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Old 11-03-2006, 06:03 PM
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inlimbo,

welcome to the forum,

as you mentioned

Quote:
In the meantime, how can I strike out the fraudulent Court Order obtained?
You have to bring forth a motion - see the Family Law Rules - Courts of Justice Act O. Reg. 114/99

link to the same

http://www.e-laws.gov.on.ca/DBLaws/R.../990114a_e.htm

Rule 15(14) is applicable with this type of situation


CHANGING ORDER — FRAUD, MISTAKE, LACK OF NOTICE

(14) The court may, on motion, change an order that,

(a) was obtained by fraud;


(b) contains a mistake;

(c) needs to be changed to deal with a matter that was before the court but that it did not decide;

(d) was made on a motion without notice; or

(e) was made on a motion with notice, if through accident or inadequate notice an affected party did not appear on the motion. O. Reg. 114/99, r. 15 (14).

Quote:
Ex has been using the suspicious Order to gain access to school, teachers & general info.
Regardless of what custodial regime is in place for the child or children, sole or joint etc., the law provides by default that BOTH parent's are equally entitled to make inquires and to be given information in regards to the health, education and welfare of the child.


see the relevant law providing same; section 20(5) of the Children's Law Reform Act R.S.O. 1990 c.C.12

http://www.e-laws.gov.on.ca/DBLaws/S...c12_e.htm#BK42

Access

(5) The entitlement to access to a child includes the right to visit with and be visited by the child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child. R.S.O. 1990, c. C.12, s. 20 (5).

Quote:
I want sole custody on paper
There is a presumption in family law that the starting point for custody adjudications of children is a joint custody regime. The courts apply the best interest test. See section 24(1) and two of the act.

The onus is on the party who desires a sole custody regime of the child or children to prove on the balance of probabilities that a sole custody regime would be superior than a Joint custodial regime by applying the best interest test. Communication and co-operation between the parties are significant factors. However, Courts are aware that one parent may deliberately choose not to co-operate or communicate to support their claim for sole custody. Often courts do order Joint custody or Parallel Parenting regimes of children where no-historical cooperation or communication exists.

see this case

Z.(A.) v. W.(J.), 2004 ONCJ 157 (CanLII)

http://www.canlii.org/on/cas/oncj/2004/2004oncj157.html


Quote:
I have had Defacto for 5 yrs but I want it on paper as final since the fraudulent order is effective (or I pressume so?)
In Ontario, until a separation agreement is in place OR an order from the court providing otherwise, BOTH parent's have coextensive custody of the child. In your situation you have an order from the court providing joint custody.

See section 20(1) of the CLR

Father and mother entitled to custody

20. (1) Except as otherwise provided in this Part, the father and the mother of a child are equally entitled to custody of the child. R.S.O. 1990, c. C.12, s. 20 (1).

See section 20(7) of the act

Entitlement subject to agreement or order

(7) Any entitlement to custody or access or incidents of custody under this section is subject to alteration by an order of the court or by separation agreement. R.S.O. 1990, c. C.12, s. 20 (7).


Quote:
In Case conference we were given permission to bring motion and ex consented to disclosing income (ex has so far refused...saying has not filed since 03, is self-employed - law clerk).
Lawyer seems to think 'trying to reach an agreement' (i.e offers to settle) is best approach.
I am not so sure.
continued next post
  #2 (permalink)  
Old 11-03-2006, 06:03 PM
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continued from previous

Support of children is paramount.

See the Family Law Act, Ontario REGULATION 391/97, Amended to O. Reg. 102/06

CHILD SUPPORT GUIDELINES

see section 21(1) and (2)

http://www.e-laws.gov.on.ca/DBLaws/R...391_e.htm#BK20

Income Information

Obligation of applicant

21. (1) A parent or spouse who is applying for an order for the support of a child and whose income information is necessary to determine the amount of the order must include with the application,

(a) a copy of every personal income tax return filed by the parent or spouse for each of the three most recent taxation years;

(b) a copy of every notice of assessment and reassessment issued to the parent or spouse for each of the three most recent taxation years;

(c) where the parent or spouse is an employee, the most recent statement of earnings indicating the total earnings paid in the year to date, including overtime, or, where such a statement is not provided by the employer, a letter from the parent’s or spouse’s employer setting out that information including the parent’s or spouse’s rate of annual salary or remuneration;

(d) where the parent or spouse is self-employed, for the three most recent taxation years,

(i) the financial statements of the parent’s or spouse’s business or professional practice, other than a partnership, and

(ii) a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the parent or spouse does not deal at arm’s length;

(e) where the parent or spouse is a partner in a partnership, confirmation of the parent’s or spouse’s income and draw from, and capital in, the partnership for its three most recent taxation years;

(f) where the parent or spouse controls a corporation, for its three most recent taxation years,

(i) the financial statements of the corporation and its subsidiaries, and

(ii) a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the corporation, and every related corporation, does not deal at arm’s length;

(g) where the parent or spouse is a beneficiary under a trust, a copy of the trust settlement agreement and copies of the trust’s three most recent financial statements; and

(h) in addition to any information that must be included under clauses (c) to (g), where the parent or spouse receives income from employment insurance, social assistance, a pension, workers compensation, disability payments or any other source, the most recent statement of income indicating the total amount of income from the applicable source during the current year or, if such a statement is not provided, a letter from the appropriate authority stating the required information. O. Reg. 391/97, s. 21 (1); O. Reg. 446/01, s. 7.

Obligation of respondent

(2) A parent or spouse who is served with an application for an order for the support of a child and whose income information is necessary to determine the amount of the order, must, within 30 days after the application is served if the parent or spouse resides in Canada or the United States or within 60 days if the parent or spouse resides elsewhere, or such other time limit as the court specifies, provide the court, as well as the other spouse, an applicant under section 33 of the Act or the order assignee with the documents referred to in subsection (1). O. Reg. 391/97, s. 21 (2).

Failure to comply

22. (1) Where a parent or spouse fails to comply with section 21, the other spouse, an applicant under section 33 of the Act or an order assignee may apply,

(a) to have the application for an order for the support of a child set down for a hearing, or move for judgment; or

(b) for an order requiring the parent or spouse who failed to comply to provide the court, as well as the other parent or spouse or order assignee, as the case may be, with the required documents. O. Reg. 391/97, s. 22 (1).

Costs of the proceedings

(2) Where a court makes an order under clause (1) (a) or (b), the court may award costs in favour of the other spouse, the applicant under section 33 of the Act or an order assignee up to an amount that fully compensates the other spouse, the applicant or order assignee for all costs incurred in the proceedings. O. Reg. 391/97, s. 22 (2).

Adverse inference

23. Where the court proceeds to a hearing on the basis of an application under clause 22 (1) (a), the court may draw an adverse inference against the parent or spouse who failed to comply and impute income to that parent or spouse in such amount as it considers appropriate. O. Reg. 391/97, s. 23.

Failure to comply with court order

24. Where a parent or spouse fails to comply with an order issued on the basis of an application under clause 22 (1) (b), the court may,

(a) strike out any of the parent’s or spouse’s pleadings;

(b) make a contempt order against the parent or spouse;

(c) proceed to a hearing, in the course of which it may draw an adverse inference against the parent or spouse and impute income to that parent or spouse in such amount as it considers appropriate; and

(d) award costs in favour of the other spouse, an applicant under section 33 of the Act or an order assignee up to an amount that fully compensates the other spouse, the applicant or assignee for all costs incurred in the proceedings. O. Reg. 391/97, s. 24.

Continuing obligation to provide income information

25. (1) Every parent or spouse against whom an order for the support of a child has been made must, on the written request of the other spouse or the person or agency entitled to payment under the order not more than once a year after the making of the order and as long as the child is a child within the meaning of these guidelines, provide that other spouse, or the person or agency entitled to payment under the order, with,

(a) the documents referred to in subsection 21 (1) for any of the three most recent taxation years for which the parent or spouse has not previously provided the documents;

(b) as applicable, any current information in writing, about the status of any expenses included in the order pursuant to subsection 7 (1); and

(c) as applicable, any current information, in writing, about the circumstances relied on by the court in a determination of undue hardship. O. Reg. 391/97, s. 25 (1).


To clear up the child support issue, you need to take steps and if you receive Resistance from the other party, then you have no other option than to bring forth a motion to receive same.


lv
  #3 (permalink)  
Old 11-04-2006, 01:11 AM
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Unhappy Hello, I'm new. My concern? Order obtained fraudulently

Hello to all:

I separated in 01. No agreements, No access arrangements.
No communication. Nothing.

Final Court Order for divorce, joint custody, child support was obtained fraudulently in 04 .

Ex lied I that I was aware, lied that we agreed to joint custody, and that c.s. payments were taking place and were in accordance with guidelines. -

(All are lies -and they admitted in their Affidavit.....yet they refuse to give me sole custody, wanting joint).

I have had Defacto for 5 yrs but I want it on paper as final since the fraudulent order is effective (or I pressume so?)
I got a lawyer as soon as I became aware of the Order in 05.
The kids lived overseas with me till 05 when we returned to Ontario and he sees them alternate Saturdays).

I want sole custody on paper.

It has been one year since we began the dispute and I have spent 15K so far.... just on first c.conference, letters back and forth.
In Case conference we were given permission to bring motion and ex consented to disclosing income (ex has so far refused...saying has not filed since 03, is self-employed - law clerk).
Lawyer seems to think 'trying to reach an agreement' (i.e offers to settle) is best approach.
I am not so sure.

In the meantime, how can I strike out the fraudulent Court Order obtained?

There is no OTHER (temp or interim) Order really as of today that says anything about custody or access...
Ex has been using the suspicious Order to gain access to school, teachers & general info.

I hope you can help me.
Thanks ,
Inlimbo.
  #4 (permalink)  
Old 11-10-2006, 01:17 AM
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Default Thank you, Lv!...one more question!

Lv,

Thank you so much for sharing plenty of your knowledge.
Thank you for being so selfless!

Question;
I am still wondering .....should I bother to make an Offer to Settle?
(sounds logical that I should ?!, ) Should I?
And, if I do make one in my case, is it best to it an 'all-or-none'type of offer? OR deal/settle with some issues and leave others for a Motion that I'd bring?

BUT THEN at times I wonder whether to save $$ in preparing Offer that most likely will be rejected....and just skip straight to bringing a motion.
I understand benefit of Offers also includes possibility of gaining costs in the end but I am not driven by this b/c chances are slim.


Many thanks,
Inlimbo.
  #5 (permalink)  
Old 11-16-2006, 11:50 AM
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inlimbo,

It does not hurt to make an offer to settle, In fact, I highly recommend it. Who knows, they may take your offer or they may proceed to motion. If they are successful on their motion, there is a presumption that a successful party is entitled to costs of same, However other factors are relevant such as an offer to settle. If you have offered more than what they obtained on motion, I suspect no order for costs. If you ordered close to what they received on motion, again perhaps no costs etc. Basically the court has the discretion to order costs taking into consideration the facts.

lv
  #6 (permalink)  
Old 11-16-2006, 09:22 PM
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Smile Thanks



Logicalvelocity,

Thank you ever so much!
Your explanation has helped me see clearly what to do.

inlimbo
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