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  • Form 8 Application

    Can a form 8 application that has been filed in court but not served be withdrawn?

    If so, how would one do so?

    The reason I am asking is that the original information and pleadings filed with it are completely out of date and would need extensive amendments.

    There was a case conference originally scheduled, but there is none currently set.

    Also, if I have not served her, can I be compelled to serve her?

    Finally, I presume that she has the right to file her own form 8 application and serve it on me. Is this correct?

  • #2
    I believe you have to complete Form 12 (Notice of Withdrawal) and serve on opposing party as per rules of service. Then complete an Affidavit of Service and file the Notice of Withdrawal along with Affidavit of Service with the Court.

    Given that she has not been served and I am assuming therefore has not filed anything in response, you are not likely to face any costs.

    Yes, unless she has been prohibited by court, she may file her own application materials and file/serve.
    Last edited by Nadia; 10-30-2012, 11:15 AM.

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    • #3
      How much can change in a few months?

      In any event, if you have not served and filed the application then you can amend it without the other parties' consent. Serve and file both original and amended applications.

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      • #4
        Except if he amends, then he will have to underline each and every change, and add statement to the effect, "Amended as per rule...and date" at the bottom of each page.

        If the changes are significant or if the issue (contained in the original application) is moot and now superseded by other important issues, would it not make sense to simply withdraw the application and submit a fresh application from scratch?

        In short, it all depends upon how extensive the amendments are and whether the issue/issues contained in the original application are the same/similar to what you intend to include in your fresh application.

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        • #5
          Many facts have changed since the original application was filed over 15 months ago. We have started mediation for the child issues and have shared residential custody in place. The financial issues are much easier to negotiate now with respect to child and spousal support. I am currently unemployed and she is now employed. We have physically separated now as she has moved out.

          The major reason why her lawyer wants me to file is so that they can cross file a property claim. Her lawyer now acknowledges if I do not file, then they will file. Their main concern is that the statue of limitations has expired concerning property claims. They have stated that if I want to avoid court, they want me to consent to extending the limitation period which my previous lawyer advised me not to do.

          To revise the original application, as noted, will cost more money and time than simply filing a new application. Fortunately for me, our last case conference date of Nov. 21 was not registered in the court due to an error, and before her lawyer tries to set a new date, I would like to withdraw my application.

          It would be better for her to file to minimize my costs as then I could see what the basis of her property claim is (there should be no claim, we were common law for 4 years as per her lawyer and 3 years as per my claim) to my property and respond to it accordlying. She has either worked or gone to school full-time for the majority of the past 5 years. She has not paid the mortgage, any bills, nor contributed to the renovation of my properties. I just cannot see the basis for a trust or unjust enrichment claim.

          Another question I have is it better for me to file and be the applicant or let her file and be the respondent. Tactically, is one better than the other or does it really matter?

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