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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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  #11  
Old 03-01-2018, 10:01 AM
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Tayken Tayken is offline
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Originally Posted by OrleansLawyer View Post
They should know, at least in general terms, the evidence that will come out.
In "most" situations I would agree. But, in a situation of high conflict... Only the unknown knows. Anything before the court is "high conflict" generally. There may be a rare case of mobility where it truly is parents needing the court's assistance.

But, the majority of resolutions don't require an application to be even filed if both clients are reasonable.

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Originally Posted by OrleansLawyer View Post
The parties should have exchanged draft Orders for what they are seeking, along with offers to settle.
Most cases that end up in court don't follow the reasonable path. Generally, this is absent in most first appearances. Maybe it will happen after a case conference but, the damage is done and the APplication and REsponses are filed full of nonsense.

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Originally Posted by OrleansLawyer View Post
If the Respondent is seeking sole custody, primary residence, and spousal support based on an imputation, the Applicant should be able to predict the evidentiary foundations of the Respondent's positions on those issues.
Those are the basics. But, the applicant has to bear their soul on first go. So if they are requesting those things based on their belief that the respondent is "abusive" they have to play that card. In the alternative, if the claim is not made on anything like "abuse" or "violence" then, most people wouldn't go to court.

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Originally Posted by OrleansLawyer View Post
By having a reasonable guess as to what the Respondent's evidence will be, you can address it first.
Hard to do. As well, clients are not truthful with their lawyers. 9 times out of 10 the applicant has a wall to climb especially when making a claim against 24.(4) of the CLRA.

See my main thread I just posted from Justice Spies... Talks to my point about being the respondent way better than being the applicant than I could. Mom went in all guns blazing and dad was reasonable and destroyed the arguments.

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Originally Posted by OrleansLawyer View Post
Respondent wants sole custody because of abuse? Bring evidence about the circumstances, or whether it occurred, witnesses who can downplay the situation, et cetera.
Easier to respond to allegations of abuse than it is to bring them in defense as the applicant.

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Originally Posted by OrleansLawyer View Post
I am speaking generally about the conduct of the trial. Ex parte motions should be rare and only occurring in special circumstances.
Emergency motions, short service, etc... are all very common in the GTA. Too common.

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Originally Posted by OrleansLawyer View Post
If a lawyer cannot articulate a theory of the case on each issue in advance of the trial they are either not prepared or they are incompetent.
Majority boil down to basic "theory" which is a rubber stamp these days:

The other party is abusive.
My client is the "primary parent".
The other party is not involved with the kids.

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Originally Posted by OrleansLawyer View Post
The push for ADR has done a lot of good work in bringing families to resolutions outside of court. The downside has been that trials are rare in family cases. I call this a downside, because there is a significant proportion of family lawyers - including those with a decade or more of experience - who have never conducted a trial.
Paralegals will take the load of the reasonable people needing help to settle and lawyers can focus on the complex high-conflict situations. That is if the LSUC gets their head out of their ass.

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Originally Posted by OrleansLawyer View Post
The backdrop to every negotiation needs to be "what happens if we do not settle". The answer is that everyone will spend a lot of money and a judge will make the decision. Instead of going the long route it is important to consider what that decision is likely to be, and allowing negotiations to be influenced by it when there is otherwise an impasse.
All wise advice... I can send you a list of lawyers who all need the LSUC to remind them of this good practice... Too much sharp practice in Family Law in the GTA ...

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Originally Posted by OrleansLawyer View Post
If the lawyers try to be social workers instead of barristers they risk getting caught up as cheerleaders rather than acting as counsels.
Negative Advocates... William Eddy talks to this. Happens a lot in high-conflict cases.
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  #12  
Old 03-01-2018, 10:21 AM
rockscan rockscan is offline
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To Orleans Lawyer’s points...yes and no. What happens if the other side is unreasonable and asking for things that are not even legal? Or they make ridiculous claims and have no proof? Or they add items as exhibits but they dont relate or make sense or actually make themselves look bad? This is what we are dealing with. We know what the ex wants based on her OTS but theres no precedent for any of it and she has failed to provide proof of any of her claims (ie an internet article on the cost of tuition in the future). How do judges approach that especially when the whole case is a complete waste of time?
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Old 03-01-2018, 06:04 PM
OrleansLawyer OrleansLawyer is offline
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Quote:
What happens if the other side is unreasonable and asking for things that are not even legal? Or they make ridiculous claims and have no proof?
Every claim functions like this:
First, evidence is brought.
Second, the law (as it applies to the facts proven in evidence) is applied.
Third, you have a result.

If the other side is making a claim that does not have a legal basis it will fail. Make sure to have researched the issue. If they do not have the evidence to support their claim, martial evidence in defence; ideally, make an offer to settle, go through discovery, then crush them at a summary judgment motion or trial.

I might sue you for $1,000,000 because you are beaming negative energy into my brain while I sleep - but because there is no law against it (I need to show damages), or evidence for it, thus my claim will fail.

Quote:
they add items as exhibits but they dont relate or make sense or actually make themselves look bad?
If a motion - point out the irrelevance or ask for them to be struck. If at a trial, contest their admission.

The issue is more difficult at a motion, however a good judge will ignore the garbage.

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How do judges approach that especially when the whole case is a complete waste of time?
They deal with each issue one at a time. If someone is making unsupported or impossible claims they will damage their credibility.

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To Orleans Lawyer’s points
My points in this thread are focused on results at trial, not throughout the case. Applicant/Respondent are not particularly important before trial since either party can bring a motion; the moving party on a motion is the equivalent of the Applicant at trial.
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  #14  
Old 03-01-2018, 06:39 PM
rockscan rockscan is offline
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Thanks. We are waiting for the ex to file for a case conference. Despite what was said at the DRC, they still think they are entitled to a pile of things with no legal basis. Their OTS included claims for things with no jurisprudence so the CC should be interesting.
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  #15  
Old 03-01-2018, 09:10 PM
kate331 kate331 is offline
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Rockscan, you would think that any reputable lawyer would tell them this. I get that lawyers need to make $$$, but you would think Judges would wise up to the lawyers that partake in litigation with no legal basis and in the end hurt their reputations and their clients cases.
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  #16  
Old 03-02-2018, 07:06 AM
rockscan rockscan is offline
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So far she is “self repped” but has someone helping her. Plus we think shes doing it to make him spend money on a lawyer.
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