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  • Motion and Costs question

    As you know we settled on day trial was supposed to start in January 2014. The parties did not deal with three holiday periods with the minutes of settlement. However, the three holiday periods still remain in the Separation Agreement but mom is refusing to follow them. It says that the three holiday (long weekends) will be shared equally in the Separation Agreement. Given mom had them for last two years they should be dad's for next two years but at the very least for this year. She is arguing that regular access take place. This cannot be true because the Separation Agreement speaks to these three weekends specifically and states they must be shared equally - and the Separation agreement says it is the "XXX weekend" so not just the holiday Monday...

    Dad has sent mom an email and asked if she will be cooperating in giving the holidays to dad. Last week she tore one side up and down him about it and then of course just dropped it. As far as she is concerned she is taking and keeping the holiday periods (and she always has regardless of what the SA states).

    So my question is: If dad has to file a motion on Monday (he has asked her to advise her cooperation by end of weekend) and at some point after he files his motion she ends up consenting to giving dad the weekends - Does dad still have the right to pursue costs?

    I ask this because he doesn't anticipate that she will agree to do what the SA states. And she might if she realizes dad is willing to seek the courts help. But we don't want this to become a pattern where he takes a day off to go to court house and file a motion only for her to agree the next day or soon after the paperwork is filed.

    Thoughts?

  • #2
    Do you not have a parenting coordinator? Seems a waste of court time, and yours, to have to be continually litigating this matter.

    Comment


    • #3
      Yup total waste of time.

      Parenting coordinators are on consent. And there is no need to seek a parenting coordinator - it's in the separation agreement...she just refuses to abide.

      Let me explain:

      If it benefits her - follow the agreement/order.
      If it benefits dad, ignore the agreement/order and make it so it benefits mom.

      Comment


      • #4
        Then you make your application/motion.

        Of course you will be able to prove you tried to do this out-of-court.

        Hope you are successful. I know too well how expensive/annoying it is to be pitted against unreasonable ex's.

        Comment


        • #5
          We just heard from mom and they don't want to cooperate with following the Separation Agreement. So I guess it is a motion we go. Funny enough, they want us to serve them as they "no longer have a lawyer" although their lawyer is indeed still on the record... needless to say we will be serving the lawyer.

          What do you suggest we put in the motion paperwork? We know the Order we want but where it states the law that we are relying on - do we put the clause of the Separation Agreement that speaks to these weekends?

          Comment


          • #6
            I don't know much about what you are asking, but what weekends exactly are we talking about? I am just curious

            Comment


            • #7
              Holiday weekends as stated in the separation agreement to be shared equally. Mom is refusing to give them to dad this year. Yet she had them last year. The weekends are specifically named in the SA.

              Comment


              • #8
                My life has basically been one long motion. Perhaps I can help. What specifically do you need help with?

                I'd refer to Rules of Court of your Province

                You have an application and an affidavit which are filed. Then you write a covering letter to opposing counsel and attach the filed court documents.

                The application format that I have used is:

                Court File Number:
                Court:
                Judicial Centre:
                Plaintiff:
                Defendant:
                Document: Application by Serene's Husband Plaintiff/Defendant
                Address for Service
                and Contact Information
                of Party Filing this Document:

                Notice to Respondent: Crazy lady - This application is made against you. You are a responent. You ahve the right ot state your side of the matter before the judge.

                To do so, you must be in Court when the application is heard as shown below:

                Date:
                Time:
                Where:
                Before Whom: Justice in Chambers
                Go to the end of this document to see what else you can do and when you must do it.

                Remedy claimed or sought:

                1. An Order that the Defendant ......
                2. Directing that the Defendant .....
                3. Directing specifically ......
                4. Costs of this application.
                5. Such other relief as the Court may see fit.

                Grounds for making this application:

                6. The Defendant is in contempt of the Order of xxxxx for her failure to ....
                7. The Defendant is likely to continue to disregard previous court orders....
                8. The Defendant has .....

                Material or evidence to be relied on:

                9. The Separation Agreement in this action;
                10. The Order of Justice xxx, granted on xxxx
                11. Affidavits sworn in this action;
                12. Familiy Chambers materials filed by the parties regarding their appearance on xxxx
                13. Affidavit of xxxx sworn on xxxxx

                Applicable rules:

                14. list rules of court applicable to this action

                Applicable Acts and regulations:

                15. list Divorce Act (Canada)
                16. Rules of Court (Ontario)

                Any irregularity complained of or objection relied on:

                17.

                How the Application is proposed to be heard or considered:

                18.

                Warning: If you do not come to Court in person or by your lawyer, the Court may give the applicant(s).......


                Anyhow that's basically the application part. Of course you might have a variance in Ontario.

                Comment


                • #9
                  Thanks Arabian, you gave me some good ideas on text to put within our motion paperwork. We live in Ontario so there is a form to complete (motion form). I guess for laws I put family law act and divorce act?

                  Comment


                  • #10
                    I have to add - this is so silly. Shared equally means shared equally. If you had them last year then it switches to other parent this year. To test the courts and face legal costs just to push the envelope in spite is silly. It is also testament to how reasonable and cooperative a person is.

                    We will be serving with an offer to settle as well. I realize most offers say each party to bear their own costs. But frankly, we are tired of this. Dad is wanting to put a dollar amount in the offer to settle as he will miss work just to file motion paperwork. Thoughts? Suggested wording?

                    Comment


                    • #11
                      A few years ago I went to court with ex over his "interpretation" of the divorce judgement. I can dig through that if you'd like as it sounds as though there exists a basic disagreement regarding the interpretation of the Order.

                      You have emailed her often to try to resolve the matter. Those emails, and her responses, might be relevant exhibits?

                      Comment


                      • #12
                        No there is no disagreement about what SA states. She just doesn't want to follow it. And it's typical of her.

                        Yes we have those emails. She tends to ignore the questions and ramble about something else irrelevant. Her bf is now responding, which in itself is fine, but he too is irrelevant and has basically said go to court.

                        Bottom line: SA says shared equally.

                        Mom takes the holiday weekends and is not sharing equally.

                        Pretty clear to me.

                        Comment


                        • #13
                          Done! We are very grateful for the assistance of other members of this forum!

                          Comment

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