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  • What to expect on a motion?

    After consulting several lawyers, it was a slim chance for an ex parte (kids not in imminent danger), so I figured I shouldn't waste my time and money in Courts. I applied for sub service (14b) to her parents for which Judge approved it.

    In the meantime, a friend from my building tells me a process server has been looking for me.
    Suspense is killing me, so I went to her lawyer that she's been dealing with last year before reconcilliation. He serves me with divorce/custody/SS/CS by SCJ, and I serve him for custody/access by OCJ. All done in 15 min.

    So I have an urgent motion set on Aug 24 for interim custody/access.

    Since this is my first motion ever, anyone have any clue what to expect?

    Thanks,
    Rob

  • #2
    Originally posted by Skndlz2904 View Post
    After consulting several lawyers, it was a slim chance for an ex parte (kids not in imminent danger), so I figured I shouldn't waste my time and money in Courts. I applied for sub service (14b) to her parents for which Judge approved it.

    In the meantime, a friend from my building tells me a process server has been looking for me.
    Suspense is killing me, so I went to her lawyer that she's been dealing with last year before reconcilliation. He serves me with divorce/custody/SS/CS by SCJ, and I serve him for custody/access by OCJ. All done in 15 min.

    So I have an urgent motion set on Aug 24 for interim custody/access.

    Since this is my first motion ever, anyone have any clue what to expect?

    Thanks,
    Rob
    Presuming you meant OCL and that the report states you should be primary care giver. You can hope that the judge will follow the OCL's recommendation.

    There should be an application and affidavits to respond to. I would get working on that and serve them as soon as possible.

    Good Luck!
    Tayken

    Comment


    • #3
      SCJ - Superior Court of Justice
      OCJ - Ontario Court of Justice
      (We haven't had a case conference yet to be able to apply for an order of OCL)

      She filed for divorce, custody, SS, CS etc.. in SCJ one day earlier than I have in OCJ for custody/access.

      I'm still waiting for paperwork from legal aid to retain a lawyer.
      Can there be two applications at the same time? I asked the clerk before I filed if there's anything in the system by my ex. She said I wouldn't be able to file my application if there was.

      I have no idea what to expect next. Any suggestions?

      Comment


      • #4
        Urgent motions are somewhat rare, and must be valid.

        You don't say what the context of the motion is, nor do you share any factual evidence served with it.

        So really it is impossible to tell you what to expect.

        If it is a frivilous motion, it will most likely be denied. If there are valid reason to ask for whatevr is being asked (in the context of what is BEST FOR THE CHILD), I would expect it to be successful.

        Hopefully you responded with adequate materials and can just sit back and let it unfold. If not, be prepared to answer questions about the matter at hand.

        If you are to attend a motion - it would seem to me an application has already been started. Otherwise you would have been served with an application vs. a motion.

        I'm not completely certain, but if she filed before you - then I suspect you will operate under that application from now on. If you two live in different areas, and the child(s) live in a different jurasdiction then her application, you may be able to change it to the other court (where the kid(s) live most of the time).
        Last edited by wretchedotis; 08-14-2011, 05:47 PM.

        Comment


        • #5
          Originally posted by wretchedotis View Post
          Urgent motions are somewhat rare, and must be valid.

          You don't say what the context of the motion is, nor do you share any factual evidence served with it.

          So really it is impossible to tell you what to expect.

          If it is a frivilous motion, it will most likely be denied. If there are valid reason to ask for whatevr is being asked (in the context of what is BEST FOR THE CHILD), I would expect it to be successful.

          Hopefully you responded with adequate materials and can just sit back and let it unfold. If not, be prepared to answer questions about the matter at hand.

          If you are to attend a motion - it would seem to me an application has already been started. Otherwise you would have been served with an application vs. a motion.

          I'm not completely certain, but if she filed before you - then I suspect you will operate under that application from now on. If you two live in different areas, and the child(s) live in a different jurasdiction then her application, you may be able to change it to the other court (where the kid(s) live most of the time).

          After filing the application for sole custody, I filed an urgent motion asking for:

          1. sole interim custody of my children, daughter ( 20 m.o.) and son 7 y.o.
          2. supervised visits by a third party for the responding party at Court's discretion
          3. non-removal order from regional municipality of Halton
          4. an order this motion be heard prior to case conference on the basis of urgency
          5. an order that leave be granted for short service of this motion and supporting materials
          6. Costs
          7. Any other order Honourable Court seems just


          What exactly constitutes factual evidence?

          I have four affidavits from people from my building stating my 7 y.o. son is left unsupervised and in risk of harm for a longer period of time while I'm at work.

          My ex has been exposing my daughter to a sex offender (let him hold, play and kiss her) and when I tried to charge him and her with assault cops dismissed it for lack of evidence. They did confirm that he's a sex offender and served two years in jail for rape.

          How does one prove that to a Judge? How does one obtain someones criminal record on a piece of paper? I did elaborate all this in my affidavit.

          Will that be enough?

          Comment


          • #6
            Well I'm not a judge, nor a lawyer.
            So maybe those facts will ease what I'm about to say to you.

            From the reasons you have given - I would not think an emergency motion is warrented. Quite honestly, I think maybe you are looking at these issues with more emotion then you need to.

            Comment


            • #7
              Thanks for your input,

              would you know how to obtain someones criminal record for family court purposes?

              Comment


              • #8
                Originally posted by Skndlz2904 View Post
                After filing the application for sole custody, I filed an urgent motion asking for:

                1. sole interim custody of my children, daughter ( 20 m.o.) and son 7 y.o.
                2. supervised visits by a third party for the responding party at Court's discretion
                3. non-removal order from regional municipality of Halton
                4. an order this motion be heard prior to case conference on the basis of urgency
                5. an order that leave be granted for short service of this motion and supporting materials
                6. Costs
                7. Any other order Honourable Court seems just


                What exactly constitutes factual evidence?
                For the best and fastest read on determining relevance of evidence (finding of fact) Justice Brownstone's book "Tug of War" is probably the best. This is where a solicitor helps significantly too. What a unrepresented litigant often thinks is "relevant" is often not.


                Originally posted by formyGirls View Post
                I have four affidavits from people from my building stating my 7 y.o. son is left unsupervised and in risk of harm for a longer period of time while I'm at work.
                Be sure to inform the people providing the affidavits to the fact that these are sworn statements to the truth and that they may be ordered for questioning on their affidavit evidence.

                Also, make sure they don't reflect what is often referred to as a Negative Advocate by many experts. They should be non-biased as much as possible where possible. (Hard to do at times especially in the situation you are describing.)



                Originally posted by Skndlz2904 View Post
                My ex has been exposing my daughter to a sex offender (let him hold, play and kiss her) and when I tried to charge him and her with assault cops dismissed it for lack of evidence. They did confirm that he's a sex offender and served two years in jail for rape.
                Make sure you have your Form 35.1 Request for Custody and Access (affidavit) completed and this very relevant information detailed in it. You are required to file a Form 35.1 and an updated Form 35.1 for any motion. Also, be aware the other parent is required to do this and you can have a motion stayed if the other parent does not file a 35.1.

                You should request a police background check on the individual as part of the request if you haven't already.

                Originally posted by Skndlz2904 View Post
                How does one prove that to a Judge? How does one obtain someones criminal record on a piece of paper? I did elaborate all this in my affidavit.
                Request the person's police record. Also, any non parent per 35.1 of the CLRA requires the completion of a police records check. So leverage that rule to get this information. Focus on the person in question being a caregiver as the reason for the request for disclosure.

                Originally posted by Skndlz2904 View Post
                Will that be enough?
                Here are some other tips:

                1. If the person in question is residing with the other parent they have to provide a police background check in my opinion in light of the allegations you are making. A judge will simply request it as part of the resulting order.

                2. You may be able to pull the criminal trial record from the court house. You need to know the person's full name and where the determination and finding of the criminal proceeding was. You may be able to pull this record yourself or through the assistance of a solicitor as they are generally public record *I think*. (I could be wrong someone correct me if I am wrong on criminal law.)

                3. You can possibly (check with a solicitor) attach the relevant details of the criminal proceeding regarding the person in question to your affidavit as evidence. Again check with a solicitor. (Someone correct me if I am wrong.)

                Good Luck!
                Tayken

                Comment


                • #9
                  I see you are in Halton. I believe the proper court to file in was the Superior Court of Justice as Halton does not have a Family Court. The SCJ is in Milton, I've been there a couple times, but can't recall the street (it was a seemingly industrial/commercial area).

                  Comment

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