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Procedure to amend Motion to Change

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  • Procedure to amend Motion to Change

    I began a Motion to Change in February 2017. At that time I had legal representation. Since December 2018 I have been representing myself.

    In my original Motion to Change I was not seeking custody. I now want to seek custody.

    What is the process for this? I understand that I must fill out an amended Form 35.1, but is there any more that I should be filling out at the same time?

    Absolutely none of my evidence has been submitted thus far. The lawyer who was representing me did not submit half of what I asked him to.

    I need my evidence (text messages, access visit notes, photos...) to be on record ASAP.

    Do I add an affidavit with exhibits along with the Form 35.1? If not how do I add the things I want in there?

    To amend my Form 35.1 do I need to have the other party consent to the amendment? If so, is there a form for that?

    I have searched and searched for the answer to the above questions but cannot find the answer. I understand the process for beginning a Motion to Change but my Motion was brought almost 3 years ago.

    Please help me!

  • #2
    You don’t submit evidence into the Continuing Record unless it’s in support of a particular motion.

    Motions to change often get set down for trial, which is when you will provide your “evidence”. What is your next step? Case Conference, Settlement Conference?

    It sounds like your lawyer knew what he/she was doing, and there is a reason they didn’t submit it.

    Comment


    • #3
      Our next court date is Assignment Court...for which I also haven't been able to figure out what is expected from me.

      My Motion to Change included text messages as exhibits but that was way back in 2017. Can I add more recent texts to it? A lot has happened since my motion to change was filed so I'm wondering if I can give an update by amending?

      Trial would be great at this point since the other side has been stalling since January. We're now waiting for a response from the OCL as to whether or not they will represent my children so I'm assuming that my ex's lawyer will be asking to have the assignment court date traversed to the next available date, which isn't until January 23rd.
      Last edited by Mummaa222; 11-22-2019, 12:46 AM. Reason: Spelling

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      • #4
        There is no value in submitting more evidence into the CR if you’re waiting on OCL involvement. Once the matter is set down for trial then you can plan out how you intend to bring your evidence to the court.

        Putting it into the CR just tips your hand with no advantage to you.

        Comment


        • #5
          Originally posted by Kinso View Post
          There is no value in submitting more evidence into the CR if you’re waiting on OCL involvement. Once the matter is set down for trial then you can plan out how you intend to bring your evidence to the court.

          Putting it into the CR just tips your hand with no advantage to you.
          Ok, thank you. So is the amended Form 35.1 the only thing I need to do to seek custody? And do I need to ask the other party to consent before I can file it?

          Comment


          • #6
            No. A Form 35.1 is just in support of your claim for custody, your pleading (response to motion to change, potentially) will be where you put your claim.

            You really need a lawyer. It’s a lot more than picking the right form.

            Comment


            • #7
              Originally posted by Kinso View Post
              No. A Form 35.1 is just in support of your claim for custody, your pleading (response to motion to change, potentially) will be where you put your claim.

              You really need a lawyer. It’s a lot more than picking the right form.
              Getting a lawyer isn't an option for me...there are 3 law firms where we live and none can take my case.

              The Motion to Change is mine so I wouldn't be responding to it.

              Family law Rule 11 says: "CLAIM FOR CUSTODY OR ACCESS
              (3.1) If an application or answer is amended to include a claim for custody of or access to a child that was not in the original application or answer, the amended application or amended answer shall be accompanied by the applicable documents referred to in rule 35.1. O. Reg. 6/10, s. 4."

              This is why I'm asking about Form 35.1. I didn't ask for custody in my original...now I want to ask for custody and the judge said in his last endorsement that I would be "amending to seek custody".

              Hopefully someone has the answer to this because I'm stumped!

              Comment


              • #8
                You might need directions from the court pursuant to Rule 1(7).

                You could bring another motion to change (this time custody) and then seek to merge the cases, but the counter staff will probably reject the paperwork. The Rules don't expressly contemplate amending a motion to change.

                In short, next time you're in front of the judge ask for directions on the matter. In the meantime it can't hurt to fill out a Form 35.1 and notify the other side of your intention, that way they can't claim prejudice.

                Comment


                • #9
                  Your case is too complex for self-rep. The judge at the last Appearance didn't even know what to do and followed the other side's lawyer because they at least had law to rely on (judges will NOT make common-sense Orders, they need the backing of a law they cite). Don't use a local lawyer, pay for an out-of-town lawyer (in your case I would actually be going to a major firm in Toronto or Ottawa and looking for Senior Counsel, despite the distance, as you will need their legal research department - this is NOT a case for a small firm). You don't need to have too many in-person meetings and you would only need to pay fo their travel costs for the one appearance. So the total cost may be a lot cheaper than you think - it may be a high upfront cost vs a less experienced lawyer nibbling away at you for years.

                  It would have been a really, really bad idea for you to oppose the OCL - that you even thought to tell the other side that you were opposed to the OCL shows how much legal guidance you need. The txt messages she sent are now irrelevant, she said "my bad" in court and was grieving; you can't relay on them again. You are focusing on the wrong things that would motivate a judge to rule in your favour. Not having a lawyer now is akin to trying to cure your own cancer without a doctor. Sometimes we *need* to pay the experts. A lawyer may cost a lot right now, but NOT having a lawyer is going to cost you a LOT more, both financially and potentially with your relationship with your children.

                  Hopefully with you having proper representation the other side will be willing to settle out of court, however with the big potential payday (children's money, CS from you, and the money of your late ex-husband) they have a LOT of rea$ons to want custody of children who are not biologically theirs.

                  Good luck, this is a horrible situation for you to be in and I hope you have a lot of support as you go through this process.
                  Last edited by tilt; 11-23-2019, 11:16 AM.

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