Filing a Motion: I'm confused by the steps

[adolcd]

Hey Everyone,

Unfortunately my ex-wife has informed me on May 28 via phone call that she purchased a home (august move in) about 40KM away, this was after she advised she put off any home purchase until next year, and after i just moved near her in December. Since December my access has doubled which has been wonderful and now I feel I'm actually a joint parent and not a weekend dad.

Obviously this move means our daughters will have to attend new schools in the fall (it'll be the oldest's third school in as many years) as well as either I pick up and move near them or our daughters are stuck in long car rides back and forth. The move would increase my cost of living roughly $3000 a year. I do not believe our daughters should have to do endure hour plus commutes just to visit their parents weekly.

I advised her via email that I do not consent with the move and was basically told that she is moving and that's that. Her job is in Mississauga as far as I know her boyfriends job is here as well, in addition her parents live about 9 minutes up the street from me. She wanted to buy a house and found one she could afford, that is the only reason she is moving.

I spoke with a lawyer via a work assistance program and he advised that I will need to file a motion to prevent her from making the move. Not a problem, I've downloaded the form as well as the affidavit and both are filled out with the necessary exhibits. I understand i also need the confirmation of motion and the affidavit of service form.

But in reading the steps to actually file I get confused. Can I call the courthouse and get a motion date? If so, is it then I'm provided with a court file number? Can I serve my ex-wife myself?

I guess what I'm looking for is Step 1, Step 2, etc.

Any help is appreciated.

[Qrious]

(If you're in Ontario). Have you looked through this yet? This might help:

http://www.attorneygeneral.jus.gov.o.../fc/part_8.pdf

I wish you luck.

[SadAndTired]

My understanding of the process is that you must file an application and have your case conference before you can file any motion.

Correct me if I am wrong board members!

Once she has moved, it will be much harder for you to change it. I would find a lawyer right away and go in for a free consult. Kain and Ball in Mississauga is a very reputable firm that offers free consults.

[adolcd]

Thanks everyone for your quick replies, I'll answer any feedback as best I can below.

(If you're in Ontario). Have you looked through this yet? This might help:

http://www.attorneygeneral.jus.gov.o.../fc/part_8.pdf

I wish you luck.

Yes I am in Ontario and have looked through all parts of the guide to procedures in family court. I tried calling Brampton Superior Court (as our divorce order is from there) but have not been able to get through to actually request a motion date.

I am thinking to move closer to my ex to keep shared custody but I want her to sign some documents that she cannot move that easily.

What is your current agreement? Is it legal? What is your access like?

You moved closer to your ex to spend more time with your kids. The Judge will use that as a good thing for you. However, there are many factors to decide best interest of the children.

File a motion to prevent the kids from moving and write down the list why is it better for the kids to stay than to go. If you kept a journal with your involvement with the kids, and have some witnesses, it would help plenty.

Hindsight being what it is I should have filed motions for this once I moved, but I had some issues selling my old place that took up too much of my time.

We are joint custody parents and since I moved in December from Scarborough I'm roughly at 45% access, specifically from pick up at school Thursday to Sunday evening. I have read that there are different methods to count percent of access though. There are also times outside our access periods were we ask each other to look after our children.

As to the legality I'm not 100% to be honest, the lawyer I spoke with stated that because my divorce order only orders that we be divorced but there's nothing pertaining to support/custody.

My understanding of the process is that you must file an application and have your case conference before you can file any motion.

Correct me if I am wrong board members!

Once she has moved, it will be much harder for you to change it. I would find a lawyer right away and go in for a free consult. Kain and Ball in Mississauga is a very reputable firm that offers free consults.

I read about the case conference part in the document Qrious linked to, however I've found other documents stating this isn't necessary due to the fact that we do not agree on this matter.

Obviously I want this to be filed quickly so I can show my ex-wife I'm serious about this and also to see if she can get out of the sale of her new home. I already advised her to contact her real estate agent to see if she's within her cooling off period. However she's trying to push through on this.

A lawyer would be great, but due to factors from selling my place in Scarborough, I honestly can't afford it right now. Hence me going solo on this.

[adolcd]

Thanks everyone for your quick replies, I'll answer any feedback as best I can below.

(If you're in Ontario). Have you looked through this yet? This might help:

http://www.attorneygeneral.jus.gov.o.../fc/part_8.pdf

I wish you luck.

Yes I am in Ontario and have looked through all parts of the guide to procedures in family court. I tried calling Brampton Superior Court (as our divorce order is from there) but have not been able to get through to actually request a motion date.

I am thinking to move closer to my ex to keep shared custody but I want her to sign some documents that she cannot move that easily.

What is your current agreement? Is it legal? What is your access like?

You moved closer to your ex to spend more time with your kids. The Judge will use that as a good thing for you. However, there are many factors to decide best interest of the children.

File a motion to prevent the kids from moving and write down the list why is it better for the kids to stay than to go. If you kept a journal with your involvement with the kids, and have some witnesses, it would help plenty.

Hindsight being what it is I should have filed motions for this once I moved, but I had some issues selling my old place that took up too much of my time.

We are joint custody parents and since I moved in December from Scarborough I'm roughly at 45% access, specifically from pick up at school Thursday to Sunday evening. I have read that there are different methods to count percent of access though. There are also times outside our access periods were we ask each other to look after our children.

As to the legality I'm not 100% to be honest, the lawyer I spoke with stated that because my divorce order only orders that we be divorced but there's nothing pertaining to support/custody.

My understanding of the process is that you must file an application and have your case conference before you can file any motion.

Correct me if I am wrong board members!

Once she has moved, it will be much harder for you to change it. I would find a lawyer right away and go in for a free consult. Kain and Ball in Mississauga is a very reputable firm that offers free consults.

I read about the case conference part in the document Qrious linked to, however I've found other documents stating this isn't necessary due to the fact that we do not agree on this matter.

Obviously I want this to be filed quickly so I can show my ex-wife I'm serious about this and also to see if she can get out of the sale of her new home. I already advised her to contact her real estate agent to see if she's within her cooling off period. However she's trying to push through on this.

A lawyer would be great, but due to factors from selling my place in Scarborough, I honestly can't afford it right now. Hence me going solo on this.

[Mess]

First, be clear about something: You cannot get an order that prevents her from moving. SHE can move whereever on earth she wants. What you want is an order to prevent the children from being moved out of the current area. Primarily you are talking about the school district. This is essential to understand when you are wording your motion application and making your arguments and attaching factual information.

1. You are seeking that the children's primary residence remain in the current school district.
2. Since you live in the current school district, that means the primary residence will be with you. However, make sure you word this after point number one.
3. You support this with the following points: The children are established in the current district; they have friends here; they have activities here; list any recreational activities they have signed up for like music, sports, dance, etc.
4. Surely they attend their friend's birthday parties. State this and name names and the number of events. You have to SHOW that they have a connection to their current district.
5. Now, down the list, you note the travel time from your location.
6. Note that the mother works close to the current district and would be travelling here anyway each morning. You note that the mother could more easily bring the children to school in the current district than you could transport them to Lower Dogpatch or where she is moving to.

In short, make your points and put them in a logical sequence, with the primary points being the children's connection to the area, and secondary points being the logistics. Remember that this is all from the perspective of the children's best interests, and that you have to show facts, not just make claims.

Your conclusion of your argument is that the children's primary residence should remain in the current district and that you are ready and willing to provide them with a primary residence and to co-operate with the mother to facilitate generous access.

A suggested schedule would be that each parent pick up the children after school and drop them off at school, avoiding unnecessary travel to switch households. A 3/2/2 schedule would give you alternate weekends, with two consecutive days during the week, allowing the children to settle in but not spend excessive time away from either parent.

Dad: F/S/S W/T M/T
Mom: M/T F/S/S W/T

Put this all in an offer to settle to the mother, with "Without Prejudice" in bold letters at the top.

You will fill out a form 15 and form 15c describing the change you seek and the reasons. You file this at the court. You serve your ex. It will be special service so you will probably get a process server to do it and swear an affidavit. You file the service affidavit at the court.

You get a date for first appearance and file a 14c to confirm your attendance. Your ex will respond or not depending on how organized they are. At the first attendance, usually within a couple of weeks, you set the Case Conference date and possibly discuss a settlement with the DRO (Dispute Resolution Officer.) MAKE SURE you are organized and have all your documentation with you and all of your argument points in your head.

Be polite, dignified, unemotional, to the point, businesslike. Address the DRO, ignore your ex. It is not an opportunity for the two of you to argue.

Make sure you go to the Family Law Information Centre at the courthouse and get assistance with your forms. Feel free to ask questions from the clerks at the counter, and if you arrive fairly early, ask for Duty Counsel so you can ask some questions about how to fill out forms, how to file, how to service, etc. etc.

Always have a notebook with you and write down dates, times, the names of whatever DRO, Master, or Justice you are to meet with. Always ask what the next step should be, write it down, and make sure you follow up.

[SomeGuy]

My understanding of the process is that you must file an application and have your case conference before you can file any motion.

Correct me if I am wrong board members!

I have never had a case conference and she filed a motion. Didn't seem to raise any eyebrows but my lawyer seemed a bit confused that it occured.

[OrleansLawyer]

I have never had a case conference and she filed a motion.

Before a case conference, the motion either needs to be procedural or urgent.

my lawyer seemed a bit confused that it occured.

It is irregular.

You cannot get an order that prevents her from moving. SHE can move whereever on earth she wants. What you want is an order to prevent the children from being moved out of the current area.

I would add on - if the children are not permitted to move from the area, could you support them on your own, if she decided to move regardless?