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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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  #1  
Old 01-12-2021, 01:18 PM
flyingsnow flyingsnow is offline
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Default How to amend Urgent Motion - Need Help

This is my very first post here:

I filed an urgent motion before case conference, we haven't been to first appearance yet. Had hearing yesterday, presiding Judge didn't find it is urgent, and pointed out the relief I was seeking should be brought in by Motion to change, and wait for Case Conference.

There is currently a Final Order in place, the other side constantly violating access order whenever he wanted and withheld the child on visitation in March 2020 as a bargaining chip to get what he wanted from me. He is now asking to eliminate child support arrears and drastically reduce child support. I opposed and requested income to be imputed. The following weekend, the child was overheld again as a punishment for me, and he asked the child (13) to reply to my angry message towards him. I filed Urgent Motion following that, on the base that he could use the child as bargaining chip again to force me to accept child support change, or at least to cause distress on me. The Judge didn't find the child in danger, although heard that the other side was violating court order. The Judge didn't say anything when I said the child's wellbeing was in jeopardy. The Judge insisted that if the child was not in immediate physical danger, then it was not urgent. It could wait till Case Conference.

Due to some procedural issues, the hearing was scheduled to be heard again on Jan. 27, 2021. Given the Judge's opinion, it is unlikely I will get anywhere. So I am planning to amend what I am asking to something like:
The other side must follow Final Order, return the child on time. Not involve the child in the middle of conflict. Possible police enforcement? So at least he cannot use the child to threaten me to agree into anything.
I will drop my request for supervised exchange.

Will I be able to do that? Can I just change what I am asking in the Confirmation? without amend the Motion itself, given that it is only 2 weeks left.

Thanks for any input!
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  #2  
Old 01-12-2021, 01:27 PM
seeker101 seeker101 is offline
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Well, you could always send an Offer to Settle. If there's a mutual decision, then you both could execute Minutes of Settlement and submit them to the Court to be entered into an Order.

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  #3  
Old 01-12-2021, 02:01 PM
rockscan rockscan is offline
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Involving the police is never a good idea. As for the urgent motion, the judge is right it can wait.

Right now the only thing you can do is document. Send him an emailing outlining that his parenting time ends at xyz time and he is in breach of the order. Remind him that it is inappropriate to involve the child in the matter and he can raise his objections with the judge. When your son gets involved remind him that this is between you and his dad and you will not discuss further.

Then you bring all of that documentation to your appearance.

Your son is 13 and old enough to make his own decisions. No judge will order supervised access or a supervised transfer. If you want to avoid having him choose his dad I would suggest some therapy to help him work through being put in the middle and how to tell you both to leave him out of it.


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Old 01-12-2021, 02:59 PM
StillPaying StillPaying is offline
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Quote:
Originally Posted by flyingsnow View Post
There is currently a Final Order in place, the other side constantly violating access order whenever he wanted and withheld the child on visitation in March 2020 as a bargaining chip to get what he wanted from me. He is now asking to eliminate child support arrears and drastically reduce child support. I opposed and requested income to be imputed.
You're right to oppose the demands, not sure if imputing has merit.
The access issues will be dealt with in court, most likely with a slap on the wrist and less sympathy towards an imputation excuse. Don't see why this would be urgent.

Quote:
Due to some procedural issues, the hearing was scheduled to be heard again on Jan. 27, 2021. Given the Judge's opinion, it is unlikely I will get anywhere.
Do you have another urgent motion scheduled? That's a bad idea.
Otherwise if it's a first appearance or case conference, it's a quick process and you still have time.

Quote:
So I am planning to amend what I am asking to something like:
If this is for an urgent motion, speak with a lawyer asap.
Otherwise the conference judge will give permission to amend.
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Old 01-12-2021, 03:24 PM
flyingsnow flyingsnow is offline
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Thank you everyone for giving me advise!

The Judge ordered both my Urgent Motion and the other side's motion to change child support first appearance to be heard at the same time. a bit strange to me, maybe to save the court's time.

I will listen to rockscan, drop Police enforcement clause, drop supervised exchange, follow seeker101's advice to send Offer to Settle, so at least the other side will follow Final Order on access until Case Conference, not keeping the child whenever he wants. I have to fight on every access to get the child back. I understood urgent motion includes hearing for the "interest of justice"?

To answer StillPaying, the other side was making $100K+ prior to Final Order was signed, I have that tax return, now claiming making -$669, yes, minus $669 per year. That is ridiculous, no illness, no education needs, no other kids, He was just working for cash, but I cannot prove it, so asking for imputation.
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Old 01-12-2021, 04:15 PM
StillPaying StillPaying is offline
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Quote:
Originally Posted by flyingsnow View Post
The Judge ordered both my Urgent Motion and the other side's motion to change child support first appearance to be heard at the same time.
Did you refile or request another UM? Why would the judge deny it, say go to CC, then book another UM? Did you pay costs the first time?

Quote:
send Offer to Settle, so at least the other side will follow Final Order on access until Case Conference
That's not how OTS's work, but it may scare the other side into following the order.

Quote:
I understood urgent motion includes hearing for the "interest of justice"?
Everything in court is in the interest of justice, but there's a process to follow. Need a better reason to jump the line.

Quote:
the other side was making $100K+ prior to Final Order was signed, I have that tax return, now claiming making -$669, yes, minus $669 per year. That is ridiculous, no illness, no education needs, no other kids, He was just working for cash, but I cannot prove it, so asking for imputation.
If you can't enforce the final order (100k) amount now, without agreeing to the support decrease, then imputation is the way to go.
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Old 01-12-2021, 05:14 PM
flyingsnow flyingsnow is offline
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Quote:
Originally Posted by StillPaying View Post
Did you refile or request another UM? Why would the judge deny it, say go to CC, then book another UM? Did you pay costs the first time?
The Judge provided his opinion verbally, but not in Endorsement. The same urgent motion going again on Jan. 27, 2021. Both parties were permitted leave to file more affidavits. The Judge ordered cost reserved to next hearing.

Quote:
Everything in court is in the interest of justice, but there's a process to follow. Need a better reason to jump the line.
This is a really good one, I need to remember that. At least after Urgent Motion was filed, the child has been returned on time after each visit, and was not kept for current remote learning, otherwise I may not see the child for weeks. And I'm the primary parent! Even I have to pay costs, it may still worth it, that I would keep the child with me except weekends for about 6 months with no fight with the other side, before next CC.

Quote:
If you can't enforce the final order (100k) amount now, without agreeing to the support decrease, then imputation is the way to go.
He stopped paying child support all together. I am planning to ask the Judge during CC to order him to continue the payment based on Final Order ($100K), until new order is issued.
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Old 01-12-2021, 06:34 PM
rockscan rockscan is offline
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Are you in a province that has enforcement agency? If so, file your order with them for enforcement.

Remember that you need to have proof he is underemployed. Put together some examples of job postings for what he did before and be prepared to fight for imputation. There is a case (Drygala I think) that has details on purposely underemployed.

Can you not just go get your kid?


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  #9  
Old 01-13-2021, 10:36 AM
flyingsnow flyingsnow is offline
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Quote:
Originally Posted by rockscan View Post
Are you in a province that has enforcement agency? If so, file your order with them for enforcement.
I am in Ontario, child support is enforced by FRO, I believe he filed a refrain order to FRO to stop FRO taking action, pending his motion to change child support result.


Quote:
Can you not just go get your kid?
I cannot. If I go to his house, he will call police for trespassing. Police already said they cannot enforce child access order unless specified in the order.
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Old 01-13-2021, 10:56 AM
flyingsnow flyingsnow is offline
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Now I think about it, why it is so hard to get the child back after each visit, it is because he is trying to establish a 50/50 time sharing status quo. After 6 months when we get to CC, he could ask the Judge to change access to 50/50, then ask me for child support, because he claims he is making negative income now.

In this sense, regardless my Urgent Motion is being denied or not, it is the only means to stop him keeping the child. Because the Judge already yelled at him in the hearing "Why don't you follow the order?!" and wouldn't let him say a word for the entire time.

So paid cost for my urgent motion would be a much easier and cheaper way than having to deal with his motion to change access, then motion asking me to pay child support.
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