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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 12-01-2015, 07:26 PM
sahibjee sahibjee is offline
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Default request to set aside final order

In sept 2013 the court ordered us to come in march 2014 for an appearance. by then the ex had skipped the country and cut off all communications.

I took the documents to be served to ex's friend's place (last known address where she stayed when last visiting the country) he accepted the service, I also emailed her the documents the same day.

next day her friend emailed me and said he has no idea about the whereabouts of the ex and is sending the documents back.
at the court date I explained this to the judge and showed her both the emails of ex's friend, as well as the email in which I had sent the documents to the ex as attachments. the judge accepted this and wrote it as substituted service in her endorsement. a final order was made.

The ex came back Dec of 2014 and brought a motion to change in August 2015, suggesting the the order be set aside due to improper service. the case conference is in a few days. she sighted lack of legal aid for reason not to pursue the matter any sooner.

what would be your take on the issue of setting aside the order?
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Old 12-01-2015, 08:06 PM
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arabian arabian is offline
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Another case conference in Ontario? she'll probably be given more time, particularly if she shows up with legal aid..... Hope I'm wrong.

colossal waste of taxpayer money IMO.
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Old 12-01-2015, 11:57 PM
Links17 Links17 is offline
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any proof she got the email?
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Old 12-02-2015, 01:25 AM
sahibjee sahibjee is offline
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Originally Posted by Links17 View Post
any proof she got the email?
No evidence either way, but there are a ton of emails that came from that account before and after, when showing the judge the email that I had sent her I also showed the judge the emails i had received from that account on basis of which the judge considered it alternative service.

june of this year FLR were changed to make email a way of service of the judge orders or the other party consents, but our situation occured before that. .. :s
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Old 12-02-2015, 09:14 AM
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Quote:
Originally Posted by sahibjee View Post
I took the documents to be served to ex's friend's place (last known address where she stayed when last visiting the country) he accepted the service, I also emailed her the documents the same day.

next day her friend emailed me and said he has no idea about the whereabouts of the ex and is sending the documents back.
It seems to me that what happened was this friend took the documents because he knew full well how to contact your ex. Then, he did so, and she said "no! tell him you can't find me!" and he came back to you to do her bidding.

If he really didn't know where she was, he would have said so when you brought him the papers and refused to take them in the first place.
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Old 12-02-2015, 09:33 AM
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Quote:
Originally Posted by sahibjee View Post
No evidence either way, but there are a ton of emails that came from that account before and after, when showing the judge the email that I had sent her I also showed the judge the emails i had received from that account on basis of which the judge considered it alternative service.

june of this year FLR were changed to make email a way of service of the judge orders or the other party consents, but our situation occured before that. .. :s
Considering the judge already was aware of the situation she would in essence be appealing his judgement which would be wrong.

In Quebec to set aside an order if it was rendered in default is actually easier because everybody has the right to a full and fair defense but she is basically asking the order to be set aside on the basis on something a judge already ruled was OK.

What does she want to change?
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Old 12-04-2015, 03:01 AM
sahibjee sahibjee is offline
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Quote:
Originally Posted by Links17 View Post
Considering the judge already was aware of the situation she would in essence be appealing his judgement which would be wrong.

In Quebec to set aside an order if it was rendered in default is actually easier because everybody has the right to a full and fair defense but she is basically asking the order to be set aside on the basis on something a judge already ruled was OK.

What does she want to change?
She's out of country again and will be attending on phone.

1- She wants to not pay child support (minimum wage was imputed to her)
2- Have her arrears terminated
3- reinstate spousal support arrears i owed her, (the judge had set to zero and she has been married twice since so I am not sure how the judge will look at that.)
4- set a different Skype access schedule that we have already. (There is no set Skype schedule in the order we have, so I gave her one in consistance with her physical access but she wants something that works for her but not for me and S6.
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Old 12-04-2015, 03:01 AM
sahibjee sahibjee is offline
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Quote:
Originally Posted by Rioe View Post
It seems to me that what happened was this friend took the documents because he knew full well how to contact your ex. Then, he did so, and she said "no! tell him you can't find me!" and he came back to you to do her bidding.

If he really didn't know where she was, he would have said so when you brought him the papers and refused to take them in the first place.
Yup 100% my thoughts, I'll show the judge her friends email I guess.
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Old 12-04-2015, 08:34 AM
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arabian arabian is offline
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Are you registered with FRO/MEP?
If so, what stage of collection are they at? Sooner or later her passport would be confiscated.
Perhaps get together some case law where passport was seized for non-payment of child support... where judges do not like to interrupt the natural collection process of a maintenance enforcement agency.
If she is trying to re-argue something that has already been decided, without a valid material change of circumstances, it would be res judicata.
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