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  • Agreement to waive trial and go to settlement

    On Wednesday, I attended court with the understand that it was a case conference, to be then told by the Judge it was a settlement conference and that the judge wanted to make a final order.

    I was taken off guard by this as my ex had not filed any of the required paperwork on time (being that she is the applicant) and I had no idea she was even willing to settle or what she wanted.

    I refused to make any decision on the spot, as the judge wanted. So the Judge has asked that my ex and I prepare a settlement by passing it back and forth, that she can then turn into a final order in January.

    During the proceeding, I had agreed to waive trial and allow the judge to create a final order after my ex and I have hashed out what we want. The problem is that I don't believe my ex has any intension of settling. I don't believe she takes any comfort in the OCL report or CAS report that basically says my parenting of our son is reasonable and frankly I don't have any faith in her ever being able to put our sons needs first.

    I am still not really sure what I want to do, I just wanted to know what my options are. I plan to send my ex an amended settlement offer this week but I still need to know if it's possible to file a motion or something with the court to advise them that I no longer agree to waive trial?

  • #2
    With my limited experience, once you agree to something with a Judge, you cannot change your mind, and if you do express doubts as to your previous "agreement" then the Judge becomes ... annoyed with you. Though I believe Judges are supposed to be impartial, they are human and will treat you differently if you get them annoyed and won't be as impartial. Judges do put you on the spot. They have a lot of cases to deal with and don't have time to allow the parties to think things over in court. It's just an overburdened system. And some Judges do NOT like unrepresented litigants and just don't have any patience with them.

    Whether your ex has any intention of settling with you won't matter in the end. Because if the two of you can't agree, then the Judge will make a decision and chances are one or both won't like the Judge's decision, so it really is best for the couple to negotiate and communicate between court appearances.

    It's not unusual for the other party to not file their paper on time and try to file documents they shouldn't (like a Mediation Report they parties did not agree could be filed). If you have the same Judge I had, then I feel for you, but then she decided the hearing had become a trial and nobody bothered to advise me of that little detail.

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    • #3
      Did you "waive trial" formally somehow and put it in writing? I didn't think you could do that. Is there some prescribed form for that?

      Trial is your leverage to get her to settle. The OCL report will be the driving nail and it will be tested at trial. The fear of a trial is what's going to motivate her a** to settle.

      I'm guessing you informally told the judge in the settlement conference that you and your ex would hash it out over the next couple of months and you would come back and put the whole thing to bed at the next conference, but that you haven't really formally waived your right to trial.

      Am I wrong?

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      • #4
        Originally posted by Epona View Post
        ...but then she decided the hearing had become a trial and nobody bothered to advise me of that little detail.
        I just don't understand that. A trial is a very formal proceeding and there is a lot of pre-cursor proceedings leading up to trial. A judge can't just decide to turn a conference or a motion into a trial. It doesn't work that way.

        With all due respect, are you sure that's what happened?

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        • #5
          I am absolutely certain it happened that way. I got a copy of the Judge's endorsement from September. It it written "hearing" on Nov. 1st. Yet when I show up, I'm told it's a Trial. And NOBODY advised me it was changed to a Trial. The file clerk had looked at the case file with a furrowed brow and mentioned it was strange. Duty Counsel thought it was odd too. After observing how that particular Judge treated other unrepresented litigants (she has NO patience for them), I had a pretty good hunch that if I said I wasn't ready for a trial, she would have charged me court costs "for wasting the court's time" (as she had done to others during case conferences) and adjourned it for another month or two. Despite the smile on her face, her eyes were cold. I'm telling ya, that Judge had an immediate dislike for me when she first saw me. Judge's aren't supposed to be like that, or at least I don't think they are.
          There is something wrong with my trial, because the hearing became a trial without anything in the case file to indicate it had changed. Yet exes lawyer, who is also a Deputy Judge (in Small Claims Court) at the same court house, knew about it becoming a trial.
          I've got copies of the Endorsements and Trial Management -- it shows First Court Date, Case Conference (adjourned for mediation), Case Conference (date changed at Judge's request), Case Conference (adjourned for hearing), Trial.

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          • #6
            In my case, the judge wrote in her endorsement that we had 'agreed to waive the right to trial'. Like I said, not sure what that means but I want to know if there is any chance that I can change my mind. I really feel that I was manipulated by my ex's uncontrollable crying in the court room and the judge putting me on the spot.

            Comment


            • #7
              It sounds like, whether you did or didn't, the Judge says you have agreed to "waive the right to trial" and that's it. I wouldn't try to change it, because Judges don't like it when parties change their minds. If it's on the record that way, then I guess you have to accept it. (but that's just my recent experience, others may have different opinions)
              I don't think your exes uncontrollable crying will have had any effect on the Judge -- they are used to people crying in family court (hence the boxes of tissues at the desks), and are probably immune to it. They are probably annoyed by it more than anything.
              Judges will put you on the spot -- they have many cases to deal with and don't have the time to allow people to think things out properly in court. You have to be prepared to think on your feet and consider all the possible scenarios before entering the court-room. Decide what you can live with and what you'll fight for. And if you're going to fight, make sure it's for a substantial amount of money.
              The $1,700 unpaid S.7 expenses I was seeking was whittled down to $54 before my eyes in trial, which meant the Judge became annoyed with me. So don't become stubborn and be prepared to back down when you need to.

              Comment


              • #8
                I lucked out at my status hearing, the ex's lawyer was not longer being paid by Legal Aid and was requesting to be removed, MY lawyer wanted to settle it all then and there...and the judge had a trial cancellation, so his entire day was pretty much free.

                He told us to work it out and take as much time as we needed, if we reached an impasse he'd rule on it that day. The judge we drew has a reputation of being a supreme hard ass, no nonsense, and totally child focused. (and doesn't give a tiny rat's ass about what prior rulings were made, he looks at the facts and make's his own decisions, other judge's be damned.)

                This is the judge that slapped her down in February, he's been the ONLY judge we've had since.

                Comment

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