Court procedure question

[involveddad75]

Iceberg I think you already know the answer to this.
Nothing happens besides procedural orders at a case conference. Every else needs to be on consent, unless there is a real urgent life threatening matter.

That said any temporary order can be appealed within 7 days. Unless on consent.

[involveddad75]

all conferences are the same, that is they are conferences. So not orders like that can't not be made during any conference be it case, settlement, or trial conference unless consented to.

Now if the other side brings a motion for interim custody then your arguement will be to look at the case
Winn V winn 2008 ont s.c.j. (variation of interim custody with an OCL report).
Basically you are close to trial and any variation isn't in the best interests of the children given trial is so close.

[HappyDays]

^^^ agreed.

Every case is different, as there's no set time. It's not unusual to have more than one of each conference.

Your custody concern wouldn't happen at a conference, but anyone can bring that up in motions. Usually there are multiple motions before trial as well.

[involveddad75]

I wouldn't refuse a conference, they are in the procedure and are efforts by the courts to settle the matter before trial.
If you refuse (which I'm not actually sure you can) costs if you lost or won would come into play, and the fact that you weren't engaged in trying to settle the matter before trial will hurt you whether you won or lost at trial.

[dad2bandm]

Sorry, I may have lost track of where things currently stand, with your situation, but does your child not still currently attend school, in your area, and were her doctor/care areas, not closer to you, right now?

Why would your ex get interim sole custody then - didn't your ex move further away? In the interim, do not settle for anything close to "sole custody" for her.

[Tayken]

Thanks

So are case, settlement, trial etc conferences a must or can one party refuse any of them if they are pushing for trial? Like theres a thread here a case conference was skipped straight to TMC but no kids involved so I need to know what and why can be rejected

Here is the case link http://www.ottawadivorce.com/forum/f...ght-tmc-15193/

Iceberg,

This is where a lawyer would really be helpful in your matters. I realize you do not have the personal resources and/or access to legal aid to assist you. This is why I respond as best I can with advice... Because there are just too many people stuck in your situation.

Case Conferences are mandatory per the Family Law Rules prior to motion and the next phases of the procedural steps. There is one exception to the rule and that is in "urgent" situations of dire need (emergency motions). Your matter in my personal opinion is not "urgent" based on what I have read from you.

The general consensus from professionals I know is that from Application to trial is about 2-3 years in southern Ontario generally. The only time it moves faster is if you get thrown on the "emergency trial list". This, like an "emergency motion" has requirements to qualify for. If you take a jurisdiction like Brampton, the trial list for the different hearing sessions is VERY SMALL in general. I have never seen more than 2-3 family law trials happening at once in that court house and I regularly check the trial schedule posting in that court house.

Brampton being possibly the LARGEST family law court in our country is only hearing in 2 sessions per year at most say 6 family law trials possibly. (Again, I can't verify how many actually happen I am just going by the print outs I review on the listing boards down at the bottom of the stairs by the main entrance). It could be more but, it wouldn't be more than 10 a year in my personal opinion.

Only 10% of family law matters go to court and only about 2% of those matters make it to TRIAL. (It may even be smaller than 2%.)

Unless there is significant conflict matters generally don't fast-track to trail. If they do... Don't be proud of that... It means that there is a problem and if children are involved... They are at risk of harm and/or abuse. Look at how long it took some people to get their matter to trial on this very forum.

Although everyone wants to believe that their matter is "the most conflicted" or the "most in need of a trial"... Only the most serious matters ever make it to trial.

Good Luck!
Tayken

[DowntroddenDad]

The school is here and doctor is at least 2x closer from my place but she is challenging that and included a lot of things that are not true which I can prove to be a lie. I hope her motion for interim custody will be declined so that is why I asked if a temporary decision can be made other than at motion.

Second problem I face is, it is possible that the Judge may say let the child stay as is and basically I get full custody. I don't want full custody nor do I want her to get it. Because it is not best for the kid to break status quo, must find a solution to continue shared custody. Tough situation.

Please, please, please listen to us. Do not attempt to prove she lied. You then come accross as confrontational and not working in the interests of shared parenting. Feel free to prove and continue to reinforce that your residence is closer to her schools and doctors, but leave it at that.

As to custody, if by some chance, you are awarded sole custody(which likely won't happen), that doesn't mean you can't include your child's mother in her, life, it simply means that you get to make all the major decisions. On paper I have no set access to my kids. But I have joint custody, as in I have the ability to make decisions, or make joint decisions with my ex about our kids. (I have liberal access, the kids can come and go as they please).

[SadAndTired]

The general consensus from professionals I know is that from Application to trial is about 2-3 years in southern Ontario generally.

This may very well be true but in the Niagara Region, ex filed in October 2012. Case conference in December '12. Settlement conference in February '13. (Interim support set on consent at SC.)

Trial date set last week for the end of September 2013.

All in all, less than a year.

[Tayken]

This may very well be true but in the Niagara Region, ex filed in October 2012. Case conference in December '12. Settlement conference in February '13. (Interim support set on consent at SC.)

Trial date set last week for the end of September 2013.

All in all, less than a year.

It all depends on the level of conflict. Also, just because you are on the trial list doesn't mean that you will get called to trial. Remember that. The trial coordinator may decide to move matters to the next sitting. Happens a lot. You really don't know if you are going to "trial" until the Trial Management Conference happens.

Niagara is a small Family Law jurisdiction but, it was (or still is?) the home jurisdiction I believe for the Honourable Mr. Justice Quinn. I haven't checked up in that jurisdiction for a while as I haven't seen anything from Justice Quinn for a while coming out of that court house.

Well, here is why:

The Honourable Robert B. Reid, a lawyer with Lancaster, Brooks & Welch LLP in St. Catharines, is appointed a Judge of the Ontario Superior Court of Justice (Hamilton) to replace Mr. Justice J.W. Quinn, who elected to become a supernumerary judge as of December 19, 2010 and whose position was transferred to Hamilton.

Is the date scheduled in September for "purge court"? Also, it is odd that a trial would be set without a TMC being scheduled prior to the sitting hearing. It happens though... You could go to the TMC the day before you are walking into a court room.

It sounds like you are on the "fast track" (per the Family Law Rules). If you and the other party are so far apart on your positions often the only way to resolve the issue is to order a fast track per the Rules and move you faster through the court. The age of the children also are a factor to consider if someone is being fast tracked. Very few cases are fast tracked... Only the truly most highly conflicted cases get fast tracked generally. Stuff a-la "Bruni v. Bruni"...

Bruni v. Bruni, 2010 ONSC 6568 (CanLII)
Date: 2010-11-29
Docket: 384/07
URL: CanLII - 2010 ONSC 6568 (CanLII)
Citation: Bruni v. Bruni, 2010 ONSC 6568 (CanLII)

At one point in the trial, I asked Catherine: “If you could push a button and make Larry disappear from the face of the earth, would you push it?” Her I-just-won-a-lottery smile implied the answer that I expected.

Still the best case law to come out of that area!

Good Luck!
Tayken

[SadAndTired]

I don't really know all the answers Tayken. I speak with my lawyer tomorrow at 3 to clarify some of my questions.

You are right in that the Trial Management Conference was last week and that is when they scheduled the trial. It is odd because ex and I were so very close to settling (even on the big issue that the trial is about) but it all fell apart about a very small issue.

I don't even know why were are going to trial considering almost all of the issues are agreed upon or already consented to. That is one of the things I plan to clarify with the lawyer. We are certainly not highly conflicted and there has been no request for fast tracking of any sort.

Ex is the one who filed. I guess he has to be the one to revoke (?) the trial?

Edited to add - there is no custody/access issues at trial so I don't think the kids' ages mean anything. All of the issues regard money.

[Tayken]

I don't really know all the answers Tayken. I speak with my lawyer tomorrow at 3 to clarify some of my questions.

Per your point below... Ask your lawyer if it is because the justice who set the matter down for trial is possibly trying to get both parties to settle? I know, sounds odd but, some justices do this to drive settlement. You wouldn't be surprised as to HOW MANY matters settle on the courtroom door of purge court. Piles and piles of them.

Your lawyer will know the court house procedures of the justices better than anyone as hopefully the lawyer has been before most (if not all) the justices in the court house. So they can give a better perspective regarding the "judicial style".

You are right in that the Trial Management Conference was last week and that is when they scheduled the trial. It is odd because ex and I were so very close to settling (even on the big issue that the trial is about) but it all fell apart about a very small issue.

I agree that is odd. But, see my comment above and a possible question to ask your lawyer tomorrow at 3PM. Trials are ugly, awful and damn expensive and very often end with costs awards. If someone is being silly this could be a ruse to drive settlement by the justice? I have seen them do this. They will state things like "there is a justice waiting in the wings to hear this trial tomorrow" etc... Some times, and WD can attest to that, they are not bluffing... But, your matter does not sound like a case that has a lot of "wings" from what you have described.

I don't even know why were are going to trial considering almost all of the issues are agreed upon or already consented to. That is one of the things I plan to clarify with the lawyer. We are certainly not highly conflicted and there has been no request for fast tracking of any sort.

The best advice I can offer you is to make a complete offer to settle on all the outstanding issues as soon as possible. You may have to make some compromises but, weigh the long term impact of what a trial will do to everyone involved... Trials are ugly stuff.

Ex is the one who filed. I guess he has to be the one to revoke (?) the trial?

Nope. Either party can withdraw but, then the withdrawing party has to pay costs. (See the Family Law Rules for more details.) You can both agree on 14B (Consent) to remove yourselves from the trial list and to jointly withdraw with no costs to either party. But, be forewarned the justice hearing the matter will want to know how the outstanding dispute will be resolved if not already done by agreement for all outstanding issues. For example, if not resolved, the justice will want to know possibly that you are going to arbitration for example.

Edited to add - there is no custody/access issues at trial so I don't think the kids' ages mean anything. All of the issues regard money.

When you say money there are two categories. Equalization and then there is support (child support and spousal support).

Spousal support is a nasty one as it often requires trial if there is a dispute. Entitlement has to be established at trial on the hearing of evidence if there isn't consent. The SS Guidelines are a mess and are truly "guide lines". So it often requires trials (or long motion hearings) to resolve.

Surprised that the matter wasn't sent to a long motion hearing on the minor detail in dispute. Or even a viva voce hearing to resolve the matter (mini-trial). They could have even ordered it preemptive on both parties etc...

Good Luck!
Tayken

[Tayken]

I understand. But she wrote in her affidavit that I never visited the kid after released from hospital for 3 weeks. That would be a big deal if true.

Just to help you understand the concept of RELEVANCE it is not "a big deal if true" either. Custody does not swing and sway on a 3 week time period just to clarify it for you.

For example, many affidavits contain statements like that the parent cut the children's fingernails etc... I can tell you I have personally witnessed justices SCREAMING at the top of their lungs at litigants who bring this kind of irrelevant nonsense before the family court. They also SCREAM loud enough that lawyers start to pile in and watch.

To put it in perspective... Think of the insulting French guys in Monty Python's the Holy Grail:

Your mother was a hamster and your father smelt of elderberries! - YouTube

Your mother was a hamster and your father smelt of elderberries!

To put it simply, justices view these kind of allegations as petty. Just as petty some times as telling someone that their mother was a hamster and their father smelt of elderberries!

She made a few more ugly accusations. I cant let it go the Judge may assume it is true.

It is so irrelivant I caution you on over-investing on the irrelivant elements like this. This is where a lawyer would help you significantly. Relevance is the HARDEST concept in law to understand - even for lawyers. In law school I am told it is the hardest course to take, teach and pass.

I have no intention to attack but gotta defend in the best way possible. If I win the first motion then things will look ugly for her. She will probably start uglier accusation (involve cas) OR make a settlement.

I said it before, I will say it again.

Any litigant going to court to "win" will LOSE. Family Law is not about winning and losing. There are only losers in Family Law... Your best interests are not the test of evidence... Rule 24 of the Children's Law Reform Act of Ontario is... The children are the primary focus of determining custody and access.

There is nothing "ugly" about this allegation other than it is quite possibly not worth the time you are investing in responding to it and the anxiety it is possibly creating for you.

I should really choose words better when I type. IF I "win", chances are joint custody remains but physical would not.

Custody does not equate to access. You can have 50% access and still not be the custodial parent. You really need to seperate the concepts of Custody and Access. Access does not equate to custody and custody does not equate to access.

I spoke to a couple lawyer who will not represent me, just for advice. I hid nothing from them. Told them all my goods and bads. Anxiety, $$$, my successful parenting...all. They said if I fought for full physical custody my chances are better than my ex's. (Remember, that's not my goal, if this happens then my ex is welcome to find a way to continue shared custody)

They will tell you anything. Especially when not retained on a file.

Liberal and generous access means EOW screwjob unless you live close enough but still the other parent has full physical custody.

What is "full physical custody"? Honestly.

There is Custody (decision making) and Access (time spent with either parent). You seem to be confused with the concept of primary residence which looses all luster when there is equal access.

Full joint custody with equal access on a 50-50 basis based on a 2-2-5-5 access schedule. (Commit that to memory and say it every day to yourself in the mirror.)

@sad and tired: In my case even 6 months is too long. Any interim decision will most likely be permanent. A lawyer did tell me this: If the judge grants interim custody to your ex, ask the Judge for it to be valid only until next conference.......

Interim means what it means. In the intern... It isn't forever. You are mixing up the idea of "status quo" but, no justice is going to disrupt equal access you now have (which is the status quo!) because well, you supposedly didn't go to doctors appointments for 3 weeks. You are really worried about nothing. Or because you didn't cut your children's finger nails and toe nails. THIS IS ALL IRRELEVANT!

Good Luck!
Tayken

[involveddad75]

Iceberg,
The general consensus from professionals I know is that from Application to trial is about 2-3 years in southern Ontario generally. The only time it moves faster is if you get thrown on the "emergency trial list". This, like an "emergency motion" has requirements to qualify for. If you take a jurisdiction like Brampton, the trial list for the different hearing sessions is VERY SMALL in general. I have never seen more than 2-3 family law trials happening at once in that court house and I regularly check the trial schedule posting in that court house.
Tayken

I would add another reason for Fast Tracking your case is if the parents have separated and moved to two separate towns and a child is close to starting school. If this case their is an urgency in that a decision must be made as to where the children will attend. and the only right place for that is a long motion or trial. I would personally argue that trial is the only place for it, but that is me. Someone who went through trial.

[Tayken]

Thanks, it helps to read optimistic advice and opinion. One thing I have to disagree is when you say interim only means interim. In most situations interim means permanent. Even Judge H. Brownstone says it in his book "tug of war". So for example, if in 2 months from now my ex gets temporary full custody during our motion, by the time trial comes it will be a solid status quo. Not impossible to change it but I have been warned about interim orders.

You admire WD so much... His case law and the others linked by Reflex on his matter and cited are all examples of why "status quo" obtained through false allegations and LIES are not "the status quo". I do question if you have truly read his case law... Really read it and understood it.

MANIPULATION

393. Under questioning Mr. Drouillard acknowledged a couple “truisms” well known among lawyers, judges, social workers – and frequently litigants themselves.

394. The first is that “status quo” is important. Perhaps the first piece of legal advice separated parents get is that temporary arrangements often come to be self-perpetuating. That’s why parties work so hard to stake out their turf; create patterns; and obtain favourable temporary (or even temporary-temporary) orders.

395. The second truism relates to the simplistic correlation between “joint custody” and “conflict”. Although obviously a gross oversimplification, many parents come to perceive that if someone wants joint custody they have to be able to get along with their estranged partner. The obvious corollary: if you can’t get along; if you can’t communicate; if there’s lots of conflict, then joint custody is unlikely to be imposed.

...

418. Creating a favourable status quo through falsehood and misrepresentation is not just a matter of litigation strategy: It is often tantamount to child abuse. It goes to the heart of “best interests” considerations; Parental judgment; The ability to sacrifice self-interest for the sake of the child; Awareness of the child’s need to have maximum contact with both parents.

419. If past behaviour is a predictor of the future, assessors and courts have an obligation to address – and seriously sanction – common and predictable strategic behaviours intended to create an inappropriate status quo.

You have nothing to worry about. If a false status quo is set on a motion, at trial it will be changed. But, the main differentiating factor between you and say someone like WD is that WD understands the core concept of RELEVANCE. You I suspect do not... Hence the quote to help you understand the relevance of falsely obtained status quo and the courts view of it... That it is CHILD ABUSE to do so.

So my main fear is school. The child missed over 80% of kindergarten mainly due to being sick. Ex already blamed me for it and said I am incompetent when it comes to education and it is my fault the kid missed so much school

You ex could say you smell of elderberries. Just because she swore it to an affidavit as "the truth" doesn't mean it is "the truth".

Mustapic v. Capin, 2012 ONSC 3208 (CanLII)
Date: 2012-06-08
Docket: FS-04-052373-01
URL: CanLII - 2012 ONSC 3208 (CanLII)
Citation: Mustapic v. Capin, 2012 ONSC 3208 (CanLII)

[19] How this family actually got to the place that I have heard about since May, 2011, only they will know; and they only know through their unique and individual perspectives. As Catherine Gildiner wrote in the preface to her book, After the Falls, (Toronto: Alfred A. Knopf Canada, 2009):

Memory is a tricky business. No two people remember things the same way. Memory is not a recording device; it is the brain’s way of allowing us to select moments in order to interpret our pasts. All the images on file in our brains pass through elaborate screens of unconscious needs and emerge as memories.

To that quote I would add that the filtering process we go through helps us “save” ourselves, so that we can present ourselves in the best light possible. It is only through years of often painful therapy that we can understand how much we may have filtered our own experiences to save ourselves. There is nothing insidious or wrong about this process; it is part of the human brain’s brilliance. It is not someone else telling us we are “wrong” in our memory that gives us insight; it is our own reflecting, with professional assistance, that leads us to that level of awareness and understanding about ourselves.

[20] The mother and father before me have very different memories of what happened in their 11 years of cohabitation and their 11 years post-separation. So too do their children have very different memories. As I just set out, there is nothing surprising or unusual about that fact. What is sad for the Court is the amount of time, money, energy, and emotional angst, that these parties have engaged in to convince themselves, the other party, the children, their friends, the professionals involved, and now the Court, that their truth is the “real truth”; that their version of events is what actually happened.

[21] Dr. Clive Chamberlain, a renowned psychiatrist who has specialized in children and adolescent issues for over 40 years testified before me on an alienation case several years ago. When he was asked about how the parties got to the place they were at trial, and who was to blame, I always recall his words, “That’s a bit of a mug’s game.” That expression means “a futile or unprofitable endeavour.” In other words, “Judge, don’t waste your time, you’ll never figure it out to anyone’s complete satisfaction. Let’s deal with what we have in front of us now.”

[22] It is for the above reasons and several others that this decision will not be deciding whose version of the “truth” is more accurate. In my view, such an attempt to microscopically look at 22 years of family dynamics would be a waste of time, would make no one happy with the result, but most importantly, would not in any way help the M. children, most of all L., who is the subject of the trial before me.

[23] I do not intend to summarize all of the evidence I heard and read at this trial in search for the elusive “truth” of this family’s history. I have indeed considered all of the evidence which the parties ably marshalled at the trial, in arriving at this decision.

Honestly, I can't put it any simpler than that to demonstrate that you shouldn't be anxious. You can take it or leave it... But, being in a state of constant anxiety is not good for your health and I genuinely worry for your health and well being. Going down the path that you are looking for the "elusive "truth"" will not resolve anything... More than likely it will be ignored by a justice, as Justice Mossip plainly states in the above quote...

Family Law is about the best interests of the children... not any one parent's version of "the truth".

Good Luck!
Tayken

[involveddad75]

Custody does not equate to access. You can have 50% access and still not be the custodial parent. You really need to seperate the concepts of Custody and Access. Access does not equate to custody and custody does not equate to access.
Tayken

I would also add that I have heard of a case (over 20 years ago) where one parent got sole custody, but because of alienation and the age of the children, she had zero access and hasn't seen her children in over 20 years.
And before Tayken asks, no I won't cite caselaw. Ask I know this person and won't give out that information.

But generally if you focus on section 24 in all your materials you'll do better than most.

If your interested look up a post I did on responding template which allows you to respond to affidavits quickly without emotion.
There are variations of cause Tayken has probably written a good one as well.