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Common Law Issues The law regarding common law relationships is different than in cases of divorce. Discuss the issues that affect unmarried couples here.

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Old 08-10-2012, 04:35 PM
Soccermom Soccermom is offline
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Default When to file a cross-motion for child support

Hi everyone. I'm new here and hope someone can help me as after searching the internet, I'm still unclear as to what I should do.

My ex and I (never married just common law) are parents to two children, one is his bio child and the other he was 'dad' to the child. This child's bio dad died 5 years ago, but he wasn't aware of this child and obviously didn't pay support. Long story, but the ex was alcoholic/abusive and did not want the bio dad involved and sadly, I went along with that.

When the ex and I parted ways we discussed child support and I agreed I would not go after him for non-bio child specifically, if he continued to pay the court-ordered child support for his bio child, until both children were at least 18. Because he'd tried to claim undue hardship before and the fact that I just wanted my kids to have some semblance of a peaceful life, I agreed to this.

For five years, my ex had visitation with both children, I believed everything to be going well and then he disappeared. I was told by a mutal friend that he was living out of province, but he could/would not provide specific information. This has been very hurtful to the children and I can't speak to the reasons my ex behaved this way.

However, now that his bio child is going to be 18 (altho he's still in school full-time), my ex has a Motion to Change child support and is looking to terminate it altogether. I realize this won't happen because the child is still dependent, but now I wish to see if I can get child support for his non bio child. I am on CPPD and every penny helps!

My problem is...do I file a cross-motion in regards to the non-bio child support before my court date for the bio child support case? I have a date to appear in court, but there's no indication of a case conference. Do I wait to file a motion after a case conference...assuming there will be one?

I think I understand what I need to file, I just don't know when to file. Thanking you in advance for any help!
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Old 08-10-2012, 06:08 PM
Soccermom Soccermom is offline
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Hope I posted this thread in the correct forum.

As well, when filing a cross-motion for child support, part of my question was do I do that in response to the motion to change for child support...or would it be a completely separate issue.

I did receive 20 minutes of 'help' at the FLIC office...lol...but that raised more questions than answers.

Thanks again.
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Old 08-10-2012, 06:26 PM
OrleansLawyer OrleansLawyer is offline
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I just don't know when to file.
As soon as you can ready your materials.

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My problem is...do I file a cross-motion in regards to the non-bio child support before my court date for the bio child support case?
What did the previous Order say? If it deals with child support for both children then it can all fall under Form 15B: Response to Motion to Change. If only the child support for the bio child was dealt with, you could try to include it but risk being forced to bring a new application. Your success would depend on the wording of the motion. In either event, definitely file the Form 15B long before the case conference along with a case conference brief.

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Do I wait to file a motion after a case conference...assuming there will be one?
Any motions after the case conference will only be for issues already raised. If you do not file any responding materials, however, you risk being noted in default and there being no case conference - because you ex will be getting the Order he wants without any input from you. This is not what you want.

Normally a case conference will be held on the same day as a first appearance, after both parties file their confirmations indicating they are ready for the conference to go ahead. However, other posters on this forum have indicated this may not be universal across the province.

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As well, when filing a cross-motion for child support, part of my question was do I do that in response to the motion to change for child support...or would it be a completely separate issue.
Hopefully everything you want will be included in your Form 15B: response to motion to change. If it cannot, then you will need a new application to deal with it.
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Old 08-10-2012, 06:52 PM
Soccermom Soccermom is offline
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Sorry....messed up first response.

Last edited by Soccermom; 08-10-2012 at 06:58 PM.
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Old 08-10-2012, 06:54 PM
Soccermom Soccermom is offline
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Thank you OrleansLawyer

The previous order was for bio child only. Can you clarify what you mean by my success depending on the wording of the motion? Do you mean the original motion for child support or the motion to change?

I have until Tuesday to get my papers in order and file at a courthouse 3 hours away. My concern is whether or not to include pertinent info about non-bio child in my response to the motion or file a new motion separately. I have read that judges get irate if someone makes a motion before the case conference that is considered a non-emergency.

Is it reasonable that I file an Affidavit with my response, indicating the ex's role with both children, our verbal agreement about support and prior history with the hopes the judge will, at the very least, advise me what to do next?

Thank you.
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Old 08-14-2012, 05:34 PM
OrleansLawyer OrleansLawyer is offline
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Can you clarify what you mean by my success depending on the wording of the motion? Do you mean the original motion for child support or the motion to change?
My apologies - I meant the wording of the original Order. A Motion to Change is restricted to dealing with the matter as set out in what you are changing. For example, if it said "child support", you may be able to change. But if the wording is "child support for XXX", then you may be barred from including child support for YYY.

Quote:
judges get irate if someone makes a motion before the case conference that is considered a non-emergency.
For clarity: A Motion to Change is not a motion, per se; it is an originating document, starting whole new proceedings. Once you start things (whether with an application or motion to change) then you cannot bring a motion unless it is deemed urgent prior to the case conference.

Quote:
Is it reasonable that I file an Affidavit with my response, indicating the ex's role with both children, our verbal agreement about support and prior history with the hopes the judge will, at the very least, advise me what to do next?
You could file an affidavit but why not include the pertinent details as part of your facts in the response to motion to change?

Quote:
My concern is whether or not to include pertinent info about non-bio child in my response to the motion or file a new motion separately.
You can't get what you don't ask for. If you can afford to, consult a lawyer about it; otherwise, ask and hope. If it is tossed out, start a new application on that issue.
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Old 08-16-2012, 12:01 AM
Soccermom Soccermom is offline
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Thank you again, OrleansLawyer! Unfortunately I had to file my response before your post, but I think I pretty much did what you stated.

I responded with all the appropriate forms and then provided a history of the relationship with both children in the affidavit and clearly stated what I was requesting the court to do (if permissible, of course). I figured the judge would advise if I had to make a separate application for non-bio child's support).

This has been a very stressful experience and I realize it's only the beginning. I've found this website invaluable and truly appreciate your assistance and being able to read the experiences of other posters. I will update my post when I have new info, in the hope that it may help someone else.

Thanks again!
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