Determination of urgency conditions for Family Law Motions

[kidsRworthit]

Family Law Rule 14(4) provides that a motion can’t be served or heard before a case conference has been held unless it is a decision of hardship or urgency or in the interests of justice not to require a case conference. Note that an urgent motion is not necessarily synonymous with a motion without justice. Both should be infrequent but the test found Family Law Rule 14 (12) to justify proceeding without notice is very stringent.

Test met: immediate danger of the children’s removal from Ontario, immediate danger to the health and safety of the children, or irreparable harm, or solid evidence of urgency from the children’s perspective; abduction, threats of harm, dire financial circumstances, or financial hardship to the children documented by particulars of their unmet needs.

Test not met: mere fact of being in receipt of social assistance, mere fact of denial of access, anticipatory breach of parenting regime based on "fear" without foundation, issues of timing or convenience personal to, or caused by the moving party, mother's request to move children; alleged urgency is her need to meet her employer's notice requirement, mother's request for child support brought on the basis that father had stalled and delayed for 1.5 years already.
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[arabian]

I don't see the relevance of your son's hockey interest in here.

Really, get a grip. 1% of 1% of kids in minor hockey go on to play in the NHL. You'd be better to focus your energy, time and money on plans for your son's education.

re-read what you have posted^ - do you seriously think your dilemma over your son's hockey fits into this???

[blinkandimgone]

Curious, why are you shitting on the OP for what his ex is doing?

[arabian]

It takes two to tangle blink and one to stop the nonsense.

I have a totally different view than you on this obviously. I think Family Court and emergency motions should be used for serious issues.

[blinkandimgone]

He isn't claiming his issues fall into the above described category, she is - she's the one that called the urgent hearing, he`s just shown how it DOESN'T meet the criteria.


It isn't about hockey, but the fact that mom is using hockey , something the child clearly enjoys, as a means to control or initiate a change in cistody. A nine year old doesn't have the capacity to understand the total implications of agreeing to play hockey here or there, he just wants to play hockey and has no idea that choosing where to play will colour where he lives, how much he'll see dad etc. Mom is trying to force the kid to choose WHERE to play hockey as a means to shift the child to the community she decided to move to.

What's she's doing is wrong, and it isn't so trivial as 'hockey'.

[arabian]

I think this is a sad situation. Kid wants to play hockey and parents are at odds as to where he plays. The fact that it has ended up as a court issues is a total waste of court resources. IMO both parents should be censured as they couldn't resolve this issue between themselves.

I don't feel this is just as the OP has stated. Obviously these two people are highly charged and passionate about their future NHL star. The OP has clearly stated he feels his son should be playing in competitive leagues so son will go to NHL. The way I'm reading the post this isn't just the mother - it's both parents who are contributing to the cess pool.

[WorkingDAD]

I think this is a sad situation. Kid wants to play hockey and parents are at odds as to where he plays. The fact that it has ended up as a court issues is a total waste of court resources. IMO both parents should be censured as they couldn't resolve this issue between themselves.

I don't feel this is just as the OP has stated. Obviously these two people are highly charged and passionate about their future NHL star. The OP has clearly stated he feels his son should be playing in competitive leagues so son will go to NHL. The way I'm reading the post this isn't just the mother - it's both parents who are contributing to the cess pool.

If every parent think that why bother there is only 1% as you said we probably would not have even NHL.

Just as a side note: If parent think that kid can make it and willing (and able) to put effort and resource in to it kid have a chance - even 1% as you suggested. Otherwise he will not have even that 1% chance.

And yes I agree with blink - it has nothing to do with hockey on mom's part. Try to read between the lines...

WD

[arabian]

I said 1% of 1% make it to NHL. I cited this because there is such pressure put on young people by their parents to fulfill the desires of their parents. I just find it very difficult to accept that the issue is before a judge. 9 yr old's hockey issues in family court? Ridiculous in my opinion. Parents should be forced to work these issues out without taking them to court. Yep one court room you have a couple and their kid fighting about where kid plays hockey and in the next court room you have a kid who has been abused by a parent and is being placed into a safe home.

[kidsRworthit]

He isn't claiming his issues fall into the above described category, she is - she's the one that called the urgent hearing, he`s just shown how it DOESN'T meet the criteria.


It isn't about hockey, but the fact that mom is using hockey , something the child clearly enjoys, as a means to control or initiate a change in cistody. A nine year old doesn't have the capacity to understand the total implications of agreeing to play hockey here or there, he just wants to play hockey and has no idea that choosing where to play will colour where he lives, how much he'll see dad etc. Mom is trying to force the kid to choose WHERE to play hockey as a means to shift the child to the community she decided to move to.

What's she's doing is wrong, and it isn't so trivial as 'hockey'.

Precisely, well worded and very accurate: Thank you blinkandImgone!
The Justice dismissed the urgent motion initiated by our son's mother, stating it did not meet the urgency test.

Justice also noted NOM stated mom is seeking sole custody and decision making for children, and asked hockey focused counsel of mom if this was correct? Her counsel agreed. Hockey is evidently being used ...as a means to shift the child to the community she decided to move to in August.

From the beginning, I have stressed that a balanced childhood is essential for any child and I oppose competitive hockey as it requires a 4 or 5 times weekly commitment from the child. This leaves the child unbalanced due to the extensive time and energy devoted to the competitive hockey team.

I have taken the Hockey Canada Speak Out course - highly recommended if one is volunteering in organized hockey in any capacity. I am aware of the 1% of 1% number making it to NHL. The NHL "dream" comment came from the mouth of my son. The OP's bf played in the NHL for a couple games and then had health issues and couldn't return. I know the reality, and have never even considered it seriously or promoted it AT ALL.

This issue is truly one of control: sole custody claim by mom for both kids. Mom is using hockey (our son wants to play in my new community = against hockey Registrar's rules of habitual school area) and dad's decisions which are dangerous to kids health as basis for sole custody claim.

Now, I have to defend myself at a mid November Case Conference of several allegations painting me as a father unfit to maintain 50/50 shared parenting and joint decision making of our two children (9 and 11). This status quo has been followed for 13 months, and since the kids had a 2 minute walk between their parents houses, worked extremely well. Present drama followed mom's decision to move 1/2 hr. away from rooted community and habitual school area = hockey registered area (3rd yr.). I cautioned her on implications to kids on move, but was assured she and bf would take care of all driving to school, sports, kids' extracurricular events.

Her counsel suggested a 4-way meeting in efforts to address issues and avoid CC and perhaps Settlement Conference. I said I would discuss it with my counsel. I remain cautiously optimistic, however, judging by the OP's prior actions: a. refused to sign final, final SA agreement after 2 thorough mediation sessions, dual counsel approval and many revisions, b. self-help action of removing our son from school on my parenting week (to have him attend competitive hockey tryout in her new community) c. request for CC for custody of children, and d. urgent Notice of Motion requesting custody of children and sole hockey and activity decision making.

I am forced to pursue legal defence position to fight for my kids.

[Tayken]

Family Law Rule 14(4) provides that a motion can’t be served or heard before a case conference has been held unless it is a decision of hardship or urgency or in the interests of justice not to require a case conference. Note that an urgent motion is not necessarily synonymous with a motion without justice. Both should be infrequent but the test found Family Law Rule 14 (12) to justify proceeding without notice is very stringent.

Test met: immediate danger of the children’s removal from Ontario, immediate danger to the health and safety of the children, or irreparable harm, or solid evidence of urgency from the children’s perspective; abduction, threats of harm, dire financial circumstances, or financial hardship to the children documented by particulars of their unmet needs.

Test not met: mere fact of being in receipt of social assistance, mere fact of denial of access, anticipatory breach of parenting regime based on "fear" without foundation, issues of timing or convenience personal to, or caused by the moving party, mother's request to move children; alleged urgency is her need to meet her employer's notice requirement, mother's request for child support brought on the basis that father had stalled and delayed for 1.5 years already.
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Please see the sticky posting regarding what defines "urgency" before the court which contains the jurisprudence:

http://www.ottawadivorce.com/forum/f...e-court-13291/

[Tayken]

Justice also noted NOM stated mom is seeking sole custody and decision making for children, and asked hockey focused counsel of mom if this was correct? Her counsel agreed. Hockey is evidently being used ...as a means to shift the child to the community she decided to move to in August.

Known as "forum shopping" and many parents do this and attempt to leverage the court to justify it. You can find a lot of information on "forum shopping" on this site. It is a particular area of interest that I post about quite often.

This issue is truly one of control: sole custody claim by mom for both kids. Mom is using hockey (our son wants to play in my new community = against hockey Registrar's rules of habitual school area) and dad's decisions which are dangerous to kids health as basis for sole custody claim.

I agree. Any parent filing an "emergency" (urgent) motion before the court seeking sole custody for something like this is demonstrating to the court their "controlling" patterns of behaviour. It is also known as "legal abuse" in other circles.

Now, I have to defend myself at a mid November Case Conference of several allegations painting me as a father unfit to maintain 50/50 shared parenting and joint decision making of our two children (9 and 11).

Again. NO SUBSTANTIVE ISSUES (CUSTODY AND ACCESS) CAN BE ORDERED BY A JUDGE AT A CASE CONFERENCE BY WAY OF THE RULES. So, you don't have to "defend" yourself at a CC. You should be working towards settlement at a CC and requesting technical orders (i.e. financial disclosure).

Read up on this site and the internet on the PURPOSES of a Case Conference. Don't go in shotgun style it will only lead you to a pre-emptive motion on both parties on a 7 day notice from the CC and a massive explosion of affidavit evidence and nightmare.

This status quo has been followed for 13 months, and since the kids had a 2 minute walk between their parents houses, worked extremely well. Present drama followed mom's decision to move 1/2 hr. away from rooted community and habitual school area = hockey registered area (3rd yr.). I cautioned her on implications to kids on move, but was assured she and bf would take care of all driving to school, sports, kids' extracurricular events.

Mom has NO excuse or evidence that the school and/or hockey should change. It is only 1/2 hour away from the current habitual locations. She chose to move and she has to deal with that fact. You basically state the facts that it was her decision.

Her counsel suggested a 4-way meeting in efforts to address issues and avoid CC and perhaps Settlement Conference. I said I would discuss it with my counsel. I remain cautiously optimistic, however, judging by the OP's prior actions: a. refused to sign final, final SA agreement after 2 thorough mediation sessions, dual counsel approval and many revisions,

Your point (a) is inadmissable in court and you cannot, should not and could be found in contempt or have the materials struck from the record should you included in any materials filed on motion or for trial. This is bound by Rule 18 of the Family Law Rules.

b. self-help action of removing our son from school on my parenting week (to have him attend competitive hockey tryout in her new community)

Minor issue that a judge will just do a hand slap on. It won't "win" you anything other than having to watch a judge tell them to stop the stupidity.

c. request for CC for custody of children,

She can request that the judge order that the moon is made of cheese at a CC. The JUDGE cannot make an order at a CC regarding a SUBSTANTIVE ISSUE THAT CANNOT BE ADDRESSED AT A CC. CUSTODY AND ACCESS CAN ONLY BE AGREED UPON WITH CONSENT OF THE BOTH PARTIES TO BE ORDERED AT ANY CONFERENCE PER RULE 17 OF THE FAMILY LAW RULES.

and d. urgent Notice of Motion requesting custody of children and sole hockey and activity decision making.

Now this is "bad faith" on the part of the other party and should be identified as such.

I am forced to pursue legal defence position to fight for my kids.

No. No you are not. This is incredibly the WRONG mentality to have and you continue down that path and you will certainly lose custody of the children and access.