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  • motion to move file to another jurisdiction

    I have a motion to Change child support filed with Sarnia. My x wants it moved to Kitchener. More convenient for her. We have already done a case conf and we tried to have a settlement conf. She protests by not coming to court and doing it by teleconference. Then she made a motion to move it. The motion was put into the contining record the day before the settlement conf. The judge decided to not proceed with the conf and instead set a date for the motion to be heard.
    1) why was this recieved into the continuing record?
    2) why did the judge even acknowledge it
    3) how do I defend staying in Sarnia (more convenient for me).
    I spent 10 days in trial in Kitchener already plus about 30 other trips to deal with the contentious divorce.
    I am a little jaded by all of this having lost nearly all of my assets to the lawyers (over $250k) and the x ($300k).

    I believe that I can persuit this case in my jurisdiction because it is for changing child support. Right or wrong?

  • #2
    So there is a child involved -- where does the child currently reside? Where the case/file is heard is typically in the jurisdiction where the child resides, if it's a matter concerning the child.

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    • #3
      Yes, 2 children. They live with mom in Cambridge. I was told by the clerks in Sarnia that I should do Motion to Change in my jurisdiction if it only applies to child support.

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      • #4
        I am filling out the affidavit in response to her motion to move the jurisdiction. What legal rule can I rely on to support that I must make a 'motion to change' in my municipality?
        I have already looked at the Family Law Rules so I cited 5.1a and 5.3a but that is thin protection.

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        • #5
          I was told the same thing in Newmarket. That you can file outside the jurisdiction where the child lives when ONLY CS is involved. Unfortunately the clerk didnt tell me where to find this rule

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          • #6
            Just wondering if you have found the reference regarding initiating a motion to change CS in a different city where the child resides.

            My daughter will be 18 soon and may not be attending post secondary education. I am just gathering information at this time because I know that I will have to initiate the motion and would like to do it in the city that I live in (which is different from where my daughter lives).

            I too have heard that if it only involves a change in CS then I can file the motion in my city. If this is true then where is the documentation to prove this because I know the ex will fight that all the way.

            Thanks in advance,
            Fam Law

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            • #7
              From:

              Transferring a Case or a Step in a Case: Rule 5(8) of the Family Law Rules


              When assessing the need for substantial convenience to justify a transfer, the court considers the following:

              - where the parties reside and the inconvenience of travel;
              - the inability of the parties to financially continue on the case if transferred;
              - the availability of the best evidence, including witnesses, expert and lay;
              - whether the case is being case managed;
              - where the children are involved, where the children are ordinarily resident and the child’s best interests; and
              - the stage of litigation and the ability of the court of the proposed municipality to get up to speed on the case.

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              • #8
                Ace - did I read that correctly - $250, 000.00 in legal so far or was that a typo?

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                • #9
                  Thanks for the information firhill. I have printed it off. In my case it wouldn't involve a transfer. I plan to initiate the motion in the city that I live. The motion will be to either change CS or terminate CS depending on what my daughter decides to do after she graduates in June.

                  Either way I will initiate the Motion in my city even though my daughter lives with her mother in another city. I just hope that I won't get told to file in their city when I go.

                  Thanks again,
                  Fam Law

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                  • #10
                    Originally posted by Ace View Post
                    1) why was this recieved into the continuing record?
                    Because it was served on you that day in accordance with the Rules and they have to file the motion with the court (which gets the materials put into the continuing record) and on you as the other party. No "Rule" was broken by the clerk for entering the materials for the motion into the continuing record.

                    Originally posted by Ace View Post
                    2) why did the judge even acknowledge it
                    Why wouldn't the judge? In fact, the judge did the right thing and which is allowable at a conference and set a date for a motions judge to hear the materials. I hope you are preparing your counter argument to keep the motion in the current court jurisdiction.

                    Originally posted by Ace View Post
                    3) how do I defend staying in Sarnia (more convenient for me).
                    A book of authorities, factum and an affidavit in response.

                    Originally posted by Ace View Post
                    I spent 10 days in trial in Kitchener already plus about 30 other trips to deal with the contentious divorce.

                    I am a little jaded by all of this having lost nearly all of my assets to the lawyers (over $250k) and the x ($300k).
                    If this "jaded" emotional state is evident in your materials filed to the court and oral arguments at the motion hearing and you try to use this as an opportunity to argue all the "injustices" you have suffered before the court... You may find yourself back before the Kitchener Superior Court to hear the matter you brought forward possibly in the wrong jurisdiction.

                    Generally, where the children reside and where the trial was heard is where these matters should be brought forward. If you brought the Application in the other jurisdiction with the hopes to annoy the other parent, it won't bold well before you... Even before a new court jurisdiction.

                    Furthermore, the justice may want to return the matter to the other court as you are not the custodial parent and probably only have limited access due to geography to the children.

                    If you logically review the "best interests" is it in their best interests that their primary caregiver travel to the non-primary care giver's jurisdiction to hear a matter? Just saying...

                    Originally posted by Ace View Post
                    I believe that I can persuit this case in my jurisdiction because it is for changing child support. Right or wrong?
                    Grey area. There is no "right or wrong" and it will be up to the judge hearing the motion to determine and apply the Rules and any supporting case law provided in your BoA on the matter.

                    Good Luck!
                    Tayken

                    Comment


                    • #11
                      Originally posted by firhill View Post
                      From:

                      Transferring a Case or a Step in a Case: Rule 5(8) of the Family Law Rules


                      When assessing the need for substantial convenience to justify a transfer, the court considers the following:

                      - where the parties reside and the inconvenience of travel;
                      - the inability of the parties to financially continue on the case if transferred;
                      - the availability of the best evidence, including witnesses, expert and lay;
                      - whether the case is being case managed;
                      - where the children are involved, where the children are ordinarily resident and the child’s best interests; and
                      - the stage of litigation and the ability of the court of the proposed municipality to get up to speed on the case.
                      Rule 22.(1) of the Children's Law Reform Act can mess up things with Rule 5.(8) of the FLR though which is the "grey" in the area of it all as the "best interests" test is governed by the "best interests" test.

                      Depending on the age of the children involved, it isn't a hard argument for the Respondent in this matter to argue "- where the children are involved, where the children are ordinarily resident and the child’s best interests; and" that they are the primary caregiver and as such it would not be in the children's "best interests" for them to commute so far for matters.

                      I would not recommend to anyone with minor children (under the age of 14) that filing in their jurisdiction for any matter (if it is different than the children's residential jurisdiction/habitual residential location). Why bother with the potential for opposition (just as the OP is experiencing) from the other party to the matter? It just costs money, time and causes emotional stress. Furthermore, if the court determines otherwise, you could find yourself paying costs if you were unreasonable.

                      Especially if the children are under the age of 10 as they need supervision when alone generally. Displacing the children's primary caregiver to facilitate the other parent's jurisdictional location in my honest opinion is not in the children's "best interests" and as such, if the OP's children are under 14 I personally think the court will return things to Kitchener where the trial was heard.

                      Forum shopping is not a good idea...

                      Good Luck!
                      Tayken
                      Last edited by Tayken; 12-05-2012, 01:09 PM.

                      Comment

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