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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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Old 11-04-2010, 03:40 PM
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Default Is it normal to change a Hearing to a Trial?

At a September case conference the Judge set the date for a hearing at the beginning of November. (I have a copy of the Endorsement saying so).

Respondent files papers etc. and researched what to expect at a hearing. Applicant does not file papers on time.

Respondent appears in court on the appointed day and waits outside the courtroom. Applicant and his lawyer are already there, although they are seated on the other side of the room to usual. Respondent slightly baffled, but takes seat.

Judge arrives and announces the beginning of the TRIAL. Respondent is dumbfounded because Respondent was not advised the hearing had become a trial. Applicant and his lawyer however, ARE ready for a trial.

Respondent is thinking fast, "If I say I'm not ready, then I'll be charged and it will be adjourned. Okay, just push on. How does a simple change of child support, proportionate S.7 expenses and arrears turn into a trial?"

How fair is it when one party has received notification that a hearing had become a trial and the other wasn't notified? Do mistrials exist in family law? I'm not thinking of appealing the Judge's decision (even though I've been banned from being able to take legal action against anyone unless I get permission from the court first). I'm starting to get angry about my one and only unexpected Trial experience. (for the record, I won, though the Judge awarded costs to the loser -- another odd twist of affairs that has duty counsel baffled). Can yo complain about a Judge being unfair?
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Old 11-04-2010, 10:31 PM
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If not happy, and ready for a challenge, one could Appeal. However, before doing so, one should assess current costs, additional costs and chances of success.
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Old 11-04-2010, 10:45 PM
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If you won, then what is the issue?
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Old 11-05-2010, 08:40 AM
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I'm not going to appeal, though I have been punished by the Judge and am not allowed to "Make a Motion" without getting permission from the Court. I was ordered to pay costs ($2,500) even though I won and it will be deducted from child support payments. These were unusual according to the duty counsel who looked at the Endorsement.
I'm also wondering if the Judge was in "conflict of interest". Exes lawyer is also a Deputy Judge in the Small Claims Court of the same courthouse. The September endorsement clearly says "hearing" on Nov. 1. When was it changed to a trial, and why wasn't I informed? Why weren't the intervening steps followed? Why was exes lawyer ready for a trial? Why was that information withheld from me? Aren't Judges supposed to be impartial? If I knew I was going to a trial, I would have prepared for a trial instead of a hearing.
What is the issue? It means I can't take anyone to court until I have permission from the Court. It means my ex can bully me as much as he likes and the justice/legal system will not help me.
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Old 11-05-2010, 09:10 AM
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do you have a lawyer? Perhaps seeing a lawyer would clarify things? Be insistent that you want to know what the law says about this and what your chances on appeal would be. Tell them you want the truth, not the best case scenario.
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Old 11-05-2010, 09:40 AM
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Default No lawyer...

I am a bona-fide unrepresented litigant. Can't pay for a lawyer and don't qualify for Legal Aid. All what I was trying to do was have the child support amount changed, proportionate amounts for S.7 expenses changed and payment of arrears. All that happened. Ex and his lawyer were not granted anything they were seeking, yet the children end up paying for his court costs (deducted from child support payments).
After the stress of the court action which has been going on for about 8 - 9 months for something relatively simple, I'm not prepared to launch an appeal (which I realize would be Ontario Superior Court). I don't know the law well enough and only have twenty-six days to do so (thirty days after trial over).
The situation doesn't seem "right" -- and I feel as though I was 'set-up" somehow, especially since the Judge didn't let me explain my side of things yet permitted his lawyer to talk as much as he liked (which was usually going on about the Mediation Report and how unreasonable I was being, when they are the ones who insisted I accept their Offer to Settle in its entirety or not at all and refused to correspond with me between conferences etc.). I've resigned myself to "suck up" the Judges' order, but it's galling that I now have no recourse to the law when he bullies me, ignores the court orders etc. I'm sure I won't receive payment for the arrears and I won't be able to do anything about it. I'm not allowed to stick up for my rights anymore.
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Old 11-05-2010, 12:05 PM
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If you don't go out and get the legal advice you need, then you are indeed "sucking it up". You should be able to find a lawyer to give a half hour consult for free, or a small fee. At least then you would know whether you were taken advantage of...

I know this sucks and I sympathize. I know it would be eating away at me for a long time...
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Old 11-05-2010, 12:34 PM
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I did consult with duty counsel at the court house after I acquired copies of all the endorsements and trial management. Duty Counsel asked me, "What did you do during trial, because this is punitive?" And I really, really do NOT know what I did that was so terrible. The Judge never warned me that I was behaving incorrectly during the trial.
However, to appeal I need to know the law and I have to show how the Judge came to an erroneous decision. I have to study case law. I have to quote "the Rules" and show how the Judge didn't follow them in making an incorrect decision. To make an Appeal, one can deal with facts only. To say I didn't have a fair trial because the Judge didn't like me isn't nearly enough to start. It's a fairly serious thing to start an appeal.
It's also serious to complain about a Judge's conduct (you can complain about a Judge's conduct, but it's an appeal if you disagree with the decision). Don't know where to complain to if you think your case was handled incorrectly.
Quite simply, I've had "the fight" knocked out of me but I don't want to end up being a doormat he can treat shabbily, because his lawyer will tell him what has happened.
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Old 11-05-2010, 01:52 PM
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The question is whether changing a settlement conference to a trial is against the rules, not whether the judge liked you or not. That is what you need to know. If it is, you have a reason to appeal
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Old 11-05-2010, 06:50 PM
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I've found in Nova Scotia Rules that there can be a "Trial-like Settlement Conference" which includes things like examining witnesses, and this results in final orders, it is basicly a trial from what I read. I can't find anything similar in Ontario court rules, and there are rules which seem to preclude having a trial like this, for example the trial record has to be submitted 30 days before the trial. I can't see how there could be proper disclosure with a sudden trial like this. It seems to break a number of rules. There is no rule that seems to make it an option.

That said, I'm not a lawyer and judges have powers coming out the wazzoo.
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