:55 PM
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Originally Posted by Frustrated_DAD View Post
I need some urgent assistance on the following matter.

I have a First Apperance this week. I did have a Case Conference booked during last summer but it was postponed since I had a medical family emergency. Since the Respondent (I'm the applicant) did not file anything yet with the court all they are permitting is a First Apperance. The court clerk wants to see if any exchange of info is outstanding (what I've been told).

So I talked to a lawyer and he said I should asked the clerk to go straight to a trial since the resondent has not responded and has basically forfeited her defence. It will be approx 130 days since she was served.

I'm going after CS since she will not pay. She is claiming she can not work due to illness but will provided not documentation/proff to validate her claim. We have a final Divorce Order but her income has change from almost $6K to $17K last year. She dropped down to Part-time just before our Divorce to avoid CS at the time.

I also learned that she dropped her family medical benefits coverage since she went to very low part-time status at her work. So our children are no longer covered under her previous plan (the same ones she has not seen for over 3 yrs).

My questions is: Does anyone know if it is possible to go staright to trial on only the evidence given since the Respondent will not respond to the court (file any documentation)? She is represented by a lawyer but I can not seem to get her to send me anything. I'm self-rep this time.
It will not go to trial immediately in my opinion. The judge at the first appearance will make a pile of technical orders with regards to disclosure that you are seeking.

Trials are rare and only when they she high-conflict between the parties.

The judge will issue continuance in the matters and order the non-responsive party to reply and explain why. After a few attempts at this something may happen but, if the other party is non-responsive it generally goes to an uncontested trial. It usually takes a few attempts to get there. It is not an "automagic" process by any means as described.

Good Luck!
Tayken
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Old 09-12-2011, 02:56 PM
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A couple of things to consider. Is the other party represented? That may have some effect.

What I would do is go to the first appearance. Tell them how many day late the other party is in their filing. Tell them that you are willing to give them an extention until "X" date. Ask for them to schedule a case conference (as that is the next step) but to give you permission to file a form 23C (Affidavit for uncontested trial) if they do not respond by then. Then send an email or fax notifying the other party of their extension date and the case conference date.

You might be able to proceed with uncontested if you do this. Be honest and give them a reasonable amount of time still, although it is not your fault that they are extending this and you may have a child who is being affected this will likely be allowed if you want to or not so you might as well be reasonable about it.

Do you know if the other party will be attending the first appearance?

Good luck!
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Old 09-12-2011, 03:03 PM
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I'm fairly sure my Ex's lawyer will show. The lawyer sent me an urgent email asking if I scheduled a case conference for the afternoon already.

I was thinking of asking for 10days for full-disclosure and to file a form 23C (Affidavit for uncontested trial) if there is no response again.
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Old 09-12-2011, 03:11 PM
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I'm fairly sure my Ex's lawyer will show. The lawyer sent me an urgent email asking if I scheduled a case conference for the afternoon already.

I was thinking of asking for 10days for full-disclosure and to file a form 23C (Affidavit for uncontested trial) if there is no response again.
130 days and they are represented? Or did this solicitor just show up now?
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Old 09-12-2011, 03:19 PM
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My Ex met with her lawyer 25 days after service since she signed her Response to Motion and dated it with the lawyer. They then waited tell the following week to serve me which was past the 30 days. Since then they have filed no documents - not even a 14C Confirmation. She did not even attend the MIP (Ontario).

I tried to get them to file and even agreed to sign the approval forms. So I filed her response and financial papers (tax Return) as evidence (14A). Still I get nothing from them. Now after being postponed once we are coming up on 130days since sevice. They will not provide full financial disclosure or other documents that are required.
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Old 09-12-2011, 05:43 PM
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Quote:
Originally Posted by Frustrated_DAD View Post
My Ex met with her lawyer 25 days after service since she signed her Response to Motion and dated it with the lawyer.
If she is represented they really have no excuse not to meet the deadline

Quote:
Originally Posted by Frustrated_DAD View Post
They then waited tell the following week to serve me which was past the 30 days. Since then they have filed no documents - not even a 14C Confirmation. She did not even attend the MIP (Ontario).
What is the 14C for? You are saying above that they sent a response I am not sure what you mean?

Quote:
Originally Posted by Frustrated_DAD View Post
I tried to get them to file and even agreed to sign the approval forms. So I filed her response and financial papers (tax Return) as evidence (14A). Still I get nothing from them. Now after being postponed once we are coming up on 130days since sevice. They will not provide full financial disclosure or other documents that are required.
Is it just the financial information that is missing? How did you file her response, this is not clear to me?
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Old 09-13-2011, 11:07 AM
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A 14C in Ontario is a confirmation that you will attend that must be submitted to the courts 48hrs prior to the court date.

I'm the Applicant and my Ex is the Respondent and she served me (or her lawyer did) Form 15B: Response to Motion to Change. They waited 5 days to serve me after signing it and that took them past the 30 days to respond. The 15B was never filed with the court (or any other documentation) so the court does not have my Ex's lawyer on file as representing her.

My Ex did not send me all financial information as required - missing income tax info for last 3 yrs and no 13.1 financial statement. Also my ex is claiming undue hardship and says she is ill now and will not be working this year. I can not get her to confirm with medical documentation that she is unable to work (she has mentioned many times she does not want to pay child support).

My Ex is also saying she will ask for the Final Divorce Order to be revisited for Spousal support which is the opposite of her Response she sent me. But they claim that since they did not file the response with the court they can serve me with a new one. So I decide to enter my Ex's response as evidence along with her tax return (the one I did get) for last year showing that she did have an income using Form 14A.
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Old 09-13-2011, 12:43 PM
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I am pretty sure that you do not have to file a 14c for a First Appearance.

Did you send a reply to the response within 10 days?

I would attend your first appearance this week geared with a reply and ask permission to submit (use an affidavit form)

Maybe file a form 20 as well, request for information. Ask to proceed to a case conference (NOT DRO meeting) so that there will be a judge there who can do a temporary order for support.
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Old 09-13-2011, 12:43 PM
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Because you filed x's documents there is no way to go straight to trial!
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