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  • Motion cancelled need advice!

    So after 17 months we were suppose to go to motion in a week. We exchanged a couple offers to settle in the last couple weeks. Got closer on custody and the sale of the home but neither were finalized. My offer is very reasonable and probably what the court would award anyway and hopefully stick her with costs.

    Yesterday the sent a letter saying they are going to vacate the motion date because "they feel I am negotiating in good faith" - they are the moving party. Total bull since I've been negotiating in good faith for the last 17 months.

    Really it is because they know they will not get what she wants in court and only via negotiated settlement. What this means is without a court date they have no incentive to negotiate fairly - it will just be more back and forth money being burned. So I need a firm motion date to ensure that they will negotiate meaningfully.

    I spoke to my lawyer about setting up a motion date with us as the moving party. He said we have to get them to agree to the date - to which they don't respond. This makes no sense - so they don't respond to my counter offer to negotiate a settle and they don't respond to our requests for motion dates!!

    So just trapped in limbo - he says if we go ahead and schedule a motion without their agreement they will just request an adjournment. He says we send one more formal communication requesting a response for motion dates otherwise we set up ourselves. Then if they adjourn we use the multiple requests for dates to show that we tried many times and request costs if they adjourn.

    Really need some advice - otherwise I'm just stuck in this limbo! So would really appreciate some guidance folks.

  • #2
    Originally posted by Dee1973 View Post
    So after 17 months we were suppose to go to motion in a week. We exchanged a couple offers to settle in the last couple weeks. Got closer on custody and the sale of the home but neither were finalized. My offer is very reasonable and probably what the court would award anyway and hopefully stick her with costs.
    There is a benefit to being very reasonable in an offer to settle. A very reasonable offer can make going to court on a matter useless if don't properly.

    Originally posted by Dee1973 View Post
    Yesterday the sent a letter saying they are going to vacate the motion date because "they feel I am negotiating in good faith" - they are the moving party.
    It is my understanding is that if either party withdraws from a motion they are obligated to pay the other party's costs in accordance with Rule 12.(3). But, check with your lawyer specifically if they are responsible for costs as it only speaks to withdraws for an application, answer or reply. So, not sure if this applies to a motion specifically so I could be totally wrong.

    Originally posted by FLR
    12.(3) A party who withdraws all or part of an application, answer or reply shall pay the costs of every other party in relation to the withdrawn application, answer, reply or part, up to the date of the withdrawal, unless the court orders or the parties agree otherwise. O. Reg. 114/99, r. 12 (3).

    Originally posted by Dee1973 View Post
    Total bull since I've been negotiating in good faith for the last 17 months.
    Generally, what happens is that both parties agree to withdraw from the motion and eat their own costs. Of course, you don't have to agree to this, withdraw and seek your costs afterwards. But, it could weigh negatively against you. Talk to your lawyer about it as your lawyer has a better perspective of the full scope of your file.

    Originally posted by Dee1973 View Post
    Really it is because they know they will not get what she wants in court and only via negotiated settlement. What this means is without a court date they have no incentive to negotiate fairly - it will just be more back and forth money being burned. So I need a firm motion date to ensure that they will negotiate meaningfully.
    They can withdraw and you can move forward with the motion. Just because they withdraw doesn't require you to withdraw too. But, it will look very aggressive on your part possibly. Again, talk to your lawyer about it and what should be done as they have full view of your file.

    The alternative to recommend is to bring the matter to mediation-arbitration or just to arbitration. Med-arb is great when you have a situation where things could possibly be mediated and it turns into a waste of time... Then either party can request the matter be arbitrated (ordered).

    Originally posted by Dee1973 View Post
    I spoke to my lawyer about setting up a motion date with us as the moving party. He said we have to get them to agree to the date - to which they don't respond.
    A motion isn't always the best way to move on something. You don't need to secure a date... It is a courtesy to do this... But, you can file your materials, set a date and serve them. Don't expect the other party to be happy about it...

    Originally posted by Dee1973 View Post
    So just trapped in limbo - he says if we go ahead and schedule a motion without their agreement they will just request an adjournment. He says we send one more formal communication requesting a response for motion dates otherwise we set up ourselves. Then if they adjourn we use the multiple requests for dates to show that we tried many times and request costs if they adjourn.
    Your lawyer is correct. Your lawyer, as I previously suspected, is doing it in a very polite way. I would recommend you listen to your lawyer on this matter. Although you want it over and done with you need to do the family law waltz some times.

    Originally posted by Dee1973 View Post
    Really need some advice - otherwise I'm just stuck in this limbo! So would really appreciate some guidance folks.
    Your lawyers advice in my opinion is sound. Although you may not like the time lines you are stuck in... This is what happens in the system of family law. You do not want to be a family in the system that is fast tracked that is for sure. Usually fast tracked cases (case managed) are "high conflict" and fast tracked for a reason... Children are in need of protection possibly from the conflict between the parents and a final order needs to be made.

    "Patience you must have my young Padawan..." - Master Yoda

    Good Luck!
    Tayken

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    • #3
      Thanks Tayken! Yes my patience after 17 months is short! However, I agree with your comments and confirming approach being taken by my lawyer. So the waltz goes on!

      Comment


      • #4
        Originally posted by Dee1973 View Post
        Thanks Tayken! Yes my patience after 17 months is short! However, I agree with your comments and confirming approach being taken by my lawyer. So the waltz goes on!
        No problem. Just make sure it doesn't become a toxic waltz...

        Comment

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