Going to a Motion - Have Questions

[Teddie]

My ex and I split, sold the marital home and had agreed (verbally) that it was best for our children that we remain in the same end of town so that their school would not change.

Our separation turned nasty after my ex denied access to the kids for 2 months before we agreed to interim 50/50 and joint custody at a case conference in November.

All along my ex has been making claims of child abuse against me, alcoholism, spousal assault etc etc. She has accused me of spousal assault and had me falsely arrested. I was released without charge and the police stated in their report that they didn't believe her.

My ex has tried to alienate me from the children by badmouthing me, reading my 10 year old her affidavit, and blaming me for the whole separation. I have taken the high road and don't talk bad about her to the kids.....which really pisses me off inside but it's something I need to do.

I recently purchased a home in the same neighborhood as the kids current school and my ex decided to move to another part of the city and expects the kids school and day care to change as well. She denies that we ever agreed to stay in our current area.

My ex is asking for a change of schools to her area, sole custody, full CS for 2 kids, Spousal support, and 60% of section 7 expenses. Her salary is 67% of my salary and she works shift work. She states in her affidavit that due to her shift work she will have her mother and friends watch the children. I work 9-5 Monday - Friday.

At our settlement conference the judge ruled in favour of my proposal to have a 50/50 joint custody arrangement with 7 days on and 7 days off. I told the judge that I would agree to move the kids school to her neighborhood and that all I wanted was a stable consistent access schedule where both kids could have lots of time with either parent.

My ex scoffed at the ruling and will not sign minutes of settlement and has proceeded to book a motion date for early September just before school starts.

I am worried. I know that the judge who sits in at the settlement conference cannot hear the motion so the ruling could be completely different.

Is it common for a different judge to view the facts completely different and rule is a very different manner than the settlement conference judge?

This woman is pushing me to the brink of bankruptcy. We both just bought new homes. Hers is more expensive than mine and I have no idea how she is affording the legal fees. She has no respect for me as the kids father and doesn't care about whether or not I can still provide for our kids anymore.

Thanks

[wretchedotis]

Whats the motion asking for?

[Teddie]

She is asking for the children to move schools to be closer to her, full custody, full CS and SS.

[wretchedotis]

Well you are rightfully concerned.

September is a concern as a date as it is right before school starts.

You really would be wise to get a lawyer if you can afford one. This is no small matter - depending how far away she wants to move.

Presumably, what you have on your side is Status-Quo, and I believe that never making a formal arrangement will put even more emphasis on that for you.

Like I said. Lawyer up. Then consider an emergency motion in light of the school deadline concern (or her move date - whenever that is).

[Teddie]

I have had a lawyer for almost a year so I am good to go in that regard. I have always been a very involved father, have reference letters from daycare providers, neighbors, friends, co-workers etc. My lawyer said we have a very strong case but there is always the chance of losing and that is why we have tried for months to settle with her.

She is looking for the homerun in court and it's all money driven. If she gets more custody and access then she gets more money and more control and that is what this is all about.

Well you are rightfully concerned.

September is a concern as a date as it is right before school starts.

You really would be wise to get a lawyer if you can afford one. This is no small matter - depending how far away she wants to move.

Presumably, what you have on your side is Status-Quo, and I believe that never making a formal arrangement will put even more emphasis on that for you.

Like I said. Lawyer up. Then consider an emergency motion in light of the school deadline concern (or her move date - whenever that is).

[Tayken]

Well you are rightfully concerned.

September is a concern as a date as it is right before school starts.

You really would be wise to get a lawyer if you can afford one. This is no small matter - depending how far away she wants to move.

Presumably, what you have on your side is Status-Quo, and I believe that never making a formal arrangement will put even more emphasis on that for you.

Like I said. Lawyer up. Then consider an emergency motion in light of the school deadline concern (or her move date - whenever that is).

Excellent advice. Status quo is in your favor and any parent moving away from the other has to make a VERY strong case to a judge as to why changing would be better for your children.

It is an almost impossible argument to make at times from what I witness in the court room and in decisions.

It is late in the game to be making allegations of domestic violence and child abuse in the case. With allegations of abuse the person making them should be providing details (date, time, witnesses, doctors reports, et all...) up front in any proceeding before the courts. Justice Brownstone makes a very strong note of this in his book "Tug of War".

But. "Lawyer up". Don't try to do this without a solicitor. Especially if the other party has representation.

Furthermore, if the other side has representation... Go to CanLII.org and put there full name into the search in quotes. Start reading the decisions.

Solicitors have a pattern of behaviour. If there are any posted decisions involving the solicitor you will see their tactics quite quickly and how they conduct themselves in litigation.

It is amazing to see how common a lawyer will use the same tactic at court. Some solicitors thing there is a "one size fits all situations" in family law.

Also, read all the losing decisions. Often solicitors who lose take on the behaviour patterns of the winning solicitors tactics and attempt to "sell" this to their future clients. So read every decision they are involved with.

Good Luck!
Tayken

[wretchedotis]

Sounds to me like you are in good hands and do have a strong case.

But your counsel was absolutely correct. You just don't know what a Judge will do.

My guess is you will be ok. Just, I guess, get used to sweating bullets until the final outcome.

Try starting to lift weights. Thats how I coped with it all. And plus I can now (3 years later) mack all the chicks (LOL).
:P

[Teddie]

Sounds to me like you are in good hands and do have a strong case.

But your counsel was absolutely correct. You just don't know what a Judge will do.

My guess is you will be ok. Just, I guess, get used to sweating bullets until the final outcome.

Try starting to lift weights. Thats how I coped with it all. And plus I can now (3 years later) mack all the chicks (LOL).
:P

Thanks wretchedoits and Tayken. I am confident but don't like putting my fate in someone else's hands like this. Both at the case conference and settlement conference, the master and judge hearing the details ruled in my favour so I am hopeful.

LOL....mack all the chicks

[Tayken]

I have had a lawyer for almost a year so I am good to go in that regard. I have always been a very involved father, have reference letters from daycare providers, neighbors, friends, co-workers etc. My lawyer said we have a very strong case but there is always the chance of losing and that is why we have tried for months to settle with her.

She is looking for the homerun in court and it's all money driven. If she gets more custody and access then she gets more money and more control and that is what this is all about.

Great to hear you have representation. Very good idea in these kinds of matters.

Careful with "letters of recommendations". A very good litigation solicitor (trial lawyer) can get these "letters" thrown out as they are not sworn to the truth in affidavit format. They may be useful on a motion but, don't be surprised if the other side requests sworn affidavits to the truth for every letter. Letters can be forged. If at best, have them notarized when you do submit them to evidence.

You can't cross examine or order a third party for questioning if it is only a letter. So, on a rule of evidence you can get them removed if necessary.

Good Luck!
Tayken

[NBDad]

Minutes of settlement are usually compiled because the parties agreed without having to go before a judge. If a judge made a ruling, it'd be an interim order, and she doesn't have to sign it. The judge ruled, therefore THAT ruling is in effect until she is able to have it overturned.

If the items you've indicated were already addressed by that judge, I would imagine you would simply respond that those items were already dealt with on XX-XX-XXXX date by Judge XXXXX and request her motion be dimissed, and for costs.