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Motions and Legal Costs

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  • Motions and Legal Costs

    I am going to court this week for a "Motion". The last court date of the "Case Conference" was held back in April. There was a "Motion" date set for May, which was adjourned by the other party because I was in the works of settling and negotiating. After I agreed to the adjornment, the other party decided they did not want to try to settle out of court and has done nothing to negotiate a settlement.

    We are going to court due to a relocation, access arrangements, travel arrangments, child support and legal costs.

    I have agreed to the major issue which was consenting to the relocation. This will cause a two hour round trip to access the child and I am asking the other party do one way of the travel. I am agreeing to pay full child support as to the guidelines, and take the reduction in access which will be about eight hours a week plus.

    Now the other parties lawyer is saying my most recent affidavit contains information that was said during the Case Conference and that that is "not appropriate". Are you allowed to tell the Motion Judge what the Judge at the Case Conference said if it is relevent to the case such as saying "The Case Conference Judge recommended this and we did this and she was recommended to by the Judge to do that and she didn't do it"?

    Also, when it comes to paying legal fees, I know it is the "loser" that pays the winners costs full or partial, but how is that determined if you have settled a bunch of the issues out of court already and there are only minial things you cannot agree on that you need the Judge to decide on?

    The only issues left to determine are access over the summer.. she is saying three weeks I am asking for four, she will not provide a telephone number for me to call and speak with our daughter, I am asking for the number, she is saying I do all the travel, I am asking that she does one way I do the other because I don't own a vehicle and I can get one easier for one way but not to get her back, and other than that it is costs because she is wanting me to pay hers and I am just saying each of us pay our own.

    Any advice?

  • #2
    While I'm not an expert on affidavit preparation it is my experience that you should keep it as concise as possible, stating how you wish things to be and why. Maybe it is inappropriate to be telling one Judge what another Judge suggested.

    You do not state the custody arrangement but whatever it may be you should certainly have a contact # to use at any time you wish to speak with your child. Even a parent with sole custody has no right to withhold this.

    It sounds very fair to me that you share the travel back & forth from access. This is definately not asking too much. You consented to THEIR move and even without a vehicle you are committing to one way of travel.

    Asking for 4 weeks in the summer is half. That's your right.

    I've only had one costs experience and it was a total win for one side. The Judge made their ruling and the winning party's lawyer determined how much the bill was for preparation and fee for the day in court and it was added to the order.

    It's too bad that your adjournment has turned into a stalling tactic to not negotiate out of court but rather prepare an argument for all these things.


    • #3
      The first Judge's recommendations were taken on my behalf, but the other party did the exact opposite of what the Judge recommended which also means that she took a decision that was left for a Judge to make and made it herself. Do you think this is still not appropriate? Unfortunatly the other party also tried to bring the Montion when we were at the Case Conference, so my prepared affidavit was still that of not consenting to the move. Once the Judge recommended I do it, I did, but the affidavits had to be prepared incase he decided to hear the Motion that day. I have put in another small affidavit just to inform the new Judge of what has gone on since the last court date which includes her moving the childs school which was not recommended. This is why I would like to put it in.

      The custody arrangement is Joint Custody which we agreed upon in a Separation Agreement signed last year. She is now asking for Joint Custody with Primary Residence to her which I have basically no choice but to agree to. When we all lived in the same town I saw the child 5 days a week basically, every Monday to Tuesday morning, 2 hours Wednesdays, 2 hours Thursdays, every other Friday to Tuesday morning.
      Now it is going to be every other weekend from Friday night to Monday night when she is not in school and Friday night to Sunday night when she is in school. I find this a drastic difference because before I would go no longer than 3 days in a row not seeing her, now it will be 11 days.

      She is dead set against doing half of the travel. In the early negotiations last year she said she would meet at a halfway point which I have in a legal letter from her lawyer. They are now saying she never said she would do half the travel. I am only trying to do what I can to see my child. I think this is her way of trying to shorten and frustrate my access, if I can not access a vehicle, I can not see my child.

      I thought 4 weeks in the summer was fair. She is saying I can have 3 and that's her being "generous" because past circumstances were that I only took 1 weeks holidays last summer, which is true due to money, but even taking only 1 week, I was also still seeing the child 5 days a week at that time. This summer I have arranged it so that the 4 weeks while the child is with me, I will only have to work 2 days 3 of the weeks and I have family to spend the time with her those 6 days I will be working and my hours of work will be from 9am to 5pm those days.

      This is what I cannot understand about legal fees. Because I have consented to the major issue and I have negotiated on everything other than the minor things she will not agree to, is it going to be that if the Judge says there is nothing wrong with what I am asking for and orders it my costs will be paid? or vis versa?? Also, her lawyer is claiming that because at the case conference I did not consent to the move, I have wasted time and I should pay the legal fees. I didn't consent to the move at the case conference because she was asking the move happen immediately. That was April and I knew the child was to finish the school year here which was recommended anyways so we had till June. The next court date was set for May and I informed the other party I would consent to the move one week after we were in court in April. That gave us three weeks to negotiate before the May date, she then adjorned the May date but did nothing to settle between then and now. Will this affect me having to pay legal fees? I was under the impression the case conference Judge could not make a final order either way that day so we would have to go infront of a Judge again anyways because I also knew the other party would not agree to half the travel and reasonable access as what it has come down to.

      I think you are right... she has only asked for the adjornment to go ahead and pre set everything she wants which is she moved the childs home and school, put her home up for sale in the local area because she lost her job where the move is and doesn't want to have a home here for if i try to fight the move as the job was the reason for the move (it was actually the new boyfriend but she was claiming it was the job), force me to do all travel to see the child and access is all based on what she says. I just hope the Judge see's all this.

      Thanks for the response.


      • #4
        Case conferences are on without prejudice basis. That means whatever is said and discussed in the case conference including the judge's recommendations, it cannot be disclosed or used anywhere else. So yes, you should revise your affidavit without those paragraphs otherwise the other party may ask the judge to strike them off the records.

        Personally, I would have never allowed the move until I had a solid agreement about access and transportation. Now she has got you in the corner. No matter what, do not miss the access even if it means you have to do the transportations both ways.

        From the sound of it, I don't think she will be able to get costs from you since you have been nothing but cooperative. Do not get initimated by her lawyer's or her bullying tactics. Document everything and pull out whatever documents you can to prove that its her who is being wooshy washy.

        Good luck.


        • #5
          I spoke with my lawyer today and he said that giving the Motion Judge the recommendations the Case Conference Judge gave should be okay. He says that they Motion Judge doesn't want to hear too much from the Case Conference and doesn't want anything in depth, but that saying I have gone with the recommendation and the other party has gone against it should be fine.

          I didn't agree to the move so to speak. I had sent over an offer to her lawyer that had about 20 different things to settle on it. She accepted about half of them, one of them being that I agreed to the move. She took this offer and broke it all down in to individual things, but it was meant to be a package as agreeing to one thing effects another.. ex what you're saying about how the agreement to the move affects the travel arrangements. She went ahead and took that part of the offer and move the child. There was nothing I could do or the police or my lawyer as they were only seeing Trials in court for the past three weeks. I have made sure to see the child the past three weeks for all access that was to be mine but it has been very difficult. She really wants me to do the driving so I feel that her forcing it will give her the option to go into the Judge and say "Hey he's already been doing it for three weeks so what's the problem?". Arranging things for three weeks is different that a permanent arrangement.

          I think her lawyer is just trying to scare me into settling by threatening fees. IF the Judge sees nothing wrong with her doing half the travel and me getting the four weeks in the summer is there a chance she could have to pay my legal fees? Seeing she was the one who adjourned the court case and then did nothing but go ahead and do what she wanted which included moving the child and forcing me to do all the travel without any court order.

          Thanks for the reply


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