Announcement

Collapse
No announcement yet.

Ex Won't Sign Order from Case Conference

Collapse
This topic is closed.
X
X
 
  • Filter
  • Time
  • Show
Clear All
new posts

  • Ex Won't Sign Order from Case Conference

    The first case conference was held and the judge ordered a number of things, child support, access, sole custody on consent, as well as a number of other items. So, my lawyer drafted the order and sent it to his lawyer’s office. He won’t sign the order as he has an issue regarding the wording of one of the items. But, rather than following Rule 25(5) of the Family Law Rules, his lawyer just wrote my lawyer indicating that he wanted the order changed. My lawyer wrote him back indicating he did not agree with what he would like changed and that if he wanted to dispute the wording of the order than Rule 25(5) of the Family Law Rules allows him to do so and that he should proceed accordingly. However, instead of doing that, his lawyer wrote my lawyer a letter asking that we parse out the parts of the order that we agree with and leave out the section we don’t , to be dealt with at a later time in another motion/order. My lawyer then wrote him back advising him again that if he disagrees with the Order then he needs to follow Rule 25(5) of the Family Law Rules and that it will need to be decided by the judge. We haven’t heard anything back yet and believe it or not, this back and forth has been going on now for almost two months.
    According to the Family Law Rules he has 10 days to sign the Order and if he doesn’t agree he must follow Rule 25(5) to dispute the order as to form and content. I asked my lawyer that since he has not complied with Rule 25(5) why we just can’t go ahead and have the order issued since it wasn’t legally disputed in the first place (i.e. he didn’t follow Rule 25 (5)). My lawyer advised that he couldn’t have the Order issued because it would be inappropriate of his office to simply issue the order knowing that his lawyer has raised an issue.
    I’m concerned that this is just a delay tactic and I’m wondering if anyone has had a similar experience and what happened to resolve the issue?
    Your comments are appreciated. Thanks.

  • #2
    Originally posted by Ontario View Post
    Your comments are appreciated. Thanks.
    I'm not trying to be flippant (really, I'm not!) but it appears to my cynical eye that the fault lies not with "his" lawyer, but both of your lawyers...

    At ~$200/hour and .5 hours or so per letter, they're racking up the bucks while each pretending to fight for their respective clients.

    The most helpful piece of advice I can offer is to suggest that you contact your ex, convince him that only the lawyers are profiting, figure out what it is that he wants, then you both tell your lawyers what the deal is.

    I understand that this may seem impossible, but it's the only way put YOUR kids through school instead of the lawyers'

    Cheers!

    Gary

    Comment


    • #3
      instruct your lawyer that in this sort of situation, his initial letter in response should suffice and you do not wish to be billed for 'courtesy' responses that merely re-state your position.

      If he/she refuses, fire them and find someone who will.

      Comment


      • #4
        Originally posted by wretchedotis View Post
        instruct your lawyer that in this sort of situation, his initial letter in response should suffice and you do not wish to be billed for 'courtesy' responses that merely re-state your position.

        If he/she refuses, fire them and find someone who will.
        I wish I had said it that well

        Cheers!

        Gary

        Comment


        • #5
          My understanding is that in a case conference only "consent orders" can be made. If you both do not consent to certain aspects of the order then...those aspects are not on consent and hence will need to be dealt with at a later time. As per Regional Justice Durno's December 2 2004 Memorandum about case conferences what is said in a case conference is "The full and frank discussion is always conducted "without prejudice".

          Also he said
          "Such agreements should be reduced to writing, and may be incorporated into a court order."

          In fact Regional Justice Durno even stated participants in case conferences do not have a right to the transcript of said proceedings! They are essentially done behind closed doors.

          This is all just my opinion and should not be construed as legal advice.

          Comment


          • #6
            Thanks for the info the Holdthemaccountable. I'll have to take a look at that Memorandum. At my case conference though, there were both orders made on consent as well as orders made by the judge. I'm interested to read that Memorandum you cite from Justice Durno but I'm wondering if the Family Law Rules supersede Justice Durno's memorandum. When I look at the Family Law Rules it states:

            ORDERS AT CONFERENCE
            (8) At a case conference, settlement conference or trial management conference the judge may, if it is appropriate to do so,
            (a) make an order for document disclosure (rule 19), questioning (rule 20) or filing of summaries of argument on a motion, set the times for events in the case or give directions for the next step or steps in the case;
            (a.0.1) make an order respecting the use of expert witness evidence at trial or the service and filing of experts’ reports;
            (a.1) order that the evidence of a witness at trial be given by affidavit;
            (b) if notice has been served, make a temporary or final order;
            (c) make an unopposed order or an order on consent; and
            (d) on consent, refer any issue for alternative dispute resolution. O. Reg. 114/99, r. 17 (8); O. Reg. 202/01, s. 5 (3, 4); O. Reg. 89/04, s. 8 (3); O. Reg. 6/10, s. 7 (5).

            I'm also confused about the 'without prejudice' proceedings at the Case Conference. I've heard from many people that what is said at the Case Conference is without prejudice. I also asked my lawyer but he said that was untrue. He said the only comments made that are 'without prejudice' are at the Settlement Conference. I looked at the Family Law Rules too and can't find anything related to the Case Conference but found the following related to Settlement Conferences only:

            CONFIDENTIALITY OF SETTLEMENT CONFERENCE
            (23) No brief or evidence prepared for a settlement conference and no statement made at a settlement conference shall be disclosed to any other judge, except in,
            (a) an agreement reached at a settlement conference; or
            (b) an order. O. Reg. 114/99, r. 17 (23).

            Does anyone know where it states comments made at at CASE conference are without prejudice? Just curious.

            Comment


            • #7
              To get a copy of Judge Durno's Memorandum I would suggest you contact the Ministry of the Attorney Generals court services division.

              I would email them and ask to be sent a copy of what I believe is Regional Senior Justice Durno's December 2 2004 Practice Direction/Memorandum regarding Case and Settlement conferences.

              I think that the person who looks after such information may be Victoria Clare.

              I think her Ontario Court services email address is victoria.clare@ontario.ca

              Incidently if you go to Ontario.ca there is a telephone directory you can access which provides email addresses etc. of employees of the Government.

              Go to ontario.ca scroll down and on the left hand side under Contact you will see an icon that says Telephone Directory. Click on the icon.

              For instance Ann Merritt is Assistant Deputy of Court Services Division, just type in Merritt and up pops this info.

              The Family Law Rules state:
              PRACTICE DIRECTIONS
              (11) In subrules (12), (12.1) and (12.2),
              “practice direction” means a direction, notice, memorandum or guide for the purpose of governing, subject to these rules, the conduct of cases in any area. O. Reg. 561/07, s. 1.
              REQUIREMENTS FOR PRACTICE DIRECTION
              (12) A practice direction shall be approved in advance by the Chief Justice or Chief Judge of the court, filed with the secretary of the Family Rules Committee and posted on the Ontario Courts website, and notice of the practice direction shall be published in the Ontario Reports. O. Reg. 561/07, s. 1.

              Hence as per my understanding as per section 11 Memorandums regarding the conduct of cases are Practice Directions(ie memorandums) and as per section 12 are publicized in Ontario Reports however while this may be the case I would go to the Ministry to get a copy of this document rather than attempting to find it via sifting through the huge volumes of Ontario Reports.

              This is why we have a government...to assist us.

              I hope the Ministry will be helpful to you getting a copy of this.

              Of course all this is just my opinion and should not be construed as legal advice.

              Comment

              Our Divorce Forums
              Forums dedicated to helping people all across Canada get through the separation and divorce process, with discussions about legal issues, parenting issues, financial issues and more.
              Working...
              X