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kelly 11-05-2010 10:55 AM

Can I apply for an application to dismiss Respondents Motion to Change
I am self representing in this matter. My case is similar.

I am hoping you can help. I am now involved in a motion to change filed by the respondent. He has been in arrears for over 10 years and has dodged addresses, been arrested on defaults, you name it. Now that he has surfaced, I have brought the matter back in front of the courts. He filed a motion to change basing it on the child support arrears be lessened, no further ongoing support however both children are in post secondary school. I am seeking an order for retro, extra ordinary expenses, child support arrears etc. Due to his motion being filed, I had to file a motion to change as I did. Our first court hearing was yesterday. As he had not complied with the original order of 2002 (he owed me court costs), I asked for his motion to be dismissed. As well, he had not submitted the correct financial documents (assessments, reassessments). the court awarded me costs for yesterday, as his lawyer showed up and they were not prepared, and my request for his order to be dismissed was upheld, however he must submit all documents and fullfill the requirements of the 2002 order by November 25th which is the next hearing date. I am to receive the court costs and his laywer is to forward the receipt to the courts prior to the court date showing that this amount has been paid. Now that I have said that, if I have not heard from him or his laywer by 2 days prior to the case, I want to file an application to dismiss his application all together and have the judge base the case on my material only. Can I do this and what do I need to do to complete this? Your help is greatly appreciated.

Epona 11-05-2010 11:21 AM

I don't think you can have his motion dismissed. He has a right to present his version to the Judge but he and his lawyer do have to follow the Rules, and they are hoping to walk all over you because you are unrepresented.
If your ex has been missing for ten years, he may a valid argument to have the arrears lessened as his income may have varied (probably has) year to year. So you'd be basing his arrears on the agreement/court order filed and he'd be basing the amount owing on what he should have been paying based on his fluctuating income over the years. It could very well be that the Judge would agree with him and the arrears will decrease.
The unpaid S.7 arrears my ex owed me based on what he had informally agreed to pay came to about $1,700 and was rapidly whittled down to $54 when the Judge looked at his income (he became unemployed just before I started court action and I didn't know he was unemployed).
So depending on the figures, the Judge may favour his position that the arrears isn't as high as you believe. And learn from me, if you persist that he owes what you believe and don't relent, you may end up paying court costs and not getting the arrears payments you hope for.
When you say "first court hearing" do you mean first case conference? Because you don't meet the Judge during the first court date.
Advise your ex in writing via his lawyer that you will re-calculate the arrears owing once you have received copies of his ITR and Assessments and base the calculations of his line 150. And if you don't receive a response from them, file a copy of the letter in an Affidavit (general) with court, after serving a copy with them.
That's my advice -- it would show that you are trying to be fair and reach a solution but they are being un-cooperative. It might help you.

kelly 11-05-2010 11:28 AM

When he submitted his motion to change, he actually submitted his work records showing that he has been making over 70,000 for the past 10 years, he has owned a private business as well but it closed. He also stated he makes overtime. When I submitted back my respond to his motion, I outlined all the facts, his arrest dates, his statement of arrears, his lack of financial disclosure, etc. Yesterday we were to meet in front of the clerk to set up the case conference date. I will add that in my material I submitted, I noted the fact that he had not completed the cost order from 2002 which in the order states he will not be allowed to enter any further motion material until that has been paid and proof of payment sent to the clerks office at the court. As well, I had added I had not received his correct financial information. the clerk we met in front of was nice, and the duty counsel was the one who said that I should be receiving costs for the time as he was fully aware that this date was to ensure all material was in order so we could set the 1st case conference date. So now, it has been adjorned until November 25th. During this time, I must receive the payment, his laywer is to provide me with a document to sign for proof to submit to the clerk, as well as his assessments, reassessments. I have tried to bring this case back to court 4 times. All four occasions, he did not show.

kelly 11-05-2010 11:32 AM

Also, against his 70,000/year income, I was making 28,000 - 38,000, supporting two children

Epona 11-05-2010 12:19 PM

So, you still don't have a date for the first case conference?
Your ex didn't appear for the court date yesterday, but his lawyer did?
My advice -- keep your submissions to court as brief and relevant as possible. The Judge doesn't want to read through pages of Affidavits and exhibits.
Basically you want $x for this, $y for that for a total of $x+y. And show "This is how I determined those figures." I don't think his arrest dates etc. are relevant to determing the amount owing (but I could be wrong).
You have tried taking him to court four times previously and got nowhere? I believe if he does not show, court can proceed even if he isn't participating, though it's his best interests to be there. The court can award you what you are seeking without his participation, but I think the court decides whether or not to proceed. I don't know if there are any forms to file to ask the court to proceed without the other non-responding party. I realize it's a "pain" sometimes going to FLIC, but sometimes that's your best option or a half hour consult over the phone (it's charged to your phone bill).
The court let us proceed even though exes lawyer had not filed the relevant documents for the first court date. In fact his lawyer (and Deputy Judge also) failed to file the documents throughout the entire process.
Good Luck to you. :-)

kelly 11-05-2010 12:30 PM

That is correct. Yesterday was the day we were to set the 1st Case Conference date however as they had not followed the process, they would not allow them to schedule a case conference date until they had complied with the order and submissions due. In my affidavit, I have submitted the arrears, based on what he made, what I was underpaid and the total, same for extra ordinary expenses, I listed them out, with a total at the bottom and same for Retro,,totall at the bottom. have been to court 4 times with FRO, bench warrant was issued due to his non show and he has been arrested on default hearings. Now, he was back in court in June, he did show for this, made a payment plan and if he did not follow through, he would be incarcerated. Come August, the date that was scheduled for an update, he did not follow through, was incarcerated and filed a motion to stop the support, ongoing support, arrears, etc. He is working fulltime, I have used his sworn material showing that even though he was working, support payments were non existent, proving he jolted the system..Do you the think the courts will find in my favor?

kelly 11-05-2010 12:35 PM

I actually asked the clerk to dismiss his motion yesterday as he had not paid the required court costs persuent to the 2002 order. Had I not done this, I would not have gotten those costs. As well, I may receive costs for yesterday as noted by the clerk. His laywer seems to be quite lazy at their end. Now he has to continue taking this back to court, his client paying which is of no concern to me. I am hoping it will exhaust the payor and he will self represent, at which time he wont know what hit him.

kelly 11-05-2010 12:41 PM

Interestingly enough, whenever he has been incarcerated? He has been able to bail himself out, a few days later. One time for the amount of 16,000, one for 7,000, and the list goes on. So the money has been there. Shows clearly on his statement of arrears that payments have been non existment while he files a motion showing he has been making 70,000 for the past 10 years, and had a business. Am I the only one that sees this as a really bonehead move on his part? It just justifies my case that he is fradulent. His tax return showed that even through his sworn material showing his makes 34.00/hour, 40 hour work week plus overtime, he made $1,262.00.

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