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Lost joint custody because of missed court dates

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  • Lost joint custody because of missed court dates

    Someone I know just went to court and was told he missed previous court dates and lost joint custody of his daughter.

    He never knew about the previous dates. Ex lied about giving him the paperwork and court believed her.

    How are court summons usually sent in Ontario? What proof is needed that he didn't get them?

    What should he do?

  • #2
    There should be Affidavits of Service signed and dated each time materials were delivered to the ex, as part of the record... if anything was ever delivered.

    If he moved frequently or was out of contact, or didn't provide updated contact information to the court house, the court could decide that the mom "did her best" and allow the case to proceed on an uncontested basis.

    Comment


    • #3
      He didn't move and wasn't out of contact.

      Comment


      • #4
        Someone is lying?

        Are there lawyers involved?

        My daughter just received a response to a motion and it states that her ex's lawyer sent her a letter 2 weeks ago, which she has never received. So is Canada Post at fault ot is someone lying? I belive there has to be some proof of serving. Registered letter, affidavit of service, email recd receipt.

        Comment


        • #5
          I get the feeling he was carefully set up. I don't want to go into too many details because it's not my story to share.

          Thanks for the advice.

          Comment


          • #6
            If they have his signature somewhere (signed for something) or proof of fax to a fax machine that there's proof he has access to, then he may be in for a fight.

            If he was in court then he should have a file in the continuing record. If it can be proven that they contacted him using his contact info on his "application" or "response", perhaps by some of the ways above then he may some explaining to do.

            Sounds like communication is not only terrible .. but non-existent. Ourfamilywizard.com = records of all communication.

            Comment


            • #7
              He needs to see the affidavit of service that was filed. He will have to prove that he was not served and the first step is getting those documents. Set up or not, he now has to prove he never knew about the court dates.

              Comment


              • #8
                Originally posted by Berner_Faith View Post
                He needs to see the affidavit of service that was filed. He will have to prove that he was not served and the first step is getting those documents. Set up or not, he now has to prove he never knew about the court dates.
                Yes. Go to the court house and ask to see the continuing record. Then look at the Affidavit of Service.

                Good luck.

                Comment


                • #9
                  She says it was passed to him with some school papers for their son. Can the ex be the one to serve the court summons?

                  Comment


                  • #10
                    Originally posted by BlueDressInToronto View Post
                    Can the ex be the one to serve the court summons?
                    To my knowledge anyone is able to serve documents.

                    Originally posted by BlueDressInToronto View Post
                    She says it was passed to him with some school papers for their son.
                    Depending on how this passed, this may not count as service. If it was tucked in with the school documents in the morning, and your friend picked up the child after school with the documents supposedly in the child's bag, that is not service.

                    But if the ex handed your friend a bunch of documents, which included the court documents, that may be deemed service.

                    Comment


                    • #11
                      The papers weren't there though. That why it seems like a set up.

                      Comment


                      • #12
                        Originally posted by BlueDressInToronto View Post
                        Someone I know just went to court and was told he missed previous court dates and lost joint custody of his daughter.
                        The courts don't just make these orders willy nilly. Most justices will require significant evidence that service was attempted. This would be in the form of an affidavit from a skip tracer / PI that they were unable to locate and serve the documentation. You basically have to be a missing person to have this happen.

                        Originally posted by BlueDressInToronto View Post
                        He never knew about the previous dates. Ex lied about giving him the paperwork and court believed her.
                        I doubt it. Sorry to say. But, the requirements for a justice to make an order ex-parte such as removing custody like this would require several attempts of service and for a professional service provider to provide an affidavit stating they can't locate the other party.

                        So I call BS on this one.

                        Originally posted by BlueDressInToronto View Post
                        How are court summons usually sent in Ontario? What proof is needed that he didn't get them?
                        You are going to be going up hill on this one. The reality is that for a non appearance the matter is turned over to law enforcement and they go and get you for court. This means even law enforcement couldn't locate the parent in question.

                        Originally posted by BlueDressInToronto View Post
                        What should he do?
                        I recommend retaining legal counsel.

                        Good Luck!
                        Tayken

                        Comment


                        • #13
                          Originally posted by BlueDressInToronto View Post
                          The papers weren't there though. That why it seems like a set up.
                          Retain a lawyer. This is a serious matter and worth the money as the complexity of family law makes it difficult for most to self represent.

                          Comment


                          • #14
                            He never knew about the previous dates. Ex lied about giving him the paperwork and court believed her.
                            He may wish to immediately file to have those orders set aside and a new hearing date set. Hiring a lawyer may be prudent.

                            Comment


                            • #15
                              Originally posted by Berner_Faith View Post
                              He needs to see the affidavit of service that was filed. He will have to prove that he was not served and the first step is getting those documents. Set up or not, he now has to prove he never knew about the court dates.
                              I thought she is the one who has to prove he was served. How can he prove if he didnt get the documents. When I served my ex I had a witness with me.

                              Comment

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