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-   -   Judge said: come back and see me... (https://www.ottawadivorce.com/forum/showthread.php?t=9059)

BitHunter 04-16-2011 12:51 PM

Judge said: come back and see me...
 
So we had a case conference last Monday when everybody agreed that I have overnight access to my daughter every second weekend. It wasn't endorsed, it is not an order, this was we talked about during the whole time. We briefly discussed that the next overnight access will be on the Easter long weekend, when obviously I will not be able to pick up the child from school on Friday. The judge said that "I'm sure they will be able to work it out, if not come back and see me"
So it seems not. I just got a fax from my ex's lawyer, telling me that there will be no overnight access. Our last two access were overnight accesses, and the judge specifically discouraged any change in the access in the near future during the conference.
No explanation is given why the access was suddenly cut, so this is just a disgusting thing I hope will piss off the judge in June during our next CC, but I still want to spend the overnight with my daughter next weekend. What can I do? What did the judge mean when she said "come back and see me"? Is there any ways to notify the judge about this? Or should I file an emergency motion? (I don't have a lawyer)

wretchedotis 04-16-2011 01:37 PM

You have been to case conference, and are now able to file a motion.
It need not be of an urgent/hardship nature.

I would file a motion.

Ask for a temporary order outlining very specific access, along the lines of what the Judge talked about.
In your affadavit, make sure you demonstrate how it has happened previously, and there is no reason for it to not happen again.
Ensure you also give all the positive things for the child in spending time with you. Point out all the things bad for the child if you don't have access.

Unless there are real problems with your ability to care - I would suspect its a slam dunk and you'll get a temp order. As long as you ask for something reasonable.

**In my humble opinion, a midweek visit AND alternating week-ends, is more than reasonable.

LostFather 04-16-2011 02:58 PM

[QUOTE=rszalai;64710]So we had a case conference last Monday when everybody agreed that I have overnight access to my daughter every second weekend. It wasn't endorsed, it is not an order, this was we talked about during the whole time. We briefly discussed that the next overnight access will be on the Easter long weekend, when obviously I will not be able to pick up the child from school on Friday. The judge said that "I'm sure they will be able to work it out, if not come back and see me"
So it seems not. I just got a fax from my ex's lawyer, telling me that there will be no overnight access. Our last two access were overnight accesses, and the judge specifically discouraged any change in the access in the near future during the conference.
No explanation is given why the access was suddenly cut, so this is just a disgusting thing I hope will piss off the judge in June during our next CC, but I still want to spend the overnight with my daughter next weekend. What can I do? What did the judge mean when she said "come back and see me"? Is there any ways to notify the judge about this? Or should I file an emergency motion? (I don't have a lawyer)[/ QUOTE]

Did he remain seized on the matter?

BitHunter 04-16-2011 04:24 PM

Unfortunately it seems there is no such thing as "slam-dunk" at the family court. Our daughter feels/behaves completely well when she is with me, happy and chatty. The mother says that when the child gets back, she is kicking and hitting the mother. Whatever I find on the internet says that this is the sign of the child's natural resistance against the parent who cuts her off from the other parent. It seems our judge (an woman) thinks that I need less access. :( Anyways, she said on Monday that we keep the overnight accesses until the next case conference in June and then we will see how the child copes with the access. (and rejected to order the OCL to our case)
Then when I tried to discuss the upcoming access on Friday which falls to the long weekend, my ex's lawyer told me that only every second access will be an overnight access. (so one overnight in every 4 weeks.) This wasn't what the judge was talking about, what we all agreed and understood on the case conference.
Can I file an emergency motion? Is there any other way to ask the judge to deal with the situation?

holdthemaccountable 04-16-2011 05:14 PM

Do you know your rights regarding a case conference? Do you have a copy of Senior Regional Justice Durno's December 2 2004 Practice Directive/Memorandum regarding Case Confernces? It does not matter what is said in a case conference....didn't you know?????? It is all said...without prejudice.

You do not even have the right to get a transcript from the case conference. Did you know that?

Have you ever read Justice Durno's directive????

If you do not have a copy I would suggest you contact the Ministry of the Attorney General. I would send them an email asking for a copy of Regional Senior Justice Druno's December 2 2004 practice directive regarding case/settlement conferences. I believe the contact person is as follows:

Clare, Victoria
Phone: 416-212-4546 Email: victoria.clare@ontario.ca
Address:
Victoria Clare
Senior Policy/Business Analyst - OPERATIONAL SUPPORT
LuCliffe Pl
9th Flr
700 Bay St
Toronto ON M5G1Z6

Organization Hierarchy: by the way if you want to know how you find Government of Ontario employees go to www.ontario.ca then scroll down to the contacts telephone directory then type in the name. (for the above type in clare)

I would never appear in court unless I knew beforehand that there would be a transcript of the proceeding. In case conferences....if they make the transcript you don't have a the right to get a copy of it.

I would tape record my own court proceeding. Want to find out about recording your own court proceeding? Go to www.canadacourtwatch.com


Of course this is all just my opinion and in no way should be construed as legal advice.

BitHunter 04-16-2011 06:48 PM

Great, thanks. :( So basically what the judge says there worth less, than the voice recorder I recorded it. :(

Mess 04-16-2011 07:12 PM

Quote:

Originally Posted by holdthemaccountable (Post 64742)
I would tape record my own court proceeding. Want to find out about recording your own court proceeding? Go to www.canadacourtwatch.com

I would suggest disregarding any advice found on canadacourtwatch. Their interpretation is often wrong, in the case of recording your court proceeding they state that this is a "right" according to the Courts of Justice Act. The act says no such thing. A recording may be made if it has been approved by a judge. Duh. It's not a "right" if it requires a judge's approval.

Quote:

Exceptions
<!-- TRANSIT - HYPERLINK --><!-- .tribunaux judiciaires (Loi sur les), L.R.O. 1990, chap. C.43. -->(2)Nothing in subsection (1),
(a) prohibits a person from unobtrusively making handwritten notes or sketches at a court hearing; or
(b) prohibits a lawyer, a party acting in person or a journalist from unobtrusively making an audio recording at a court hearing, in the manner that has been approved by the judge, for the sole purpose of supplementing or replacing handwritten notes. R.S.O. 1990, c. C.43, s. 136 (2); 1996, c. 25, s. 1 (22).

holdthemaccountable 04-16-2011 07:29 PM

If it was me I would get a copy of the what the Regional Senior Justice Durno's December 2 2004 practice direction/memorandum and I'd get this ASAP. I'd contact the Ministry of the Attorney General via email and ask for a copy to be returned to me via email. I assume your in Ontario so such matters would apply to you. I do not believe such directions apply outside of Ontario.

From my experience it is helpful to know the rules of the game before playing the game. I have found that if the otherside knows the rules and you do not know the rules then one is at a disadvantage.

In this instance I believe that prior to going into such venues it helps if ones knows the rules prior to the proceeding.

Just email the Ministry of Attorney General staff and ask for the direction. Some people when they email a particular person at the Ministry cc a higher up. I believe Anne Merritt is the Assistant Deputy General of Court Services Division. I believe her contact info is

Merritt, Ann
Phone: 416-326-2609 Email: ann.merritt@ontario.ca
Address:
Ann Merritt
Assistant Deputy Attorney General - COURT SERVICES DIVISION
McMurtry-Scott Bldg
2nd Flr Suite 204
720 Bay St
Toronto ON M7A2S9

Court Services is there to help the public. Part of helping the public is providing the public with rules that are applied to the public. While I do not believe they are obliged to publicize such rules that are applied to the public I believe they are required to provide you with a copy once you become aware that such rules have been applied to you.

My understanding is that this direction says...

"In order to attempt to achieve the above noted purposes, parties, counsle, and the presiding judge will need to engage in a full and frank discussiion. Offers to settle should be reduced to writing, and may be incorporated into a court order. The full and frank discssion is always conducted "without prejudice"......"Any such transcript is solely for the use of the presiding judge...."

The Ministry has email so they should be able to promptly email you a copy.

The saying is fool me once shame on you fool me twice shame on me. Get a copy of the direction! and get it ASAP.

Of course this is all just my opinion and should not be construed as legal advice.

holdthemaccountable 04-16-2011 07:35 PM

Mess. Did you read Chief Justice Howlands Practice Direction?

Here is his direction.
Practice Directive (April 10, 1989)
”Subject to any order made by the presiding judge as to non-publication of court proceedings, and to the right of the presiding judge to give such directions from time to time as he or she may see fit as to the manner in which an audio recording may be made at a court hearing pursuant to s. 146 [now s. 136] of the Courts of Justice Act, the unobtrusive use of a recording device from the body of the courtroom by a solicitor, a party acting in person, or a journalist for the sole purpose of supplementing or replacing handwritten notes may be considered as being approved without an oral or written application to the presiding judge.” Chief Justice of Ontario W.G.C Howland



Even wikipedia talks about this. Here is the link.

William Goldwin Carrington Howland - Wikipedia, the free encyclopedia

"On April 10, 1989, Chief Justice Howland issued a historic Practice Directive to the Ontario Courts which reaffirmed the right of the citizens of Ontario to audio record their own court hearing under Section 136(2)(b) of Ontario's Courts of Justice Act. In his Practice Directive, Justice Howland stated that the rights of the citizens under section 136(2)(b) of the Act were to be respected by the courts without citizens having to make oral or written arguments. Many consider Justice Howland's directive to the courts as one of his most notable contributions to protecting the rights of self represented individuals before the courts. Even today, Justice Howland's practice directive continues to be used as a reference when audio recording equipment is used by self represented persons in their court hearings."

Mess 04-16-2011 07:44 PM

What does the phrase "in a manner that has been approved by a judge" mean to you? That is the qualification in the Courts of Justice Act, the direction from Justice Howland is in accordance with the act and this stipulation. You cannot use a recording device without the judge's approval. You have posted nothing that shows otherwise.

BitHunter 04-16-2011 07:47 PM

OK, I didn't know about this but I recorded the whole conference. Even showed the recorder to the judge, (just showing her that it is what I'm using to record the whole access with my daughter to avoid further false accusations) and she didn't say anything if it is approved or not.
But pretty much doesn't matter what she said it seems, my ex's f*cking lawyer screwed us up badly. If it goes like this for a year, by the time it ends my daughter will be a nerve wreck thanks for this "justice system".:(

holdthemaccountable 04-16-2011 08:14 PM

The Chief Justice of Ontario said....

"the unobtrusive use of a recording device from the body of the courtroom by a party acting in person... may be considered as being approved without an oral or written application to the presiding judge.”

Howland clarified what section 136(2b) meant. That is Howland pointed out that you have the right to audio record (if you are self represented) however the manner in which you carry out your right is subject to the Judge approving the manner. He/she cannot deny you the right to audio record he can however set the manner in which it is done. This is very reasonable. That is if you start to use large boom microphones to record matters this manner of audio recording obviously will not be permitted. You have to do it in an unobtrusive manner. You have the right to record but the judge has to approve the manner.

Howland also pointed this out he said "The unobtrusive use of a recording device may be considered as being approved."

Any comments

This is all just my opinion and should not be construed as legal advice.

BitHunter 04-16-2011 08:36 PM

Thanks, but please don't screw up my thread. In my own experience the judge last Monday didn't care if I recorded the whole conference or not. It is just completely worthless.

LostFather 04-16-2011 09:53 PM

Quote:

Originally Posted by holdthemaccountable (Post 64761)
The Chief Justice of Ontario said....

"the unobtrusive use of a recording device from the body of the courtroom by a party acting in person... may be considered as being approved without an oral or written application to the presiding judge.”

Howland clarified what section 136(2b) meant. That is Howland pointed out that you have the right to audio record (if you are self represented) however the manner in which you carry out your right is subject to the Judge approving the manner. He/she cannot deny you the right to audio record he can however set the manner in which it is done. This is very reasonable. That is if you start to use large boom microphones to record matters this manner of audio recording obviously will not be permitted. You have to do it in an unobtrusive manner. You have the right to record but the judge has to approve the manner.

Howland also pointed this out he said "The unobtrusive use of a recording device may be considered as being approved."

Any comments

This is all just my opinion and should not be construed as legal advice.

I agree with your posting. I would also like to see the.case law surrounding that issue as I.am sure there is some. Just because there is written law....doesn't mean that there cant be policy of interpretations of that law...the recording is one...the most current is to allow. The other example is both parents are equal...which we dads often find out...as if this was the case then a lot of us wouldn't be hear lol.

LostFather 04-16-2011 09:57 PM

Quote:

Originally Posted by rszalai (Post 64765)
Thanks, but please don't screw up my thread. In my own experience the judge last Monday didn't care if I recorded the whole conference or not. It is just completely worthless.

If you're referring to the usefulness of recordings...then i disagree with you. As it has become very useful tool, when judges make inappropriate or biased comments...in some cases when you get your transcripts....they've magically didn't make it to print.

holdthemaccountable 04-16-2011 10:50 PM

Rszalai thank you for clarifying that you would like the issue you raised discussed and not be side tracked.

Do you have a court order? As an aside if you do not yet have a court order when you finally do obtain one make sure it has specific times in it. Words like reasonable access mean little.

You state you should have acces this weekend? If you bring an emergency motion why should you be entitled to spend time with your daughter? Do you have evidence that you have been requesting as such and she has constantly denied you? Do you have a court order? That is why would you win such a motion? If not then both of you have access to the child and my understanding is then you can just take her for both of you have the right to access her.

In summary what is your situation?

this is all just my opinion and should not be construed as legal advice.

BitHunter 04-17-2011 08:59 AM

The current temporary court order says I have 7 hours biweekly with my daughter. during the last access we agreed to have an overnight from Friday afternoon to Saturday afternoon. On the case conference last week the judge sad that this must be in place until our next case conf in June, but it is not written down anywhere. Then my ex just notified me that she gives us the 7 hour access not the overnight during the next access. So it seems even if I start a motion, I'm screwed. Even an emergency motion woudn't be held in 4 days until the long weekend starts, if I need the motion, and there is no other way to go back and see the judge who were residing on our case conf. That's why my question was what the "you come back and see me" meant what she said at the end of the case conf.

holdthemaccountable 04-17-2011 09:53 AM

What do you have in writing?

First thing on Monday morning I would write the opposing lawyer(ie send by fax, don't forget to get the fax confirmation and say"As you know during the last access, (put in dateXXXX) you had agreed that this weekend, Easter weekend, that my daughter would have overnight access with me, her father. Now just over a week before Easter, on (put in dateXXXXX) as per your fax, you have informed me that you are reneging on your word and harming my daughter by denying her the right to spend overnight with me during the Easter weekend. This is I believe mean spirted high handed behaviour on your part and I resent you using my daughter in such a despicable manner and as a pawn to harm me. I think your behaviour is disgusting.

Not only should my daughter be allowed to be raised by her father, especially during religious holidays but also as I am sure you would have been aware I had made plans for my daughter now these plans due to your reneging have been shattered for her. I do not appreciate you purposefully and knowingly harming my daughter in this manner and I believe the Judiciary will take a dim view of your actions. As you know I think it is in the best interest of my daughter that she has maximum contact with both her parents and as you know I still and continue to desire that this fundamental principal be upheld and that my daughter eventually start spending 1/2 the time with me and 1/2 the time with her mother. That is it is in her best interest that she be equally raised. Do not think that by your using such high handed tactics this will aid you in setting a permanent court order that wrongly restricts my being able to raise our daughter on an equal time basis."

You have to start to get stuff in writing!

As an aside I trust you know about the 40% rule? This rule is key to every single divorcing parent. Please tell me that you are aware of this so that I will refrain from going into details about it.

I would then contact the court clerk and ask how to do an emergency motion. I think its called ex-parte.

Of course this is all just my opinion for I am such making it up on the fly and have no idea what a person would do in such a circumstance and this in no way should be construed as legal advice or in fact any type of advice that should be listened to let alone read.


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