Going to a Motion Hearing on Monday, Need Help

[Hide on Bush]

Going to a motion hearing in 5 days in which ex is seeking drastic changes to decision making, parenting-time and child support.

In the 10 years of the child’s life, ex has never had decision making responsibility or more than 25% parenting-time. Ex also makes over $171,000 per year while I make $26,000. Ex is also seeking for child support to be based on parenting-time rather then income as ex is seeking full parenting-time… Ex is claiming the child doesn’t live with me anymore which is outrageously false but is using that claim as a material change to make these drastic changes. I submitted a response with massive amounts of evidence proving ex is wrong and a motion hearing is set as I am seeking to dismiss everything while ex is seeking case conference.

Can I submit an affidavit summarizing everything for the justice? Or does an affidavit have to only contain new information?

[StillPaying]

By "motion hearing", do you mean a first appearance to a motion to change application. If so, I wouldn't expect much except for a case conference date.

Affidavits are submitted for a purpose, usually for a specific motion, and not to add items to your file along the way.

[Hide on Bush]

Not a first appearance, a motion hearing. Motion was submitted and a hearing was scheduled to discuss and decide on the motion.

[StillPaying]

I've had emergency and urgent motions where it was time sensitive before a case conference, but never seen a motion filed to request a case conference. Is your case already before the court or was an urgent motion filed? Sorry, I'm just lost - no help.

[rockscan]

Is it an emergency motion to change custody?

[Hide on Bush]

Here is a full synopsis of the event

2011-2012 - In a relationship with current Ex. Very physically and emotionally abusive.

February 2012 - Child born, split up with ex after additional abuse.

February 2012-2016 - Father very absent in child’s life. Was required supervised visits due to the child’s drastic behaviour changes after unsupervised access.

2016 - I engaged the family court to start the process of getting an order because the father was rarely in the child’s life and was not willing to pay child support. Final outcome was 50/50 custody but I got to make final decisions, child lived with me and father got every other weekends and split holidays.

2019 - Father engaged the family court to try and reduce support and sec 7 payments. He chose to give up his custody for $1000.00 off of arrears. Other then that, the order remained the same. I now had full custody, child still lived with me, and father had every other weekends with split holidays.

2020 - I started a relationship with a military member and asked the father if I could increase the geographical boundary in order to move further within Ontario. He said no so I put in a motion to change.

2020 - July 2021 - The father didn’t want to goto court and agreed to give me the ability to move a little further for an additional week of access during the summer vacation. Additionally, we agreed on arrears as the father got an increase in pay and didn’t disclose it and as such child support didn’t get changed. A consent motion was drafted and signed by both parties. It was submitted to the court and received an endorsement requesting both parties draft and affidavit clarifying the arrears. I submitted the affidavit and the father didn’t. Even after multiple reminders.

November 2021 - I was served with a consent to late filings in which the father was seeking to file a response to the motion submitted in 2020. He is now seeking split decision-making responsibility, having the child live there, and I now only get every other weekend. Additionally he is looking to have child support be based on where the child is living rather than the table amount because he makes $171,000 and I make $26,000. He is claiming material change stating the child doesn’t live with me but with my parents. I informed the father multiple times that the child was visiting his grandparents due to before and after school care due to me and my husband working full time.

December 2021 - I submitted a motion to dismiss the claims of the father because he was unwilling/unable to provide any evidence in his motion that substantiated his claims. The fathers lawyer was again late to file a response and I said no to the consent to late file again which prompted a motion on the father part seeking consent to late file, costs, and n order preventing me from submitting any other documents.

January 2022 - me and the father agreed to have the OCL involved and the father has now alienated the child to a point where he doesn’t want to see or speak to him. In the span of 4 months, CAS has been involved twice due to the child claiming fears of physical violence, the child reporting the father abusing his dog, and the child frequently being unsupervised to a point where my friends were calling me saying my son arrived at their house and the father had no idea. At this point the child is 9, almost 10.

January 5th - Received notice that a motion hearing was set for the 10th to decide on the motion to dismiss and the scheduling of a case conference. I plan on asking to have the OCL conduct their assessment before a case conference is conducted in order for that information to be available to the conference judge.

[pinkHouses]

Assuming you were served on January 5, 2021 they cannot file a regular motion January 5 and have it heard January 10th.
They would have had to have filed December 30th given the holidays.
Family Law Rule 11.3: Your response would have to be filed 4 days before the motion date and that would be January 4, 2021

So this would be an emergency/urgent motion and for that to be granted they need to show that the child is in danger. The rules restricting what is and is not heard are specific to region but you have not said anything that indicates that an urgent motion is appropriate. What region is the motion being heard in?

See Duty Counsel before the hearing. I don't know how you do that these days.
If you end up before a judge keep the email you received (date/time) handy; inform them you think you need a lawyer because you don't understand why you are there and have not had a chance to get one; basically you may be begging.
Inform them that you do not know why you are there and have tried to speak to the Duty Counsel. Definitely show up. I wish I could help more.


Maybe they did serve you but you found out late.
I assume they served you by email. What date and time was the email sent?
What is the other lawyers name?
What happened to this?:
"The fathers lawyer was again late to file a response and I said no to the consent to late file again which prompted a motion on the father part seeking consent to late file, costs, and n order preventing me from submitting any other documents."

[StillPaying]

OP filed a MTC, but no first appearance was done?
Almost 2 years later Ex requests to file a response. Did they?

I'm assuming no, and OP quickly filed for a motion to settle her MTC based on no response from ex...

I'm assuming ex will be allowed to file a response and the case will move forward to a cc where the following step, settlement conference will wait for the OCL results.

[Hide on Bush]

So for an update all that occurred was the judge putting both parties back on track which resulted in a full OCL investigation before a CC would be scheduled. All motions would be decided on in the next couple of days but not at the hearing.