Motion after Case Conference

[rvalentines]

Hi All,

I had my first case conference last week where I went from 1 weekly visit (day-time, no overnight) to alternating weekends with overnights and a Wednesday visit.

What are your thoughts of bringing a motion shortly after the case conference asking for 50/50?

Please read below before commenting:
-Married for 10 years with 2 young kids.
-Separated in August 2019 and wrote a separation agreement with 50/50 custody.
-in October 2019, she reports me to police for historical abuse allegations against her.
-Since then, she has only allowed me see my kids once a week, supervised.
-I have criminal charges pending as a result of my ex-wife's allegations and am planning on going to trial to defend myself. As a result, I have NO CONTACT ORDER.

[rockscan]

Isnt the original court action for access? Why would you bring a second motion when the first motion hasn’t gone through the process?

[rvalentines]

The first agreement was from a CASE Conference (Not motion). On CONSENT, we agreed to alternating overnights.
Not sure if this changes your answer or not?
Settlement conference is in 3 months.

[rockscan]

You have a conference due to a court application. That is either a motion to change or an application for something. That “application” is what launches the process of conferences. You can’t file a second motion dealing with the same issues while the existing process is underway.

As others said in your other thread, get through the criminal charges first before pushing for anything else.

[iona6656]

why'd she cave?

[Tayken]

Roaring into court after settling ON CONSENT at a conference to seek a change of the agreement (now an order) you CONSENTED to is not the best option.

You should have not consented at the conference and asked for the judge at the conference to schedule a long motion hearing that was preemptive on BOTH parties to file at the same time and respond at the same time.

Basically a preemptive motion would have specific filing dates where you BOTH submit an affidavit at the same time on the same day. No advantages of who is the applicant and who is a respondent is when it is made preemptive on both parties. Then a schedule for response would be again both at the same time on the same date for a reply to the affidavits. Only one reply no reply to the reply.

Preemptive motions remove the element of surprise from both parties when filing evidence.

A skilled lawyer would have taken this path and advised it over settlement. Did your lawyer bring up the idea of bringing a long motion that was preemptive on both parties? In your matter it would not be uncommon and in addition they would probably make the whole thing viva voce where you and the other party would have to get on the stand and be questioned. (Mini-trial basically.)

Overturning orders made on consent is difficult.

[Tayken]

Think of it this way:

You buy a car for 20,000 and drive it off the lot. Then 2 days later you come back and try to renegotiate the price of the car, that you already purchased and drove off the lot, down to $10,000 now.

You should have negotiated for a better price BEFORE you CONSENTED to the price and gave them the money!

[rvalentines]

Dear Tayken,

As always, you have always provided abundance of information.

My lawyer did not mention any preemptive long motions. In fact, she pushed for me to settle and take the deal being offered.

Her suggestion is now to wait until the settlement conference to negotiate for more access (2 months away).

If we cannot get the additional access we are seeking, she then suggests we bring a motion. But to your point, she is also not recommending bringing a motion shortly after a case conference.

At case conference, I received alternating weekends with overnights and a mid-week visit. I am aiming for 50/50 as was the status quo prior to false allegations. Do you have any strategies/suggestions on what I should be seeking for in terms of access at the settlement conference?

Thanks once again!

[rvalentines]

why'd she cave?

Sorry, I thought I answered all these posts.

The judge gave her a very hard time about her conflicting stories and didn't buy her accusations. Keep in mind I have been the primary caregiver of the children until she decided to unilaterally change the status quo through false allegations.

[rvalentines]

Also to add, the agreement on consent was with a TEMPORARY WITHOUT PREJUDICE BASIS. Does this make any difference?

[HammerDad]

Also to add, the agreement on consent was with a TEMPORARY WITHOUT PREJUDICE BASIS. Does this make any difference?

Not really. Generally what that means is that this is what it is for now and that terms may change down the road by further agreements or court order. It doesn't change the fact that you consented to it. Yes, you can try and negotiate further terms, or continue to push for what you want in court. But a motion to change the terms you consented to, shortly after you consented to them, would be looked upon negatively in court.

[rvalentines]

Dear HammerDad,
Thanks for your response.

It may be viewed negatively in the court, but my understanding is that it should not have an impact on the outcome of the motion, correct?

I mean there is no rule in Family Law Rules saying you cannot bring a motion after a case or settlement conference.

I'm just trying to understand. I hear you and everyone's points, but at the same time there is nothing in the rules saying you can't.

[rockscan]

I mean there is no rule in Family Law Rules saying you cannot bring a motion after a case or settlement conference.



I'm just trying to understand. I hear you and everyone's points, but at the same time there is nothing in the rules saying you can't.

Still doesnt mean you will win or not get blasted by the judge or have to pay your ex’s costs...

[HammerDad]

Dear HammerDad,
Thanks for your response.

It may be viewed negatively in the court, but my understanding is that it should not have an impact on the outcome of the motion, correct?

I mean there is no rule in Family Law Rules saying you cannot bring a motion after a case or settlement conference.

I'm just trying to understand. I hear you and everyone's points, but at the same time there is nothing in the rules saying you can't.

Yes you can bring a motion. But what it will show to a judge is that you can't be trusted with your word, and that you are combative. And the judge will act accordingly. If you didn't agree with the terms a week ago (for example), why did you consent to the order? Yes, it isn't uncommon for people to have buyers remorse, but to nearly immediately file a motion to change a consent order shortly after it is made is going to look very very very bad on the person who does the filing.

Generally you have to give the current order time to work. It is temporary, and the issues are still in front of the judge. The current consent order on a temporary without prejudice basis is simply that, the temporary order to give you some time with the kids and give a baseline until the final order is issued. The final order may or may not look like the temporary order.

[rvalentines]

UPDATE!!!

I brought a motion (Self-Rep) for Right of First Refusal and ability to contact via OurFamilyWizard. As a reminder, I had alternating weekends with overnights and unsupervised.

Not only was the motion dismissed by an 80-year old incompetent judge, but my ex asked for SUPERVISED ACCESS at a ACCESS Center claiming I have mental issues.
No where in their motion or factum did they ask for this. The judge even asked if they provided a Notice of Motion and they responded by saying "This is an Oral Submission".

Any who, the judge granted them their request. I spoke to a lawyer who said that it appears to be an error in law as they did not provide a notice of motion for their request and I did not have a chance to seek counsel. Hence, this is an error in law.

However, she suggests for me to proceed with the access centre to save time and money as Appeal process can be lengthy and costly.

What is everyone's thoughts? I feel like I should appeal. Mind you, I do have criminal charges I'm waiting to go to trial for in a year....