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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 01-26-2017, 08:50 PM
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So I am going to court in a month. Just wondering if someone can shed light on the process for me. I have been reading quite a bit about it but want to know from real experiences...is there a possibility that a judge will simply dismiss my ex's application because there is no material change in circumstances? At what point would that happen? When can he obtain the motion to vary the agreement? I will have a first appearance but is a case conference a given after that? Just trying to better understand.


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Old 01-26-2017, 09:20 PM
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Originally Posted by Ange71727 View Post
So I am going to court in a month. Just wondering if someone can shed light on the process for me. I have been reading quite a bit about it but want to know from real experiences...is there a possibility that a judge will simply dismiss my ex's application because there is no material change in circumstances? At what point would that happen? When can he obtain the motion to vary the agreement? I will have a first appearance but is a case conference a given after that? Just trying to better understand.


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No judge will be present at the first appearance. It will be the clerks making sure all documents are filed. Adjournment are routinely granted if documents aren't ready. Since there is no judge, no costs can be ordered. A case conference date will be set.

At the case conference, a judge will be present and discuss the case. If the judge feels thst the case really has no merits then he or she may suggest a summary judgement motion to dismiss. But these motions are improper when the issue of material change is in question and fail 9/10 times on the probability that the moving party may be able to prove a material change. You will be scheduled for a settlement conference to settle the case. If there is no settlement then the judge has two options. A long hearing on the issue of material change (if he or she feels the case is weak or just doesn't like the moving party) or order a trial (if he or she feels confident that the case has merits and a good chance of being won).

You've got a long way to go. Start saving your nickels. And don't let the emotions drag you down.

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Last edited by trinton; 01-26-2017 at 09:24 PM.
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Old 01-26-2017, 09:37 PM
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No judge will be present at the first appearance. It will be the clerks making sure all documents are filed. Adjournment are routinely granted if documents aren't ready. Since there is no judge, no costs can be ordered. A case conference date will be set.

At the case conference, a judge will be present and discuss the case. If the judge feels thst the case really has no merits then he or she may suggest a summary judgement motion to dismiss. But these motions are improper when the issue of material change is in question and fail 9/10 times on the probability that the moving party may be able to prove a material change. You will be scheduled for a settlement conference to settle the case. If there is no settlement then the judge has two options. A long hearing on the issue of material change (if he or she feels the case is weak or just doesn't like the moving party) or order a trial (if he or she feels confident that the case has merits and a good chance of being won).

You've got a long way to go. Start saving your nickels.

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Ok. Thanks for the insight. I was under the impression that if there is no material change then he wouldn't get far. He will most likely be given the chance to try proving it, is what you're saying.


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Old 01-26-2017, 09:56 PM
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You could have several Case Conferences and Settlement Conferences, 4 way meetings, questioning periods, etc. Hope you have time and money to fight his request for the minute increase in access. Giddy Up!
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Old 01-26-2017, 10:34 PM
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So I am going to court in a month.
Do you know what you are scheduled for? Case Conference. Generally this is the first appearance in most court jurisdictions. "Going to court" is a general term. The question is for what?

With regards to a MCIC. Those are no walk in the park. Just look at the case law on it. I doubt there is a change that is material enough to meet the requirements of the court.
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Old 01-26-2017, 10:44 PM
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Do you know what you are scheduled for? Case Conference. Generally this is the first appearance in most court jurisdictions. "Going to court" is a general term. The question is for what?

With regards to a MCIC. Those are no walk in the park. Just look at the case law on it. I doubt there is a change that is material enough to meet the requirements of the court.
It all depends. There are many factors and many things. A material change could be something that happens the day before hearing or trial, or a fact that is founded at the hearing or trial. It's an issue that must be tried. Lots of case law of different material changes.

Generally small things relevant to one another can form a material change.

Example case, order is made when child is young and dad works bad hours, child gets older and starts school and fathers work hours changes.

Material change: order was based on childs tender years, the childs school and holiday schedule was not anticipated in the order, and a change to the fathers ability to meet the childs need triggered the threshold.

A court has power to change an order absent of a material change. There is case law on this. The order must be in the best interests of the child. The best interests of the child trumps everything. Even a material change threshold. If you have a consent court order that gives father 3 hours a week (which i have seen a dad give in to out of fear of supervised access), the courts going to toss the order absent of material change. The child is not going to be well adjusted stuck with only 3 hours a week with dad when dad wants weekends.

There might not be a material change to custody but there might be a material change to access.

Generally judges don't like to turn down a fathers request to have more time with his kids when he is in good standing and his motivation is not in question.


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Last edited by trinton; 01-26-2017 at 10:50 PM.
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Old 01-26-2017, 11:02 PM
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It all depends.
You keep believing that. I will stick to the standard set of case law that is applied as the test to a material change in circumstance. Judges rarely if ever go off script of the standards. Especially when they are cited 100+ times and sub cited thousands of time.
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Old 01-26-2017, 11:05 PM
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If you have a consent court order that gives father 3 hours a week (which i have seen a dad give in to out of fear of supervised access), the courts going to toss the order absent of material change.
If the order is not FINAL then yes. If the order is marked FINAL it is a whole different ball game. Remember, agreements made on consent, motions and other things that are not marked FINAL are always open for change.

It is the FINAL ORDER that you have to worry about. The OP in this matter has a FINAL ORDER. Vastly different than your situation that is still before the court with no FINAL ORDER issued.

You need to understand the nuances of what FINAL and WITHOUT PREJUDICE really mean.
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Old 01-26-2017, 11:12 PM
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If the order is not FINAL then yes. If the order is marked FINAL it is a whole different ball game. Remember, agreements made on consent, motions and other things that are not marked FINAL are always open for change.

It is the FINAL ORDER that you have to worry about. The OP in this matter has a FINAL ORDER. Vastly different than your situation that is still before the court with no FINAL ORDER issued.

You need to understand the nuances of what FINAL and WITHOUT PREJUDICE really mean.
I have a final order with material change ahead. Been pushing for over 2 years now. My case still stands in the courts. Hasn't been dismissed. Just keeps sailing towards trial.

And the 3 hours thing is not my case that's someone elses and yes that is final order as well. It was tossed.

The courts can change a final order absent of a material change. Are you really going to make me look up case law?

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Last edited by trinton; 01-26-2017 at 11:14 PM.
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Old 01-26-2017, 11:29 PM
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The courts can change a final order absent of a material change. Are you really going to make me look up case law?
Your choice. I am very familiar with the test for those circumstances. They are for minor changes and not big variations on custody and access.

Blah blah blah...

https://www.canlii.org/en/on/onca/do...015onca46.html

Good luck climbing that ^^^ hill. I am sure your lawyer has provided you this Appeal decision that is the subject of piles of blog posts and legal reviews. :O

Also this is the order that the Appeal court upheld in that matter for your reference too:

http://canlii.ca/t/g2s0d

In addition:

http://wiki.clicklaw.bc.ca/index.php...Family_Matters

Last edited by Tayken; 01-26-2017 at 11:45 PM.
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