Procedural Questions

[FamilyBlah]

Just a couple of quick questions:

1. How does one go about getting the other party's application dismissed?

2. Is it true than an Application should also include a Form 35.1 if there is a claim for custody and/or access?

Thank you!

[Tayken]

Just a couple of quick questions:

1. How does one go about getting the other party's application dismissed?

2. Is it true than an Application should also include a Form 35.1 if there is a claim for custody and/or access?

Thank you!

Any answer to #1 would be worthless without what grounds you would request the application be dismissed. The applying party can re-apply. Not sure what you are asking?

With regards to #2... Yes, any claim for custody and access before the court (depending on when the application started) is required to fill out a Custody and Access Affidavit (Form 35.1) in accordance with Rule 35.1 of the Children's Law Reform Act of Ontario.

Good Luck!
Tayken

[wretchedotis]

I believe you would motion to have an application dismissed.

[FamilyBlah]

Thank you, both!

Here's my situation:

1. STBX's initial Application was filed September 2009. It did contain a claim for custody and access. Box [13] "custody of child(ren)" was checked under "Claims under the Family Law Act or Children's Law Reform Act".

She asked for...
"An order for the interm and permanent joint custody of the children of the marriage being [names and birth dates of children] with primary residence of the children to be with the Applicant."

She did not include a Form 35.1 with her claim because she was not required at that time.

2. Thanks to Tayken's answer I was able to find this memo identifying the changes that came into effect as of March 1, 2010.

Here's the part of the memo that most interests me:
• New Subrule 35.1 (2) directs that if an application, answer or motion to change a final order contains a claim for custody or access, the party making the claim must also serve and file a Form 35.1.
• Rules 8, 10, 11 and 15 will be amended to require that any application, answer, amended claim or motion to change that includes a claim for custody or access be accompanied by the documents required by rule 35.1.

3. So I checked out the Rules that were amended and found Rule 11(3.1), which states:

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.

4. STBX amended her application in October 2011. She added a claim for divorce and she also changed the custody order she wanted.

Box [13] custody of child(ren) remained checked.

She now asked for...
"An order that the Applicant shall have sole custody of the children of the marriage being [names and birth dates of children].

She did not include a Form 35.1.

5. Any suggestions on the best course of action?

[Tayken]

5. Any suggestions on the best course of action?

You can try and request they complete, swear and serve a Form 35.1 in accordance with the Rules outlining what you have stated above.

The reality is that no judge is going to "end" a custody and access battle on a technicality. Furthermore, you should complete and file a Form 35.1 yourself and follow the Rules that you are aware of.

Form 35.1 are helpful to the judge as there is often very little focus on the children in these matters which are the most important people in the dispute. So complete a reasonable From 35.1, outline everything in detail about the children, your plan for the children and demonstrate you can follow the Rules as set forth and that you are focused on the children's "best interests" and not the "tug of war".

Good Luck!
Tayken

[FamilyBlah]

You can try and request they complete, swear and serve a Form 35.1 in accordance with the Rules outlining what you have stated above.

The reality is that no judge is going to "end" a custody and access battle on a technicality. Furthermore, you should complete and file a Form 35.1 yourself and follow the Rules that you are aware of.

Form 35.1 are helpful to the judge as there is often very little focus on the children in these matters which are the most important people in the dispute. So complete a reasonable From 35.1, outline everything in detail about the children, your plan for the children and demonstrate you can follow the Rules as set forth and that you are focused on the children's "best interests" and not the "tug of war".

Good Luck!
Tayken

Thanks Tayken!

I did complete a Form 35.1 and served and filed with my Answer.

The STBX has only filed one Financial Statement and that was the one with the Application for the Case Conference almost 3 years ago and that wasn't completed properly as the only tax info included was page 2 of the NOA from the previous year. I believe they didn't include page 1 because they did not want to share info regarding STBX's RRSPs.

The STBX has made several motions since and there has also been a Settlement Conference. I believe updated Financial Statements, or at least an Affidavit identifying any significant changes, is required before any motion or conference. Please note that the STBX's income went from $0.00 (as indicated on her Financial Statement) in Fall 2009 to approximately $37,000 approximately 3 months later.

Also, a Child Support Order was made in Fall 2009 requiring me to pay child support. The Respondent and the Applicant, if applicable, were ordered to exchange financial information within 30 days of the 1-year anniversary. I did provide my info. The STBX did not.

I have asked the STBX for updated financial information a number of times. I sent the STBX's lawyer a letter in early March of this year in which I cited Rule 19 and requested full financial disclosure and an Affidavit of Documents. The lawyer replied that the information would be provided "forthwith". That was more than 4 months ago and I have yet to receive either.

Is it possible to use their lack of a valid custody claim (failure to file Form 35.1), their non-disclosure, and their unwillingness to make any attempt at settlement, against them? A Trial Management Conference is scheduled for the end of September and a Trial is scheduled for December. They have next to ZERO evidence, and some evidence they do have is so ridiculous that I think it can actually be used against them. I have examples.

Frankly; I am sick of the STBX's rehashing of unsubstantiated, vexatious, and irrelevant arguments. I have made numerous attempts to negotiate, provided three Offers to Settle, and have yet to be the moving party to a motion, as I have read numerous times how court should be the last option.

In addition to the above "bad faith", the STBX's lawyer has also engaged in quite a few other questionable tactics that the Rules of Professional Conduct certainly don't seem to condone.

--------------------

Tayken: I believe this case would interest you very much. There is so much more evidence to support bad faith I don't even know where to start. If you would like to know specific details or see actual documents then PM me an email address where I can send information.

The irony of it all is that if this does end up going to trial then I will need to convince a judge that my story is true when I can't even believe it.