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  • Update: first court appearance

    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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  • #2
    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, 10:24 PM.

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    • #3
      Originally posted by trinton View Post
      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.

      Sent from my SM-G935F using Tapatalk


      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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      • #4
        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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        • #5
          Originally posted by Ange71727 View Post
          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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          • #6
            Originally posted by Tayken View Post
            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, 11:50 PM.

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            • #7
              Originally posted by trinton View Post
              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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              • #8
                Originally posted by trinton View Post
                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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                • #9
                  Originally posted by Tayken View Post
                  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; 01-27-2017, 12:14 AM.

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                  • #10
                    Originally posted by trinton View Post
                    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; 01-27-2017, 12:45 AM.

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                    • #11
                      Originally posted by Tayken View Post
                      Your choice.
                      I must must must.


                      Even if there is no material change in the circumstances as the provision requires, a court may vary or set aside an agreement that is not in the best interests of the child: T.C. v. L.S., 2009 BCPC 275 (CanLII) at para. 15.

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                      • #12
                        Originally posted by trinton View Post
                        I must must must.
                        Read my reply. Thanks for the BC case law. I cited you better case law to review that is the leading case now in Ontario. It contemplates your view and throws it out the window.

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                        • #13
                          Originally posted by Tayken View Post
                          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:

                          Changing Final Orders in Family Matters - Clicklaw Wikibooks
                          and following a final decision of that kind is where you stop paying child support and start picking up your child straight from school and making decisions that best serve your child, as opposed to letting a stranger make them for you. Being a father is a human right, not a legal one. But then again, we live in Canada. A very sad country indeed.

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                          • #14
                            Originally posted by trinton View Post
                            and following a final decision of that kind is where you stop paying child support and start picking up your child straight from school and making decisions that best serve your child, as opposed to letting a stranger make them for you. Being a father is a human right, not a legal one. But then again, we live in Canada. A very sad country indeed.
                            Actually being a parent is not a "human right". You cited the "best interests of the child". Parents have no rights. Children have all the rights. You should know this?

                            Your case will face this appeal in the BoA BTW. It is very commonly cited and relied upon in 2017. So you better have an answer for each and every one of the rebuttals.

                            As an advocate for parents who have been left behind as a result of Parental Abduction your comments are very concerning. I hope this is just an expression of your frustration and not an actual belief you have. I hope that you will take your own action and abduct your children if you don't get what you want.
                            Last edited by Tayken; 01-27-2017, 01:02 AM.

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                            • #15
                              Originally posted by Tayken View Post
                              Read my reply. Thanks for the BC case law. I cited you better case law to review that is the leading case now in Ontario. It contemplates your view and throws it out the window.
                              It actually makes no reference to my case law. I don't think any of those judges want the public to know that they do hold the power to overturn custody orders absent of a material change. They just don't want people to know that the best interests of the child overrides it. Looks like they concluded that the child was well adjusted and thriving. If there was any sign of the child not being happy and not thriving, they would have changed it. But then again, there is no way that child is happy, we sure as hell know that the father isn't, the child is going to have all sorts of anxieties and other issues due to the state those soulless judges have put the child and father relationship in.
                              Last edited by trinton; 01-27-2017, 01:35 AM.

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