Help Need Advice: tactics on cross motions

[plainNamedDad44]

Hi Community,

D14 has been living with me since Jan 15th. STBX won't provide D14 docs (passport, health card, birth certificate) or her things.

I have served STBX (Respondent) with Notice of Motion for the following:

1. primary residence of D14 to be with me.
2. get D14 things back
3. get reduction in child support.

I had asked STBX over and over and over via email for these things with no answer. My motion is April 15th.

STBX files motion for April 22th. I have no idea what for. She wont tell me. Now her lawyer wants me to consent to an adjournment of my motion to the 22nd.


My thinking is "no bloody way" with this sort of bad faith. I mean, I at least tried to communicate with STBX about this issues over the course of several weeks/months prior to serving motion material. STBX is just going right to a motion. WTF !?

So I am not inclined to provide an adjournment.

thoughs?

[Dadx5]

How do you know they are doing a motion, but not the information?

My child's mother filed a motion but the courts just added it to my motion date (which was already set) Then the judge adjured both matters to another day after hearing our sides.

I personally wouldn't hold off on my issues just because the other side asks when you don't even know what they are claiming. I am definitely no expert though.

I am a bit in the same position as you though. I am still paying support, can't get any of child's things, and child has been with me since Jan 22nd (by court order)

[rockscan]

Dont they have to provide what the motion is about? Or serve documents on you for it?

[plainNamedDad44]

How do you know they are doing a motion, but not the information?

I discovered this when I called the trial coordinators office for dates for my motion.

My child's mother filed a motion but the courts just added it to my motion date (which was already set) Then the judge adjured both matters to another day after hearing our sides.

I personally wouldn't hold off on my issues just because the other side asks when you don't even know what they are claiming. I am definitely no expert though.

I am a bit in the same position as you though. I am still paying support, can't get any of child's things, and child has been with me since Jan 22nd (by court order)

Why would you pay CS for a child that is with you ?

[plainNamedDad44]

How do you know they are doing a motion, but not the information?

I discovered this when I called the trial coordinators office for dates for my motion.

My child's mother filed a motion but the courts just added it to my motion date (which was already set) Then the judge adjured both matters to another day after hearing our sides.

I personally wouldn't hold off on my issues just because the other side asks when you don't even know what they are claiming. I am definitely no expert though.

I am a bit in the same position as you though. I am still paying support, can't get any of child's things, and child has been with me since Jan 22nd (by court order)

Why would you pay CS for a child that is with you ?

[plainNamedDad44]

Dont they have to provide what the motion is about? Or serve documents on you for it?

Yes, but my understanding is that they at least attempt to settle the issues prior to serving a Notice of Motion. Or is this some sort of pressure tactic ?

[rockscan]

Was it a motion for contempt then? That youre in contempt for taking D14 in?

[Dadx5]

I am still paying child support because there is an order in place. It is still with FRO I need an order to stop it.

I would not change anything with your dates. If you are given information you can act on that. Until you receive something official from them I wouldn't change anything.

[plainNamedDad44]

Was it a motion for contempt then? That youre in contempt for taking D14 in?

there is no previous order assigning primary residence or joint/sole custody.

I don't know what the motion is about yet.

[Tayken]

D14 has been living with me since Jan 15th. STBX won't provide D14 docs (passport, health card, birth certificate) or her things.

More than likely the court will require either a Section 30 Assessor, OCL or qualified expert to ascertain why the 14 y.o. does not want to reside with the other parent at all.

A 14 y.o. gets a "say" but, they do not automagically get to make the decision. Many people incorrectly assume that if a 14 y.o. gets to decide where they want to reside. They have a "say" but, not the final "say". 16 is more likely an age where the court won't seek OCL or similar to find out why the child doesn't want to reside with the other parent anymore.

I have served STBX (Respondent) with Notice of Motion for the following:

1. primary residence of D14 to be with me.
2. get D14 things back
3. get reduction in child support.

You will face a cross motion requesting OCL involvement or similar qualified professional to provide an independent perspective as to "why" the child has made this change. It is not as simple as 1-2-3 as presented.

Just to warn you... This is a very common "tactic" seen every day with 14 year old children in courts. A parent convinces the 14 y.o. to live with them so they can reduce child support. Very very very common. I would say that there are at least 4 motions like this right now about to be heard before the Toronto Superior Court.

So, if I am suspicious of your request and am no Judge... Imagine what a well seasoned judge is going to think? Also, contempt has been found for parents who do not encourage their children to see the other parent.

See: CanLII - 2013 ONSC 2364 (CanLII)

Make sure you read all 4 decisions on CanLII regarding that one. 14 y.o. child, parent found in contempt for not executing access, and almost 85,000 in COSTS ordered against that parent over the course of the litigation. All because the parent "believed" (incorrectly) that a 14 y.o. gets to make the decision.

I had asked STBX over and over and over via email for these things with no answer. My motion is April 15th.

I hope you have talked to a lawyer about all this prior to filing the motion. This is a very common and risky motion to bring forward. The judge will more than likely not rely upon hearsay evidence from you directly about the child's decision and "why" they no longer want to reside with the other parent. These often end up in the hands of the OCL or similar expert to insure the child has not been coached or promised anything.

STBX files motion for April 22th. I have no idea what for. She wont tell me. Now her lawyer wants me to consent to an adjournment of my motion to the 22nd.

They should have served you with the motion. If they haven't simply request a copy and also just go down to the court house and get your own copy of what was filed. No need to "ask" the other party what is being requested when something has been filed with the court.

My thinking is "no bloody way" with this sort of bad faith.

This is in no way shape or form "bad faith" at all by the other party. I would recommend you read up on what constitutes "bad faith". (You need a lawyer.)

I mean, I at least tried to communicate with STBX about this issues over the course of several weeks/months prior to serving motion material. STBX is just going right to a motion. WTF !?

Well, you seem to have judged prior to even knowing what is being requested in the motion. I suspect it is something to block you from bringing further motions. You mentioned in a previous posting that you have filed several motions in the past. It could simply be a technical request to require you to seek leave from the court prior to bringing a motion, security for costs etc... or for the matter to be moved straight to trail.

So I am not inclined to provide an adjournment.

thoughs?

Well, I would recommend you obtain a copy of the Notice of Motion that was filed to see what they are requesting before refusing to adjourn. They will make an offer to settle for the adjournment, failing that they will then ask for it on cross to your motion and when successful they will then turn around and ask for costs.

There is no "urgency" to your matter and to adjourn it for a week or two is not going to be an issue. You are the parent who is not returning the child to the other parent so it is very reasonable for that parent to ask for an adjournment. They are the one with the "urgency". They are simply making you look like a total ass. I would tread very lightly.

Also, I would recommend you get a good lawyer. You are treading possibly on very thin ice and may end up with an order preventing you from bringing further action.

Good Luck!
Tayken

[plainNamedDad44]

Taken, thanks for your valuable input, please see my comments,

More than likely the court will require either a Section 30 Assessor, OCL or qualified expert to ascertain why the 14 y.o. does not want to reside with the other parent at all.

OCL has been involved for over a year. D14 has had several meetings with OCL on her own about this. There was an incident of abuse by STBX that was the straw that broke the camels back. Prior to that, I had sent D14 back to STBX to talk to STBX about where she would like to live.

A 14 y.o. gets a "say" but, they do not automagically get to make the decision. Many people incorrectly assume that if a 14 y.o. gets to decide where they want to reside. They have a "say" but, not the final "say". 16 is more likely an age where the court won't seek OCL or similar to find out why the child doesn't want to reside with the other parent anymore.

You will face a cross motion requesting OCL involvement or similar qualified professional to provide an independent perspective as to "why" the child has made this change. It is not as simple as 1-2-3 as presented.

OCL is involved already.

Just to warn you... This is a very common "tactic" seen every day with 14 year old children in courts. A parent convinces the 14 y.o. to live with them so they can reduce child support. Very very very common. I would say that there are at least 4 motions like this right now about to be heard before the Toronto Superior Court.

I did not convince D14 to live with me.

So, if I am suspicious of your request and am no Judge... Imagine what a well seasoned judge is going to think? Also, contempt has been found for parents who do not encourage their children to see the other parent.

Am I to then force D14 to see STBX when she wishes not too ?

See: CanLII - 2013 ONSC 2364 (CanLII)

Make sure you read all 4 decisions on CanLII regarding that one. 14 y.o. child, parent found in contempt for not executing access, and almost 85,000 in COSTS ordered against that parent over the course of the litigation. All because the parent "believed" (incorrectly) that a 14 y.o. gets to make the decision.

I hope you have talked to a lawyer about all this prior to filing the motion.

I have not.

This is a very common and risky motion to bring forward. The judge will more than likely not rely upon hearsay evidence from you directly about the child's decision and "why" they no longer want to reside with the other parent. These often end up in the hands of the OCL or similar expert to insure the child has not been coached or promised anything.

OCL is fully aware.

They should have served you with the motion. If they haven't simply request a copy and also just go down to the court house and get your own copy of what was filed. No need to "ask" the other party what is being requested when something has been filed with the court.

Just because they have reserved the date does not mean that they have filed.

This is in no way shape or form "bad faith" at all by the other party. I would recommend you read up on what constitutes "bad faith". (You need a lawyer.)



Well, you seem to have judged prior to even knowing what is being requested in the motion. I suspect it is something to block you from bringing further motions. You mentioned in a previous posting that you have filed several motions in the past.

Yes, almost entirely for access. What else am I to do ?

It could simply be a technical request to require you to seek leave from the court prior to bringing a motion, security for costs etc... or for the matter to be moved straight to trail.



Well, I would recommend you obtain a copy of the Notice of Motion that was filed to see what they are requesting before refusing to adjourn. They will make an offer to settle for the adjournment, failing that they will then ask for it on cross to your motion and when successful they will then turn around and ask for costs.

There is no "urgency" to your matter and to adjourn it for a week or two is not going to be an issue. You are the parent who is not returning the child to the other parent so it is very reasonable for that parent to ask for an adjournment. They are the one with the "urgency". They are simply making you look like a total ass. I would tread very lightly.

Yes, I see your point. Perhaps I should agree to the adjournment. Ideally I would know what is in the motion, but I am pretty sure that they have not yet filed. I can check with the court clerk.

Also, I would recommend you get a good lawyer. You are treading possibly on very thin ice and may end up with an order preventing you from bringing further action.

Good Luck!
Tayken