Ottawa Divorce .com Forums


User CP

New posts

Advertising

  Ottawa Divorce .com Forums > Main Category > Divorce & Family Law

Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

Reply
 
Thread Tools
  #1  
Old 04-15-2015, 03:12 PM
YoungDad23 YoungDad23 is offline
Senior Member
 
Join Date: Nov 2014
Location: Ontario
Posts: 244
YoungDad23 is on a distinguished road
Default Summary Judgement & Costs Rule Changing

AS OF MAY 2, 2015 - Change to Ontario Family Law Rules
Summary Judgment
Subrule 16(6.1) provides that in determining whether there is a genuine issue requiring a trial, judges may weigh evidence, evaluate credibility and draw reasonable inferences from the evidence.
Subrule 16(6.2) provides that a court may order that oral evidence be presented for the purpose of exercising any of the powers set out in subrule (6.1).
Subrule 16(10) which provided for a presumption of costs against an unsuccessful party has been revoked.
Subrule 16(11) which provided for costs of a motion on a full recovery basis where a party has acted in bad faith has been revoked.

While prepping for my settlement conference next week, I came across this info in a notice on the Family Law Rules Forms page.

Am I reading this right that unsuccessful motions and bad faith will no longer be used to determine costs?

It looks like things could be changing when it comes to trials too.
Can anyone comment on how Summary Judgements will be used to shorten the process and avoid trials when it is obvious one side is not being cooperative and lying?

Our case management judge made if VERY CLEAR at our last appearance that he wanted us to prepare detailed SC briefs and that he intends to make a FINAL order on custody for my toddler son.

I have filed all my materials on time but have received NOTHING from my ex or her lawyer (yesterday was the deadline). It took her six months to even file her answer to my initial application and she did that over the bench.

If she doesn't file anything prior to the SC and shows up anyways (has done this for 3 previous conferences) could the judge just make the final order for joint custody?

Thanks for any insights.
Reply With Quote
  #2  
Old 04-15-2015, 03:50 PM
arabian's Avatar
arabian arabian is offline
Senior Member
 
Join Date: Jan 2011
Location: Western Canada
Posts: 10,668
arabian will become famous soon enough
Default

I would interpret it as reaffirming/bolstering the discretionary power of judges.

Often matters don't need/shouldn't go to trial.

Keep in mind that judges generally want to make Orders that aren't likely to be successfully appealed. Child custody is a serious matter. Perhaps if your ex doesn't show up the presiding judge would rule on interim custody and give your ex another 30 days leniency. Might come down to which judge you get that particular day (unless you have the same judge).
Reply With Quote
  #3  
Old 04-17-2015, 03:48 PM
MrToronto's Avatar
MrToronto MrToronto is offline
Senior Member
 
Join Date: May 2012
Posts: 1,338
MrToronto is on a distinguished road
Default

I agree with what Arabian wrote on Judges discretion on Costs (it's just clearer fuzzy language for Judges)

Like everything in Family Court you have to preplan what you want and chart a path to get there.

A first step is knowing the RULES, CASELAW and your adversary.

Don't assume your adversary is ripe for a Summary Judgement especially with a lawyer involved.

I gather from the short blurb all your asking for is JOINT.

The EX has no worries on losing sole or primary custody so there's no downside by ignoring conferences.

Judges are able to tell from the parties briefs where the parents heads are at. The biggest fights are between parents over who gets custody

When one parent already accepts (in the Application and later Conference briefs) a water down version of custody like Joint then maybe he/she isn't as serious about being a full time parent and will settle for some form of access.(no hurry)

IF your origional Application had "I want sole custody" then away you go to conferences with a nervous EX very ENGAGED and afraid of losing custody

My 2 cents is you could Revise your Application to 1) Sole and 2) Joint (now your serious) ...and maybe try for a reaction by notifying the OP that a Motion for "interim change of custody" is being prepared. (make a parenting plan)

If the EX has little money then that throws another dimension for Judges to consider (being unfair to get money) or (finding ways to rule against insincere moneybags)

3 conferences already ....status quo (leave everything as is) is a definite possibility.
Reply With Quote
  #4  
Old 04-17-2015, 03:59 PM
OrleansLawyer OrleansLawyer is offline
Senior Member
 
Join Date: Jul 2012
Posts: 1,787
OrleansLawyer is a jewel in the roughOrleansLawyer is a jewel in the roughOrleansLawyer is a jewel in the rough
Default

Quote:
Summary Judgment
Everything you quoted has to do with the rule for summary judgment hearings. The goal is to reduce the risk associated with it; some cases, which could be resolved by summary judgment, are still heard in full because of the fear of costs.

There are a number of other changes which are worth reviewing.
Reply With Quote
  #5  
Old 04-18-2015, 11:19 AM
YoungDad23 YoungDad23 is offline
Senior Member
 
Join Date: Nov 2014
Location: Ontario
Posts: 244
YoungDad23 is on a distinguished road
Default

Quote:
Originally Posted by MrToronto View Post

My 2 cents is you could Revise your Application to 1) Sole and 2) Joint (now your serious) ...and maybe try for a reaction by notifying the OP that a Motion for "interim change of custody" is being prepared. (make a parenting plan)

If the EX has little money then that throws another dimension for Judges to consider (being unfair to get money) or (finding ways to rule against insincere moneybags)

3 conferences already ....status quo (leave everything as is) is a definite possibility.
Thanks for your comments and clarifications.

EX has NO money (generational OW and legal aid lawyer).

I did get her hastily prepared case conference brief in the mail but it was pretty much a CYA move by her lawyer.

Ex didn't even sign it (lawyer did on her behalf) and there was no attempt at a proper offer to settle. The terms were 1. Sole Custody, 2. Same child support, 3. Same Access schedule.

Her lawyer is either completely frustrated with her craziness (and her mother's) or just doesn't give a crap anymore. I wouldn't be surprised if she wants off the case.

After our last case conference in October, I filed a successful motion to get overnight visits with my son my ex filed a cross motion for sole custody.

In my answer to her cross-motion I did ask for sole custody to me with a very detailed parenting plan (my original application was for joint).

I got weekly overnights and other expanded access but the judge refused to rule on custody but added "the child shall primarily reside with the mother" to his endorsement. (which I know is "joint" custody language)

To my ex's credit, there has been no denial of access since April 2014 and she has become more cooperative over time. We have been doing the exchanges face to face recently with no problems.

After going through false allegations of child abuse and fighting criminal charges of historical assault (withdrawn, no peace bond), I make sure I ALWAYS have a witness with me.

At next weeks Settlement Conference, I am prepared for the judge to:
a) Do nothing much
b) Bring in the OCL (it has been mentioned before)
c) Send us to trial

Not really worried about any of the three options, it is what it is and I will deal.
Reply With Quote
Reply


Currently Active Users Viewing This Thread: 1 (0 members and 1 guests)
 
Thread Tools

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is On


Similar Threads
Thread Thread Starter Forum Replies Last Post
In defence of the work judgement dadtotheend General Chat 10 05-25-2010 10:28 AM
Costs - How/Where Do You Ask for Costs? #1StepMom Financial Issues 12 01-10-2010 11:09 PM
UK dad being crippled by maintenance plus huge travel costs. Help! UKdad Divorce & Family Law 7 09-01-2009 09:26 PM
How to Share Daycare Costs? #1StepMom Divorce & Family Law 7 07-20-2009 05:04 PM
Legal Aid serrona Divorce & Family Law 1 10-27-2006 08:00 PM


All times are GMT -4. The time now is 03:13 PM.