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Facing motion - can I adjourn?

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  • Facing motion - can I adjourn?

    Just received the motion notice today. It contains 12 pages long affidavit with repetitive allegations, a factum of equal length and numerous attachments. It is impossible for me to prepare for my answer in less than two business days as I have a very busy job schedule and a kid at home. Requesting a time off at work would be like asking for layoff as my employer has recently fired like 25% of its workforce.

    I need at least couple of weeks to find a lawyer and arrange the money for his/her retainer. Wrote a letter to ex's lawyer asking for adjournment but she declined saying it would be impractical to delay the motion. Can I go to the court without filing my answer and ask the judge for an adjournment?

  • #2
    What are they seeking in the motion?

    Don't be put off by the 12 pages. Do your best to file an anwer that is concise and to the point. You don't have to prepare 12 pages as well. It's quality not quantity.

    Put in some hard hours over the next 48. I had to do the same at times.

    If you haven't had a case conference, they are filing an emergency motion. You can try to argue that isn't an emergency and that this motion shouldn't be heard until a case conference is held.

    Don't know if you can expect a judge to allow an adjournment otherwise.

    Either way, don't forget to ask for costs in your answer!!! Especially if they are being frivolous.


    • #3
      She is asking for order to allow her to travel to home country because I revoked my previously given consent or the cost of cancellation of trip. I didn't agree to either because her claim is bogus and without merit. But, I guess she has full faith in our beautiful legal system.

      I believe she is doing this prior to formal report by OCL and to create prejudice against OCL report as the report is not very rosy for her. (we already had the disclosure meeting)

      The affidavit and factum is very overwhelming as her lawyer has attached pages and pages of case law which I don't even have time to read.

      I want to adjourn it at least until formal OCL report is out so that I could seek change in access.

      Any advices on how I can go self represented?


      • #4
        As you suggest, self-represent and say that no changes to the children's routines should occur until the OCL report is issued.

        As you know, the disclosure meeting is also an opportunity to bring the parties together in order to reach agreeement. That you weren't able to reach agreement should tell the judge that you are still in conflict.

        Mention that you had your dicslosure meeting and you are waiting for the report, which should be coming soon. Until then, no changes. The judge would have to nuts to allow this disruption to the status quo when the OCL report is about to be issued.

        What are the OCL recommendations?


        • #5
          I saw my old lawyer today. She is suggesting I do the affidavit to oppose the motion and let her review it and commission it. I then file and go self-respresented. Couple of hundred dollars, no big deal I guess. While doing the affidavit I realized, like what you said, that judge has to be nuts to let her take him out of country especially when she just found out that OCL is going to favour me over her.

          Disclosure meeting was not joint. The worker first met her and her lawyer and then me.

          Now the ex (yes, already) is saying she will dispute the report. Why, because the report is not in her favour, I guess? Remember, she is the one who wanted OCL at first place so she must be very, very disappointed. And, all I have to do for now to highlight her disappointment in my affidavit.


          • #6
            She will have a very heavy burden disputing the OCL report. The judge's best independant evidence at this point is that report. My informal research revealed that the recommendations of the OCL are implemented 80% of the time.

            It's only natural that she says she will dispute the report. My ex threatened to call the OCL racists, and other far-fetched things to advance her cause. She was grasping at straws because the truth was about to be revealed. Give her some time to digest this very bad news for her. Eventually she will see that it's a virtually done deal, but that may take a settlement conference or two.

            For the disclosure meeting to be held separately indicates that the two of you are pretty conflicted, which in turn suggests sole vs joint custody. Again, what are the OCL recommendations? Sole or joint custody? What is the parenting schedule?


            • #7
              I was not asked to prepare the parenting schedule.

              He was not very specific about custody/access recommendations but said no change was necessary until mom took help to deal with her mental problems.

              Ex is saying in her current affidavit that she would be disputing the report.

              I filed my affidavit for the upcoming motion. They didn't give me any proof that I filed it. The clerk asked me to insert the affidavit at the bottom of the file beneath ex's exhibits; hope the judge will read it.


              • #8
                What is the current custody arrangement and parenting schedule?


                • #9
                  I have the custody. She has him on every other weekend and every Wednesday evening for two hours.


                  • #10
                    She has every other weekend and one night a week??!!

                    IMO she has zero chance of success at the motion and would be foolish to bring it. The judge ought to be slapping her with costs for asking to take the child out of the country on the heels of an unfavourable disclosure meeting.

                    One problem will be that the formal report hasn't been issued yet, so tread carefully with your references to the OCL recomendations at the motion, as the judge has nothing against which to verify any he said/she said. You certainly want to be careful not to exagerate the recommendations in your favour, as that could damage your credibility when the report gets issued.

                    I'm surprised at the implied vagaries of the investigator at your disclosure meeting. Our investigator was very specific as to custody and the parenting schedule. Unless you have a previous order/written agreement to which the investigator is specifically referring when he says no changes should be made, then the report will not give clear guidance to the judge as to what the schedule will be.

                    The OCL investigator should be copied on motion materials and other correspondence as the OCL is a party to these proceedings.


                    • #11
                      Oops. I didn't know that OCL should be copied on the motion. Although I do realize now that the other party did copy them. Can I still do that? The motion is on Tuesday and OCL will not receive my affidavit before Monday.

                      I actually did not use much with reference to OCL except that they were against the trip. My ex acknowledged that in her affidavit too.

                      Ex is on legal aid. Can the judge still award me costs?


                      • #12
                        Fax a copy of the materials to the investigator ASAP.

                        I don't see why a legal aid recipient can't be held accountable for costs, but enforcing the payment will be your next task.

                        Moreover, if you get awarded costs, she cannot bring further motions until they are paid. I read this somewhere on this board, don't know if it's true. Anyone know for sure?

                        Your ex acknowledges that the OCL doesn't agree with the trip? This gets better and better for you. As most of us know, anything's possible though.

                        Let us know how it goes.


                        • #13
                          It is correct that a party with OUTSTANDING court costs cannot bring forth a motion.

                          However they can still respond if you were bringing forth something else.


                          • #14
                            I just faxed a copy to the OCL worker. Do I have to file affidavit of service also?

                            She knows that most likely she won't be getting the permission to travel. That is why throughout the negotiations she has been asking me to pay for the cancellation fees. My position is she purchased the tickets after I had verbally told her of my revocation of consent. (Prior to receiving OCL recommendations I had given her written consent to travel but she did not purchase the tickets until after I had verbally revoked it).

                            All of these facts, she is acknowledging in her own affidavit. To me it looks like no brainer situation; she probably only wants to cause me financial hardships and mental griefs.

                            I have never stood before the judge before. I have seen her lawyer is very vocal and assertive. The judges tend to side with her because she draws a very sympathetic picture of my ex as to how she was "allegedly" abused by me during the course of our marriage. Ironically, all those abuse allegations have been found to be false by OCL. Instead they will be confirming just the opposite because she was physically abusing our son and mentally abusing me right in front of our son. She is still emotionally abusing our son. She is also using "how come, if I were abusing our son, he didn't curtail the access" argument. To this I am saying I had no independent evidence so I had no choice but to honour the court order in place.

                            My only hope is that the judge reads my affidavit.


                            • #15
                              Good or bad?

                              OK so we were in the court today. Ex's lawyer handed me another affidavit in the court room, responding to my affidavit. What am I supposed to do? File another one responding to her response?

                              So the judge didn't want to hear the motion until the OCL worker was present. Ex had criticized OCL findings before they were actually filed (still not filed). The motion was adjourned but the judge ordered the OCL worker to appear with his lawyer in the next date.

                              Is that good or bad (I mean OCL coming in court room to defend their worker)? To me it sounds like my ex just got herself a deeper hole to come out from.


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