Loophole in The CS System?

[Joaquim4985]

Briefly, this is what happened to me when I tried to get my ex-wife to start supporting the kids she NEVER sees.

I served her with papers to have her start paying child support since our kids live with me full time and she has no interest in seeing or having the kids in her custody at any time even though in our SA we were to have 50/50 custody.

FCD was scheduled. I never received any kind of response from her within the 30 days prior. I attended the MIP. She did not attend her MIP. I showed up for our FCD. 5 minutes before court opened, a lawyer called out my name and asked me to go into a conference room. Turns out he was representing my ex. Informed me she is filing for divorce and handed me the application. Told me FC will have to kick the CS file up to SCJ. He took me into the court room, told the judge my ex was filing for divorce in SCJ. Judge said sorry I cannot hear anything on the CS issue. Have a nice day.

I responded to the application given to me that day within the 30 days by bringing a letter to my ex's lawyer. I agreed to everything in the application thinking let's get this over with.

Well that was at the end of May. Since then I have heard nothing, received nothing...no letters, no court date...nothing. Cannot go for CS because the case is in SCJ. Just kinda stuck in limbo until my ex decides to proceed with the divorce which she has no intention of doing because she knows she will owe me CS. I have spoken to her lawyer and his response has been I will let you know when I hear something from my client.

How do I get this moving if she isn't. I have had the kids now for 3 years. My daughter is no longer a minor but my son is. My ex does not spend time with either child, pays for nothing for them and rarely talks to either of them by her own choice.

There are lot more details but these are the key facts.

Any advice will be appreciated.

[arabian]

I don't understand why you aren't proceeding with filing for divorce.

[Tayken]

Briefly, this is what happened to me when I tried to get my ex-wife to start supporting the kids she NEVER sees.

I served her with papers to have her start paying child support since our kids live with me full time and she has no interest in seeing or having the kids in her custody at any time even though in our SA we were to have 50/50 custody.

FCD was scheduled. I never received any kind of response from her within the 30 days prior. I attended the MIP. She did not attend her MIP. I showed up for our FCD. 5 minutes before court opened, a lawyer called out my name and asked me to go into a conference room. Turns out he was representing my ex. Informed me she is filing for divorce and handed me the application. Told me FC will have to kick the CS file up to SCJ. He took me into the court room, told the judge my ex was filing for divorce in SCJ. Judge said sorry I cannot hear anything on the CS issue. Have a nice day.

I responded to the application given to me that day within the 30 days by bringing a letter to my ex's lawyer. I agreed to everything in the application thinking let's get this over with.

Well that was at the end of May. Since then I have heard nothing, received nothing...no letters, no court date...nothing. Cannot go for CS because the case is in SCJ. Just kinda stuck in limbo until my ex decides to proceed with the divorce which she has no intention of doing because she knows she will owe me CS. I have spoken to her lawyer and his response has been I will let you know when I hear something from my client.

How do I get this moving if she isn't. I have had the kids now for 3 years. My daughter is no longer a minor but my son is. My ex does not spend time with either child, pays for nothing for them and rarely talks to either of them by her own choice.

There are lot more details but these are the key facts.

Any advice will be appreciated.

SCJ - Superior Court of Justice
FCD - ???
FC - ???

Some advice would be not to use so many acronyms.

[Mess]

Ditto, also wondering what province you are in.

[Joaquim4985]

FCD = First Court Date
FC = Family court

Sorry.

[Joaquim4985]

She has already filed

[Joaquim4985]

I am in Ontario

[Tayken]

Briefly, this is what happened to me when I tried to get my ex-wife to start supporting the kids she NEVER sees.

So you are the primary parent. What "happened" before the court is really irrelevant. What happens with the kids, who cares for them and if the parent is involved in their lives is what the court considers.

I served her with papers to have her start paying child support since our kids live with me full time and she has no interest in seeing or having the kids in her custody at any time even though in our SA we were to have 50/50 custody.

What you are claiming is a material change in circumstance. What "papers" did you serve her with? An Offer to Settle in accordance with Rule 18 of the Family Law Rules (FLR)? Or did you start the court proceedings with this service?

FCD was scheduled. I never received any kind of response from her within the 30 days prior. I attended the MIP. She did not attend her MIP. I showed up for our FCD (first court date). 5 minutes before court opened, a lawyer called out my name and asked me to go into a conference room.

At 5 minutes prior to the conference start you were not obligated to meet with the lawyer. If this is the first notice of a solicitor representing the other party they should have given notice well in advance.

Turns out he was representing my ex. Informed me she is filing for divorce and handed me the application.

But, you were at court, someone would have had to file something to get to the first court date. Did you file a request to the court for a material change in circumstance.

Divorce really is irrelevant. It is just a matter of procedure. You could have filed for divorce too. After the time frames you have provided it is only logical to file for a divorce.

Told me FC will have to kick the CS file up to SCJ. He took me into the court room, told the judge my ex was filing for divorce in SCJ. Judge said sorry I cannot hear anything on the CS issue. Have a nice day.

That is how it works. Divorce is a federal action and the Ontario Court of Justice does not have jurisdiction of the matter if an application is filed with the Superior Court of Justice, Family Law. This is the only court that can deal with the "divorce".

It is no big deal. You should have originally filed your materials with the superior court. If you have a lawyer they should have advised you of such as well.

I responded to the application given to me that day within the 30 days by bringing a letter to my ex's lawyer. I agreed to everything in the application thinking let's get this over with.

Well that was at the end of May. Since then I have heard nothing, received nothing...no letters, no court date...nothing. Cannot go for CS because the case is in SCJ.

On application you need to go to a Case Conference prior to bringing forward a motion for relief on CS. So, call the court house and book a case conference yourself and notify the other party's attorney. You could in the laternative contact the lawyer and ask them for their available times for a Case Conference prior to doing this. It is the more polite thing to do.

Just kinda stuck in limbo until my ex decides to proceed with the divorce which she has no intention of doing because she knows she will owe me CS. I have spoken to her lawyer and his response has been I will let you know when I hear something from my client.

Call the court house and get a Case Conference setup. You can do this as the respondent. You don't have to wait on her lawyer to do it. Furthermore, at a case conference a judge CAN and WILL order CS to be paid. It is one of the few things that a judge can really do at a case conference.

How do I get this moving if she isn't. I have had the kids now for 3 years. My daughter is no longer a minor but my son is. My ex does not spend time with either child, pays for nothing for them and rarely talks to either of them by her own choice.

There are lot more details but these are the key facts.

Any advice will be appreciated.

Call the court house, give them the file number and ask for the avalible dates for a Case Conference. Schedule the Case Conference and notify the other lawyer of the time and date. Also, you should read the requirements in the Family Law Rules for materials to be filed for a Case Conference in the Family Law Rules (RULE 17: CONFERENCES):

Courts of Justice Act - O. Reg. 114/99

Also, you should probably seek legal counsel yourself to help you understand the Rules that govern conduct before the courts if you have not already.

Good Luck!
Tayken

[Joaquim4985]

So you are the primary parent. What "happened" before the court is really irrelevant. What happens with the kids, who cares for them and if the parent is involved in their lives is what the court considers.

Yes, I am the primary parent. The kids live with me. However, the sep. aggreement stipulated 50/50. In her response she claimed the kids are with her half the time which is false.

What you are claiming is a material change in circumstance. What "papers" did you serve her with? An Offer to Settle in accordance with Rule 18 of the Family Law Rules (FLR)? Or did you start the court proceedings with this service?

I served her with OCJ Form 8: Application

At 5 minutes prior to the conference start you were not obligated to meet with the lawyer. If this is the first notice of a solicitor representing the other party they should have given notice well in advance.

I received a letter from her lawyer and my ex's OCJ Form 10: Answer via mail 4 days prior to my first court date.

But, you were at court, someone would have had to file something to get to the first court date. Did you file a request to the court for a material change in circumstance.

When I filed, the court staff put an FCD on my application.

Divorce really is irrelevant. It is just a matter of procedure. You could have filed for divorce too. After the time frames you have provided it is only logical to file for a divorce.



That is how it works. Divorce is a federal action and the Ontario Court of Justice does not have jurisdiction of the matter if an application is filed with the Superior Court of Justice, Family Law. This is the only court that can deal with the "divorce".


It is no big deal. You should have originally filed your materials with the superior court. If you have a lawyer they should have advised you of such as well.

I was not filing for divorce. I only wanted my ex to start living up to her resposibility of providing for her kids and living up to our SA.

On application you need to go to a Case Conference prior to bringing forward a motion for relief on CS. So, call the court house and book a case conference yourself and notify the other party's attorney. You could in the laternative contact the lawyer and ask them for their available times for a Case Conference prior to doing this. It is the more polite thing to do.



Call the court house and get a Case Conference setup. You can do this as the respondent. You don't have to wait on her lawyer to do it. Furthermore, at a case conference a judge CAN and WILL order CS to be paid. It is one of the few things that a judge can really do at a case conference.



Call the court house, give them the file number and ask for the avalible dates for a Case Conference. Schedule the Case Conference and notify the other lawyer of the time and date. Also, you should read the requirements in the Family Law Rules for materials to be filed for a Case Conference in the Family Law Rules (RULE 17: CONFERENCES):

Courts of Justice Act - O. Reg. 114/99

Also, you should probably seek legal counsel yourself to help you understand the Rules that govern conduct before the courts if you have not already.

Good Luck!
Tayken

Thank you very much Tayken. Exactly what I was looking for. Very succint. I will call the court house tomorrow.

[Mess]

It sounds like she filed for divorce at the last minute for the purpose of changing courts so there would be another delay. It will likely be several months before you can get a case conference date.

If I recall correctly I filed during the first week of September and the earliest date was mid-December. They may try some proceedural tricks or simply ask for a later date to delay even further.

[Tayken]

It sounds like she filed for divorce at the last minute for the purpose of changing courts so there would be another delay. It will likely be several months before you can get a case conference date.

If I recall correctly I filed during the first week of September and the earliest date was mid-December. They may try some proceedural tricks or simply ask for a later date to delay even further.

Excellent observation. It would be a tactic to file for divorce to move from the Provincial Court to Superior Court to generate a significant delay. Depending on the jurisdiction there can be incredible delays in getting to case conference as you have observed.

The best bet for the OP in this matter is to compile and serve Offers to Settle in accordance with Rule 18 of the Family Law Rules. My recommendation would be to make offers to settle that resolve all outstanding issues of custody, access, equalization and support.

That way the Offers to Settle are made well in advance of any Case Conference and should matters have to go on motion costs can be requested depending on the order that results from a motion. You can also request costs at a Case Conference or for the costs to be held and to be determined by the motions judge.

Good Luck!
Tayken

[HammerDad]

I hope OP is journalling their time with the kids. Unless the OP is able to prove via calendar, journal etc., it will be a he said/she said matter.

Bring detailed proof. It will make the case easier.

[Joaquim4985]

@Mess

I believe that is exactly what her lawyer's plan was. I don't believe she actually retained a lawyer. Just paid him to advise her and make this move for her. Thereby avoiding CS for the time being.

@HammerDad

I do my best to document everything. Every excuse she comes up for not seeing her kids is written in my daytimer. Not sure how affective that will be but at least is something.

@Tayken

Should I send Offers to Settle before I call to schedule a Case Conference?

[OrleansLawyer]

If she is not paying support then you should have filed Support Deduction Orders with FRO. This will be useful later.

Bring an urgent motion - which can be brought before a case conference - for interim without prejudice child support.