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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 11-04-2017, 06:32 PM
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Default transcript for settlement conference

Hello,
I know transcripts for settlement conferences need permission from the Judge.
During my settlement conference, the Judge - after various other statements - decided to refer the file to the OCL and to modify access rights after almost two years of irregular access. The Judge reduced access rights from every two week-ends to every two Saturdays.
However, when I got the endorsement, the part regarding the access rights was not written. The discussion took more than 15 minutes and it was clear to me the Judge would impose these new access rights.
My ex was also convinced this was the new situation and showed for the first Saturday. After the first Saturday, ex stopped coming from 8 months and I understood ex stopped coming because ex didn't like the new order. After 8 months, ex comes back to the Court saying there is no order modifying the access and I am in contempt.
How can I get the transcript for the settlement conference? Can somebody be in contempt if order has been modified without putting it in the endorsement? Do I need to file a procedural motion to ask for the transcript?
The other party, in spite of the fact ex showed up on the very first Saturday, does not recognize what happened at settlement and pretends it's the previous order which applies. On the first Saturday ex showed up, I have the texto, date and time on my phone. If ex did not believe order changed, ex would have showed up on Friday after school instead of Saturday.
Of course, if I need to do a procedural, I suppose I have to do it before the contempt motion.
Thank you for your advice.
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Old 11-04-2017, 06:45 PM
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If a transcript from settlement conference is what you are seeking then you have to get judge's approval. Often there isn't one as the settlement conference is intended for 2 parties to come together in agreement on some or most items.

Contempt is a mini-trial unto it's own. You'd be best to file a response and simply state your position and include all evidence. You will, however, be given time to purge your contempt (look this up on internet) if the matter proceeds (which I personally think is doubtful).

Your ex probably did not come after the first Saturday as she was advised that there was no new Order in place.

I'd save your money/time/resources for other matters.
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Old 11-04-2017, 06:59 PM
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OK, I also thought to include all evidence in the response.
One of the pieces of evidence is an email from my ex's lawyer speaking of that Saturday to my lawyer. T Another one is my statement appearing in the OCL report that access is every two Saturdays (could that be contested because it is "my" statement in the OCL Report?; anyways, it has not been contested within 30 days from the day the report was issued and now it is too late...)
Also, I found out that when both parties have a lawyer, settlement conferences are not recorded. Right now, I don't have a lawyer, but can that lawyer become my witness (just thinking) and testify that Judge decided to modify access rights?
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Old 11-04-2017, 07:06 PM
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I think you should include your evidence as it clearly supports your belief of what you interpret is access. If you read up on contempt you will see why this is relevant. The other side is likely trying to nail you for willful breach of a direction from the court. If you misunderstand (as your evidence shows) you have a reasonable defense I believe. Read all the information you can, including case law, on contempt of court with regards to family law and you will be able to summarize a succinct response.

Keep your response short and to the point.
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Old 11-04-2017, 07:17 PM
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Here is but just one article on contempt:

Remedies for Non-Compliance with Court Orders | WEL Partners Blog

"In order to find contempt of court, a three-part test must be met:

(a) The order that was breached must state clearly and unequivocally what must and must not be done;
(b) The party who disobeys the order must have done so deliberately and willfully; and
(c) The evidence must show contempt beyond a reasonable doubt."

the article goes on to talk about difference between civil and criminal contempt:

"civil contempt is used to compel compliance, and criminal contempt is employed to punish non-compliance."

So at this point, this is when the judge, before finding someone guilty of contempt, pushes for someone to comply.... or, as is commonly said, to "purge" their contempt.

Contempt is a really serious charge because your liberty (jail time) is at stake. Judges do not take these matters lightly. For this reason, and because judges know that family court is a highly emotional flux for everyone, the matter is typically dismissed.

You can show that you genuinely believed that the access had changed.

If you are going to continue on self-represented, it is imperative that you do your research. Get on CanLii for a start and start reading. Many of us on here can give you pointers on how to search articles, etc.
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Old 11-04-2017, 07:23 PM
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Thank you. I have read everything I could and I know it is important to show first the order was not clear. In this case, the order was issued orally but the Judge did not put it in writing and there is no recording.

Also, providing proof that you never received the order is one way to show that you did not willfully disobey a court order, from what I read.

Another argument I thought I could use is: The other party has previously allowed you not to comply (for instance, ex didn't show up for access for a total of 25 months), and you have evidence to prove this agreement.

This is a very good case for references related to contempt issues: https://www.canlii.org/en/on/onsc/do...6onsc3466.html

What to do you think?

And how about asking my previous lawyer to be a witness indicating that order was issued orally?
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Old 11-04-2017, 07:25 PM
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Quote:
Originally Posted by sunnyday123 View Post
OK, I also thought to include all evidence in the response.
One of the pieces of evidence is an email from my ex's lawyer speaking of that Saturday to my lawyer. T Another one is my statement appearing in the OCL report that access is every two Saturdays (could that be contested because it is "my" statement in the OCL Report?; anyways, it has not been contested within 30 days from the day the report was issued and now it is too late...)
Also, I found out that when both parties have a lawyer, settlement conferences are not recorded. Right now, I don't have a lawyer, but can that lawyer become my witness (just thinking) and testify that Judge decided to modify access rights?
This would show what your understanding of access was (even if it was incorrect). This goes to show that you did not "willfully" disregard a court order.

If a judge were to hear this case (I still think it will be tossed) you would probably simply be told emphatically the terms of the current Order and given a time-limit to comply. Of course if you can show that you have purged your contempt that will be beneficial to you.

Ignorance of the law isn't an excuse, particularly if you have chosen to be self-represented.

I'm sure there are cases similar to this on CanLii. Best to spend some time reading/researching.
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Old 11-04-2017, 07:51 PM
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Thank you so much.
I sent his lawyer an email asking: could you confirm that you have the same understanding of me that order has been modified to include access only on Saturdays? His answer was: "your interpretation is incorrect" So he agrees things are not clear.

Regarding purging contempt, it would be hard right now because ex thinks he has to come every two week-ends. So, if he takes the child, if will be from Friday to Monday.

My only problem is with school. I have no written thing from the settlement. He could show up with the order from 3 years ago. There is no police enforcement. Would the school understand this imbroglio?
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Old 11-04-2017, 09:46 PM
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I don't think I am the correct person to offer advice and/or information from about child custody matters.

Perhaps other people on this forum can help you.

Read and research.... and remember - knowledge is power.
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Old 11-05-2017, 01:01 AM
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No order can be made at settlement conference without both parties consent. Did you both consent? If not, then judge had no powers to make such order. Judge wouldn't also be able to order OCL at SC without parties consent. There would have to be a motion for it.

What ever your court order says for access, that's what access is. If it is not being followed, then you are in contempt.

Discussions at settlement conference are private, and can't be used at motions and trials. You can't show up to the contempt motion and say judge changed access at settlement conference. If you do, then you will need to have an order from settlement conference confirming same.

However, I am not sure how you would be in contempt if the other parent didn't show up on Fridays or Saturdays. Doesn't sound like you were withholding access if they chose not to show up. Were they showing up on Fridays and you were saying NO - come back on Saturday ?
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