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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 07-27-2012, 06:41 PM
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I've heard they are expensive but could you not get the transcripts of the first hearing to find out what really went on?

I know my lawyer is scrupulously careful when serving my ex a/o his lawyer notices. Lawyer continuously tells me he's seen many motions get tossed out on objection if process is not followed precisely. This might be a good thing for you to examine with ALL of those hearings. Maybe I'm naive but I thought we were all entitled to be present and represent ourselves at any legal process.

What's the deal with the employer being in court and you not being there??? I realize money is probably very tight but it might be very important to get transcripts if they are available.

I totally understand your frustration but try not to take on the whole world at once. I think with family court we have to take the good with the bad and know which battles to pick (hate to be a cliche). I'm no law expert but I have an excellent young lawyer who explains processes/strategies to me. I can offer some input based on my success and my ex's failures. Speaking of that, his affidavits were ridiculous. I was very upset at the time but soon learned that they are pretty much meaningless in the end (although we didn't have a child custody thing going on). Came down to dollars - who made what. Still ultimately comes down to that.

I didn't mean to be sarcastic when I spoke about the failure to file taxes. My lawyer called me up on this one last year. LOL

Let me know if you have any transcripts or if you are able to make some sense of why these hearings took place without you present.
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Old 07-27-2012, 07:06 PM
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I don't have any transcripts and never considered getting the ones from the first hearing without me.

Thank you!
  #13  
Old 07-27-2012, 10:24 PM
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This is just an idea and may not be of any use - if you do get the transcripts from the first court hearing and if you do find something totally off the wall, maybe it might be enough for you to request transcripts (hopefully at no cost to you due to an obvious error) of all subsequent hearings. I have no idea of how you would go about this but it might be worth a shot. I really believe it is important to have every single detail nailed down before you consider moving forward on anything. You have to somehow put the emotional side of things aside and get your logical part of you working (easier said than done I know).
  #14  
Old 07-28-2012, 01:02 AM
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re-read your earlier post again. Can you clarify on your point #15 - this might be useful to get transcripts. Failing that what specifically did the order say about your failing to answer.
  #15  
Old 07-28-2012, 01:14 AM
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Another question - regarding employment. Wrongful dismissal. Union? Collective Agreement - do you still have a copy? If it's union there is a provincially regulated arbitration process. If not union I assume you settled? Could have some relevance as if you received a settlement through arbitration process I believe (don't hold me to this 100%) EI which you might have collected during the arbitration process should have been repaid. I believe that is normally spelled out in settlement award order. This could alter your financial statement a tad.
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Old 07-28-2012, 08:42 AM
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You've provided some sound advice here, Arabian.

I would only add that the bench mark for having someone deemed a vexatious litigant is high. My ex took me to court several times in the course of 18 months. But when I brought my motion to have him deemed a vexatious litigant, the Judge did not think we had proven enough reason. However, the Judge did agree that my ex should be prohibited from bringing forward any more motions/applications without first obtaining leave from the court. Therefore, I believe having one deemed a vexatious litigant is a lot more difficult.

Tayken and Orleans are both spot on about the improbability of proceeding without notice. Like it or not, the opposing party is entitled to an opportunity to address your motion. Anticipate what he/she may respond with and be prepared to submit a reply affidavit.
  #17  
Old 07-28-2012, 10:53 AM
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HI Nadia. I agree. It has taken over a year of court appearances by my lawyer to deal with same matter. However, now my ex and/or his lawyer have to go through judge who dealt with our divorce on all matters. Took alot of time and money to get to this point but I think it will be worth it. Huge legal bills coming my ex's way soon - hope that will deter him. Courts have more important issues to deal with, particularly those that involve children, in my opinion. People who make a career out of going to court should have to go through psychiatric evaluation as I sometimes think continuous filing of law suits can be a sign of mental illness, in my opinion.
  #18  
Old 07-29-2012, 11:13 AM
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Hopefully I can address the last few messages with this post...


The SEPT 2010 Order from [15] states, "The Respondent has failed to file an Answer and is therefore not entitled to any further notice of steps in the case."

I was not notified of this SEPT 2010 hearing. There is nothing from the order to suggest it was an emergency so I'm unclear how STBX obtained this order without notice to me. Is it possible for a party to claim they notified the other party of a motion when they didn't? Would there be something filed in the Continuing Record? I have a copy of the Form 14C: Confirmation for the hearing that indicates the hearing will be going ahead on all the issues. The funny thing is....the Confirmation indicates the judge should read Tabs 1 to 5. Tab 4 is the Financial Statement I filed that they claimed I failed to provide. I smell something fishy!

Yes, my grievance was for wrongful dismissal. I had to settle for less than I should have because I needed the money to pay the $2500 in order to file my answer. EI does not have to be repaid. The Union has some way around this. I suspect it may have something to do with "income" vs. "damages".

I realize that any judge will be very reluctant to grant an uncontested hearing, especially when child custody is an issue. However, my STBX has (through what appears to be fraudulent means) already had the opportunity to present their case to a judge on more than one occasion and still did not get anything they had asked for in their claims.
  #19  
Old 07-29-2012, 11:49 AM
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When you receive a notice of motion it should specify a date in it that you had to submit your statement of defense (Answer). If you did not do that then you are probably a TOL (tit out of luck). I'm not sure about informing you of subsequent hearing dates but it might be worth examining. I don't believe you can file an appeal as you only have 30 days to do that. Appeals are only about errors in law and very few cases are successful that I know of. However, if you can document a precise AND CONCISE list of issues in a non-emotional, factual manner you could have the matter reviewed. I would strongly suggest that you focus on one or two things only. This is where lawyers are extremely handy as good ones keep the emotional stuff out.

If your payout from your employer states "income" then you are obligated to pay back EI. One easy way to figure this out is to check and see if there is any mention of change of employment termination date. Some employers purposely screw employees this way, particularly when the employee wins the arbitration.
  #20  
Old 07-29-2012, 12:47 PM
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Quote:
Originally Posted by arabian View Post
When you receive a notice of motion it should specify a date in it that you had to submit your statement of defense (Answer). If you did not do that then you are probably a TOL (tit out of luck). I'm not sure about informing you of subsequent hearing dates but it might be worth examining. I don't believe you can file an appeal as you only have 30 days to do that. Appeals are only about errors in law and very few cases are successful that I know of. However, if you can document a precise AND CONCISE list of issues in a non-emotional, factual manner you could have the matter reviewed. I would strongly suggest that you focus on one or two things only. This is where lawyers are extremely handy as good ones keep the emotional stuff out.

If your payout from your employer states "income" then you are obligated to pay back EI. One easy way to figure this out is to check and see if there is any mention of change of employment termination date. Some employers purposely screw employees this way, particularly when the employee wins the arbitration.
The issue is that I did not receive a Notice of motion for the SEPT 2010 hearing.

I will not have to pay back any E.I. and that is not a concern. The Minutes of Settlement from the grievance specifically identify that the monies I was paid was for "damages" and for relinquishing all rights to be reinstated. There is case law that specifically states "that a payment received for renunciation of a right to reinstatement does not constitute earnings under the Employment Insurance Regulations (Canada v. Plasse [2000] F.C.J. 1671 at paragraph 18).


It seems to me that the important question is how my STBX obtained the SEPT 2010 uncontested hearing? It seems that I should have been given notice of this hearing to allow me to provide a defense.
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