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  • Motion all ready to go! Have I forgotten anything?

    So we have been around this thing for a year now. kicked always we can think of. Still getting nowhere.

    So we have decided to go for a motion to change.

    Issue. Non payment of Section 7 daycare

    Paragraph in SA, as in many, appears to be vague and non enforceable, through FRO. So we are serving a motion that will change this clause to

    A. Specify the % split ( incomes are stable)
    B. Specify day for payment
    C. Give the recipient the ability to send non paid invoice to FRO for enforcement.
    D. Court order payment of the arrears ofmthe past 12 months.

    Completed a Form 15. motion to change
    15A. Change Information Form
    15C. Consent Motion to change ( just in case he consents)
    Form 6B Affiidavit of Service
    Form 15B Response to Motion to Change ( left blank but to include)
    Copy of existing Court Order of SA
    Copy of all unpaid invoices

    So Question. In our statement " I ask the court to make,this,change for,the following reasons...." We include some references to past emails where the non paying parent said he agreed to,the % and to pay as agreed. There are a couple of emails to,this effect on different occassions. Do we need to include these at this time?

    Also we submitted the arrears to FRO but have received a letter stating the clause in our agreement does not allow them to calculate the amount owed. Do we include this. We again mentioned this in the statement for our reasons to,have this motion change.

    Appreciate your thoughts
    Last edited by Beachnana; 11-20-2014, 09:02 PM. Reason: Spelling

  • #2
    FRO will not enforce percentages. Even where incomes are stable so to speak. You need to provide FRO with an actual figure to deduct. So, make sure that the court order you are looking for has an specific dollar amount that you want FRO to enforce.

    In respect to paperwork, I think you've covered everything needed at this stage of the process, except for one critical step.

    Make sure you send out a offer to settle to the opposing party. Motions for change can be costly and having an offer on the table, will increase the likelihood of receiving costs should you receive a favourable judgement. Offer to settle is usually a compromise and less than what you have asked for in the Motion itself. e.g. opposing party based on their income, should have paid X amount for the past year, but you will be willing to accept X amount in the interests of settling this. If the Judgement is equal or better than what was proposed in the offer to settle, then costs are awarded to the more "reasonable" party for a case that should have been settled.


    Down the road, you'll need to prepare for a case conference. As far as I am aware all "Motions to Change" require parties to participate in a case conference before a motion can proceed.
    Last edited by Nadia; 11-20-2014, 11:36 PM.

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    • #3
      Thanks

      FRO did state in their response to our statement of arrears submitted that if we had specific % stated they could enforce arrrears. That is what we have proposed. That the payment is made directly but if the payment falls into arrears we have the right to send the invoice to FRO for enforcement.

      I thought the Form 15C is the offer to settle. He consents to paying what he should. Not going to offer to reduce arrears. He is actually in contempt of the court order. This is not about Hockey fees or dance fees its about daycare so she can go to work.

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      • #4
        Well, I guess you have everything covered then.

        Good luck.
        Last edited by Nadia; 11-20-2014, 11:54 PM.

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        • #5
          So I am al little confused by your suggestion that we have a motion to settle sent to the opposing party that would in effect agree to less of the arrears being paid.

          If we have a motion requesting arrears of x dollars and then send a settlement saying we would settle for less would that not weaken our case. We are owed this. Oney and its a finanacial hardship but we will take less if you settle?

          Comment

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