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  • Moratorium on Motions to Change?

    Hi All,

    I have 50/50, but needless to say I foresee myself in court on an annual basis defending our agreement and why it should remain in place as-is. She signed agreement and should abide by it no matter what, unless I do the unthinkable and move to Texas or develop an addiction or neglect kids.... Some parents just don’t get it, and try to punish ex for the failed relationship by keeping kids away. It is terrible.

    My question is, is there a mechanism to prevent someone from constantly filing motions to change? Or having applications (MTC) thrown out right away without having to do the “dance”? Can a judge order someone to not be able to file for 5 years, or something in line like that? To let families live peacefully rather than in constant “court mode”? I’ve heard of litigants wanting their way at all costs “judge shopping” where you just keep filing until you get the right judge on the right day/right mood. I don’t want to find myself constantly in court having to justify myself and defend/protect my kids time with their dad. In my case, it may have been helpful to actually go to trial, have her lose, and that would leave such a bad taste ensuring she never wants to go back to that awful place.

  • #2
    Originally posted by LovingDad1234 View Post
    Hi All,

    I have 50/50, but needless to say I foresee myself in court on an annual basis defending our agreement and why it should remain in place as-is. She signed agreement and should abide by it no matter what, unless I do the unthinkable and move to Texas or develop an addiction or neglect kids.... Some parents just don’t get it, and try to punish ex for the failed relationship by keeping kids away. It is terrible.

    My question is, is there a mechanism to prevent someone from constantly filing motions to change? Or having applications (MTC) thrown out right away without having to do the “dance”? Can a judge order someone to not be able to file for 5 years, or something in line like that? To let families live peacefully rather than in constant “court mode”? I’ve heard of litigants wanting their way at all costs “judge shopping” where you just keep filing until you get the right judge on the right day/right mood. I don’t want to find myself constantly in court having to justify myself and defend/protect my kids time with their dad. In my case, it may have been helpful to actually go to trial, have her lose, and that would leave such a bad taste ensuring she never wants to go back to that awful place.
    maybe this can help???
    https://jasonpaulhowie.com/vexatious...-law-disputes/

    Comment


    • #3
      You can’t. Thats the beauty of our court system. Everyone has free access and if she wants to file a motion she can. If there is no weight and no change then the judge will simply dismiss it at the first conference.

      Comment


      • #4
        Originally posted by rockscan View Post
        You canÂ’t. Thats the beauty of our court system. Everyone has free access
        So someone can spend $100,000 in legal fees (draining financial resources) on dealing with original application, and settle after 6 years battling in court, avoiding a costly trial. That could be ALL FOR NOTHING , if the other party resents the settlement, acts like a dog with a bone, and never accepts the outcome of settlement. That litigant who failed can spend a year re-collecting themselves, do homework, and prepare well-articulated motion materials and simply file a MTC to undo what was agreed to the previous year, hoping they get a judge in the right mood?

        If you are self-repped, why the hell not? Keep trying till you get what you want.... Especially if both parties are self-repped as resources have been depleted from dealing with the original application, so no threats of significant cost consequences. What stops a bitter litigant from losing an MTC, and filing another the next day? Just keep trying. Family Court is seriously messed up when one parent cannot accept shared parenting or respect the other parent as important in the kids lives.

        Comment


        • #5
          Yep. My husband and his ex spent almost $40,000 on their original agreement and she disagreed with all of it and took him to court only to settle for what he had agreed to pay all along.

          Stop worrying about things that are in the future or may never happen. Maybe she will find a new victim and her mother will focus on destroying that guy instead!

          Comment


          • #6
            Agreed I cannot worry about the likely inevitable MTC, and deal with that when it comes. I enjoy time with kids leading to 50/50, and wouldn’t want to lose that, neither the kids. My lawyer, judges, and the OCL all said the same thing: she simply doesn’t “get it” and never will. Replaces the role of the father with grandma. Should she meet a new guy, she will MTC to try to say she presents the kids with the opportunity to be in a happy family, as opposed to what I offer. Sounds ludicrous and illogical as reason but trust me, she’s like that.

            Comment


            • #7
              Welcome to my world

              Comment


              • #8
                System is messed up. A litigant can lose at trial and turn around the next dat and file a MTC and roll the dice, and keep rolling the dice till they get the right judge. Should be a 5 year ban unless something extremely drastic occurs, such as one parent moves 200 km away

                Comment


                • #9
                  There is that old adage, where it is better to let 99 guilty go free rather than jail one innocent.

                  Family law works like that to a certain extent. It is better that 10 non-meritorious cases are allowed to proceed, than 1 meritorious case not being allowed to proceed.

                  To put it another way, if somebody has a good case, the consequences of not allowing to proceed is that a great injustice may occur. This could include a poor custody decision. However, if somebody has a bad case, all that is lost is time and money.

                  As long as the loser is paying costs, the system mostly works. It breaks down when costs are not paid. Offhand, I would say that anybody with more than two unpaid costs orders should be required to go to triage to see if their case can be heard.

                  Comment


                  • #10
                    High time some civil code principles were enacted in family law.
                    The process is cumbersome, challenging, ridiculously costly and often ineffective.
                    People facing marital breakdown and especially when kids are involved are already under enormous stress. Load on a system that takes enormous effort to comprehend, rules of procedure that are counter-intuitive, strict rules surrounding filing documents, fee hungry lawyers and time pressured judges and voila- mayhem.

                    Even if imperfect an accessible, logical and less costly approach is needed to decrease or eliminate the toxin of misplaced advocacy and forcing participants o focus on the children and getting agreements done IMHO.

                    Sure, civil litigation is always based on advocacy and is all about money, property, rights, obligations, torts. Maybe the right environment. Family Law is not the same, not at all.

                    Comment


                    • #11
                      If 50/50 is in place, it should be set up that it’s next to impossible to change and take away time with the other parent. That is what people fight about: When 1 parent wants kids to themselves, or try to mooch off of CS as long as possible. Some treat it as a monthly lottery payment. The system would be so much less adversarial if it were premised on equal parenting if the parents reside in proximity to one another. If it were understood that when you split, it’s automatically joint custody and 50/50 parenting, there would be a lot less cases clogging the system. Instead you have lawyers promising the world to parents who have emotions running 1000 km/hr and at their worst.

                      Unless, of course, there is an ACTUAL reason not to do equal parenting, such as distance between residences or legit substance abuse or child neglect. It should be auto 50/50 and once that’s in place, no going backwards.

                      Comment


                      • #12
                        Originally posted by LovingDad1234 View Post
                        Unless, of course, there is an ACTUAL reason not to do equal parenting, such as distance between residences or legit substance abuse or child neglect. It should be auto 50/50 and once that’s in place, no going backwards.
                        The term you are looking for is "presumption of shared parenting".

                        It has been brought up before but never made it far. Women's groups and the bar association were strongly against it. Make of that what you will.

                        https://www.justice.gc.ca/eng/rp-pr/...il/c78/03.html


                        Over the years, several private member’s bills have proposed changes to the Divorce Act that would have created a legal presumption of equal shared parenting meaning equal time and joint decision-making responsibility. This presumption would apply unless a parent could prove that such an arrangement is not in the best interests of the child. While in most cases parents can and should share responsibilities for their children, a presumptive equal shared parenting arrangement does not work for all families. For example, if one parent travels frequently with work, or does shift work, it may be very difficult to share time with a child equally. If there has been family violence, sharing responsibilities may be dangerous to the child and other family members. An imbalance in power between spouses—as well as the high cost of legal representation—may make it difficult for a party to present evidence to convince a court not to apply the presumption.

                        Several stakeholders, including the Canadian Bar Association, have argued that a presumption could increase litigation by forcing parents to lead evidence showing that the other parent is less fit, thus fuelling conflict. The Special Joint Committee on Child Custody and Access noted that a parenting presumption would shift the focus of the inquiry in parenting matters away from the best interests of the child. A presumption would be inconsistent with the emphasis on children’s best interests brought in by the 2019 changes to family laws.

                        Comment


                        • #13
                          The CBA again feathered the nest by choosing the most litigious approach instead of drafting compensating wording to deter taking advantage of family conflict and perhaps to penalize those that pour gas on the fire an light the match. Far fewer fees to be made arguing against share parenting than arguing all the other permutations. Call me cynical.

                          Comment


                          • #14
                            "Over the years, several private member’s bills have proposed changes to the Divorce Act that would have created a legal presumption of equal shared parenting meaning equal time and joint decision-making responsibility."

                            If its presumed equal, you don't have 2 people fighting over TIME. That is what most court cases are about, the ability to spend time with your kids. Without that, you are giving the impression that one parent is more worthy than the other, and telling your kids that mom is more important than dad.

                            "This presumption would apply unless a parent could prove that such an arrangement is not in the best interests of the child."

                            BIC is an equal parenting relationship with both parents. You are divorcing your ex. Your kids are not divorcing you, and have every right to equal time with both parents. How dare 1 parent fight to keep the kid away from the other parent if there is no good reason.


                            "While in most cases parents can and should share responsibilities for their children, a presumptive equal shared parenting arrangement does not work for all families."

                            People fight when there is an imbalance. Such as 1 parent making all the decisions or gatekeeping. When its joint custody and 50/50, both parents should be happy and on their merry way. When you start to treat one parent in an inferior way, you have conflict.

                            "For example, if one parent travels frequently with work, or does shift work, it may be very difficult to share time with a child equally."

                            Deal with that if that is the case. Sane and reasonable parents will adjust parenting accordingly. Throw out that argument if both parents are Mon-Fri 9-5. Otherwise, parents who cannot take care of kids during their time can exercise ROFR or be responsible for their own babysitters.

                            "If there has been family violence, sharing responsibilities may be dangerous to the child and other family members."

                            Just because you argued as a couple, does not mean that the other parent will be a terrible parent. Must be proven violence, and not just opinions such as "He was mean to me so I think he may be mean to the kids"

                            "An imbalance in power between spouses—as well as the high cost of legal representation—may make it difficult for a party to present evidence to convince a court not to apply the presumption."

                            Not having joint custody and 50/50 is the biggest imbalance there is. When couples agree to joint custody and 50/50 parenting, most conflict goes away.

                            "Several stakeholders, including the Canadian Bar Association, have argued that a presumption could increase litigation by forcing parents to lead evidence showing that the other parent is less fit, thus fuelling conflict."

                            Actually, a presumption would likely DECREASE litigation, or keep it at the same level. The conflict now is trying to have dads respected as a parent who is perfectly capable of putting kids to bed and ensuring homework is done, and not a mere visitor

                            "A presumption would be inconsistent with the emphasis on children’s best interests brought in by the 2019 changes to family laws"

                            Most psychologists suggest that equal parenting is in the BIC when parents are able to put aside their differences and not fight. Most fighting is about time and money. Make it equal time and offset CS and most arguments would go away. Unless, of course, the OP is greedy with respect to time and money....

                            Comment


                            • #15
                              Originally posted by LovingDad1234 View Post
                              Actually, a presumption would likely DECREASE litigation, or keep it at the same level.
                              Of course it would, why do you think the bar association was against the reform?

                              Woman's groups were against it as well because, just possibly, family law is not gender neutral.

                              Almost 100% of the arguments ignored the fact that it was a rebuttable presumption. Family violence? Well, presumption no longer applies. One parent spends half the year in Brazil? Presumption no longer applies.

                              Again, the bill did not come even close to passing. Anyone who dreams of family law reform should keep that in mind.

                              Comment

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