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  • Factum and Motion

    Hello,

    I'm trying to understand the Factum and Motion. I have read a Factum and at the end it has a Section for "Orders Sought"

    Do you submit a Factum as well as your Motion, or in place of your Motion? If you submit both, are the orders sought in your Factum just a copy of the orders sought in your Motion?

    Thank you

  • #2
    Do you submit a Factum as well as your Motion, or in place of your Motion?
    A factum is submitted for long motions, in addition to the motion form and other documentation. Short motions do not require facta.

    are the orders sought in your Factum just a copy of the orders sought in your Motion?
    Yes.

    Comment


    • #3
      Would you refer to evidence, other than your affidavit, in your Factum, or would you leave the reference to evidence in the motion alone?

      Thank you

      Comment


      • #4
        For your reference - http://www.ottawadivorce.com/forum/f...m-writing-868/

        If you need to, refer to evidence in support of your facts. Otherwise, refer to jurisprudence in support of your analysis.

        Comment


        • #5
          Originally posted by mr.mom View Post
          Would you refer to evidence, other than your affidavit, in your Factum, or would you leave the reference to evidence in the motion alone?

          Thank you
          That is a good question... Hard to answer but here is a perspective.

          The only place you can put evidence is into an affidavit. So, if the evidence you are referring to in the factum is not contained in the continuing record then possibly not. The factum is not officially filed into the continuing record and is not affirmed to the truth. I often think of factums as a "coles notes" to the continuing record and the evidence contained within the record.

          OldLawyer discussed in another thread submitting a Trial Record and that some judges like this and some don't. It was really useful advice on how to handle materials in court. If you search for it you can find it.

          You may want to check into OldLawyer's comments in that other thread as you may be able to submit a Trial Record in accordance with the Rules for a long motion but, do some research prior to doing so as I am not certain you can.

          Motion Rules also generally only allow you to address on oral arguments affidavit materials and evidence contained in affidavits.

          Long motions can get really complex.

          Good Luck!
          Tayken

          Comment


          • #6
            Originally posted by OrleansLawyer View Post
            For your reference - http://www.ottawadivorce.com/forum/f...m-writing-868/

            If you need to, refer to evidence in support of your facts. Otherwise, refer to jurisprudence in support of your analysis.
            But, does the evidence in support of your facts have to be derived from the continuing record? For example, you can't put a document into the factum and state it as a "fact". (This document wouldn't be found anywhere in the continuing record.)

            I would assume that the factum is submitted with the affidavit and a new factum could be issued upon response to materials.

            Ugh, all long motions should be scheduled preemptive on both parties with clear filing deadlines for submissions and responses in my personal opinion.

            Good Luck!
            Tayken

            Comment


            • #7
              does the evidence in support of your facts have to be derived from the continuing record? For example, you can't put a document into the factum and state it as a "fact". (This document wouldn't be found anywhere in the continuing record.)
              In preparing for the motion, affidavit evidence to support your fact situation should have been sworn and filed. Reference to this in the factum would be advantageous.

              The references are mainly to evidence your position in the event it is contested. Presumably, simple facts - "the child's name is XXXX, born on YYYY", or "Party A moved out of the home on ZZZZ after party R was charged with assault" - are not a point of contention. If facts are in question, the references to sworn statements (including exhibits if appropriate) avoid arguing over what happened.

              Some people are of the opinion that most judges read most facta but few judges read beyond that, excepting special circumstances.

              Comment


              • #8
                Originally posted by OrleansLawyer View Post
                In preparing for the motion, affidavit evidence to support your fact situation should have been sworn and filed. Reference to this in the factum would be advantageous.
                This is where a lawyer is applied and an advantage to have.

                Originally posted by OrleansLawyer View Post
                The references are mainly to evidence your position in the event it is contested. Presumably, simple facts - "the child's name is XXXX, born on YYYY", or "Party A moved out of the home on ZZZZ after party R was charged with assault" - are not a point of contention. If facts are in question, the references to sworn statements (including exhibits if appropriate) avoid arguing over what happened.
                Arguments are presented in affidavits (and oral argument) and not in a factum. So the key element of a factum is to not raise "new" facts that would be "contentious"? Or stated another way... To state facts that are not in dispute or could not be disputed. (Per the examples provided in your message.)

                Originally posted by OrleansLawyer View Post
                Some people are of the opinion that most judges read most facta but few judges read beyond that, excepting special circumstances.
                I find in "high conflict" cases with huge continuing records the justices do take the time to read the whole file generally these days. (Well, in the two jurisdictions I sit in on long motion hearings at when I get time.)

                Specific judges on the bench will read all the materials, even have prepared notes and really pay attention these days (personal opinion) for "high conflict" matters in family law.

                It would be better if there could be a "one family one judge" more often in "high conflict" cases.

                Good Luck!
                Tayken

                Comment


                • #9
                  sorry for all the questions, I'm trying to prepare a motion and a factum right now.

                  My stbx and I have a loan in both our names for a vehicle which she has retained, and is in her name. I need to protect my self if she decided not to pay the loan.

                  What is the wording used to request an order to get my name off the vehicle loan?

                  Thank you

                  Comment


                  • #10
                    So the key element of a factum is to not raise "new" facts that would be "contentious"? Or stated another way... To state facts that are not in dispute or could not be disputed. (Per the examples provided in your message.)
                    Some people find it helpful to view the factum as being your oral arguments, written. If there are significant disputes over the facts which have an impact on arguments (for example, whether or not there was a charge for assault), this would be included.

                    Reasonable parties should not contest material facts that may be proven. Similarly, it may be found to be imprudent to advance a position that lacks material proof. If the facts are material and you are unsure if they will be contested, you may wish to deal with them prior to the motion through a request to admit. If not admitted, then it opens the door for seeking the costs of proving the fact in court.

                    the justices do take the time to read the whole file
                    Some do. From a motion stand point, it may be safer to assume the judge is only familiar with what you have presented in your motion material and factum. This thinking encourages references to facts located elsewhere if they are needed.

                    Comment


                    • #11
                      Originally posted by OrleansLawyer View Post
                      Some people find it helpful to view the factum as being your oral arguments, written. If there are significant disputes over the facts which have an impact on arguments (for example, whether or not there was a charge for assault), this would be included.

                      Reasonable parties should not contest material facts that may be proven. Similarly, it may be found to be imprudent to advance a position that lacks material proof. If the facts are material and you are unsure if they will be contested, you may wish to deal with them prior to the motion through a request to admit. If not admitted, then it opens the door for seeking the costs of proving the fact in court.
                      Thanks for the clarification. Really appreciate it!

                      Originally posted by OrleansLawyer View Post
                      Some do. From a motion stand point, it may be safer to assume the judge is only familiar with what you have presented in your motion material and factum. This thinking encourages references to facts located elsewhere if they are needed.
                      Other "roomers" I hear from solicitors in the court rooms.

                      Justice X only generally reads every second page of the affidavits.
                      Justice Y only generally reads every second paragraph of the affidavits.

                      It would be great if there could be better containment of motions so that parties are kept to the matter for which temporary relief is being requested on. Rather than some materials which I have seen that have 300+ allegations in a single affidavit set from one of the litigants (or both!).

                      Good Luck!
                      Tayken

                      Comment

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