Tria just around the corner ...

[reesser]

Hiya all, I really could use some direction on a few issues.

Here’s my current situation. She’s the App. We are both self-rep.


Trial is on March 22nd. TMC was on Feb. 18th, Motion for Mid-Week Access was on Jan. 5th, last SC was on Dec. 9th.


We were both seeking full custody, to our 4 yr old child, until the last SC. The judge said because of the status quo and the inability to get along, she would probably get full custody. Understood, I tuck my tail between my legs.


Previously adjourned, I brought forward a motion (Jan. 5th) asking for mid-week access (we currently are ever other weekend). I didn’t care if the visit was 5 min or 2-3 hours after school – on the afternoon/eve of a non-school night. She refused and the judge would not make an order unless on consent because we are so close to trial. It’s not like I wasn’t asking for this for the past 8 months. O.K., so be it.


At the TMC (Feb.18th) I told the judge that I was not seeking any sort of custody, was willing to pay guideline support and was o.k. with the every other weekend access but I did want some mid-week visits. The judge said this was a deal of a life time and asked her if she agreed to this. She told the judge she was advised by our daughter’s teacher that it would ‘contribute to fatigue’ and affect her academic performance, so she did not agree. The TMC judge added on the endorsement :



- A list of our witnesses and list of documents that were on consent.

- That I may decide to amend pleadings (I think I have an idea what this means)

- That I may serve a RtA

- That we are both to serve a Financial Statement by Feb. 23rd

- That the TR is to be filed by Feb. 25th

- A last Meeting is on March 11th

- We are to serve each other with Minutes of Settlement by March 4th and a 1 page summary of the differences.


I’m hoping everything gets resolved at the Last Meeting, but if not then we are off to trial (March 22nd) to fight over a 5 minute to 3 hour visit once a week in addition to every other weekend access.


Here’s where I sit at this moment.


She filed a RtA on Feb. 11th with her TMC Brief. Until recently, I did not serve her with a RtA.


I filed my Financial Statement on time (Feb.23rd), she did not.


I served/filed a RtA on Feb.23rd along with a reply to her RtA.


She filed the TR on Feb. 25th along with a motion for March 2nd requesting permission to file her Financial Statement late.

I thought I was getting a little more accustom to these proceedings until the TMC. I really dropped the ball. First off, I did not file a brief. Second, I showed up to the TMC totally empty handed, not even a pen … This is out of character for me. So, we went through her RtA and I did not agree to many of the documents she supplied. So the judge made a list of witnesses to back up the documents. This is where I really really messed up I think. Our daughters teacher wrote a note stating that mid week visits would ‘contribute to fatigue’ (I know, crazy eh?) and for some reason I consented that it was admissible. I know, I know, but my train of thought at the time was …. I didn’t want to drag the teacher into this any further. I am guessing the teacher wrote this letter thinking I was asking for overnight mid-week access and it is the only thing in my way. The teacher is not on the list of witnesses from the TMC endorsement.


I’m considering writing the teacher and asking her what type of visit her views were based on and explaining my requests. Question number …..


1. Can I summons the teacher as a witness if I do not get a reply in time? And after I already agreed to the document she wrote? If so how long before court do I have to summons her?


Next issue, there is no documentation filed that I have reconsidered my request for full custody, etc. The whole TMC curse seemed to follow me a little too, I misunderstood the judge and filed my TMC brief after the TMC (on the Feb. 23rd). As I was walking out the door the clerk asked when my TMC was and I explained that it had past. Basically opened a can of worms. She explained that I can’t file it now, I said the judge told me too. We removed it from the CR. When I got home I realized the judge told me to file a reply to her MoS with my own MoS by Feb 23rd (not written on endorsement), not a TMC brief. Now, the TMC brief I tried to file contained a MoS that offered her full custody, support, etc. but since the brief was pulled from the CR, my MoS is technically not filed.


2. How do I file/serve a MoS? Attached to an affidavit?


As far as things are now, on paper anyways, we are going into trial both looking for full custody. I’m afraid she is going to bring in a bunch of witnesses as character references that will be pointless since I do not object to her having full custody but I will have to pay for their costs.


3. Is this where I can amend my pleadings? Do I have to withdraw parts of my answer? Am on the hook for costs then?


I’m a little on the fence about the whole Financial Statement thing. I have been asking her (previous) lawyer since May 2010 to file a Financial Statement, several times though email correspondence. I have submitted 3 Financial Statements and 1 affidavit supporting changes in my income. PLUS ! Her reason for submitting her Financial Statement late contradicts the attached documents. I realize that not consenting may postpone trial (which really wouldn’t be a bad thing for me, I think) and make me look like a stick in the mud, but the way I see it if I don’t ask for relief, I won’t get it. 50/50 btw, I had access the entire weekend prior to the due date and still got my Financial Statement filed on time.


4. Is it worth fighting this request to late filing motion? Can we make a final agreement at this motion?


As for the TR. It contained App, Answer, Orders, Endorsements, TMC Brief and an affidavit requesting an extension to file police notes late. Her reason, the judge advised her at the TMC to file any expert documents by Feb.25th (written on endorsement) and she just contacted FoI and they said it would take 2-3 weeks. I remember the judge saying that any expert documents need to be filed with a notice of submission or something. I have medical documents from the hospital emergency department that I need to put into my BoE.


5. What form do I use to file / serve medical records? What is the time frame on serving / filing this form?


Back to the TR. (which was filed/served on time) I was expecting it to contain a BoE of all the documents that she had in her RtA, or at least the ones on consent and there was no BoA. I have the majority of my BoE and BoA ready. I would like to get some police reports too but don’t think I have time … or the cash.


6. Can she submit a BoE and BoA now? Can she submit her RtA and my reply? I have to have my BoA and BoE filed and served 7 days before trial right?


I was impressed on how professional her TR looked. Obviously she made the trip to Staples as I am using all the same tabs, etc. So far I’ve been getting all my forms from the Family Law Rules Forms Archive but I cannot find a blank form to label the front of my BoA and BoE. I can only edit the blank sections of the forms from the archive; maybe I have MS Office issues. A couple days before she gave me the TR, the clerk had me fill out a request for forms. I’m guessing this is where she got the nice blue TR cover.


7. Do the clerks provide the TR, BoE and BoA covers? If not, where do I get the template?


The RoE. Of course she is going to question my evidence. My problem is, some of my evidence may not follow rules of evidence and it’s all I got against some pretty bad accusations. I recorded a CAS interview and a Police interview me and my partner were involved in. I had these recordings professionally transcribed and my partner will sign an affidavit saying the recordings are accurate and the people on the recordings are who I say they are. She is a major part of the interview/recordings. I remember reading somewhere that transcripts have to be submitted in a certain way (bound or something).


8. Can the CAS or Police come down on me for recording the interview without them knowing and then filing it with the courts as evidence? How do I submit a transcript properly or do they mean court transcripts are to be bound? Does this fall under expert documentation?

more below .....

[reesser]

And now the Minutes of Settlement. There are a ton of little things we need to hammer out. Here’s what she wants ; add her surname to the child’s name, I must ask permission to remove our child from Ontario during access, I must ensure our child is transported in an insured vehicle and properly installed car seat (not sure where this comes from), I must ensure our daughter is properly cared for hygienically (not sure about this either).

I am asking that her name not be changed, that both parents must inform the other if they plan to travel outside of Ontario during access and I do not want any clauses(?) of common sense and traffic laws in the finally agreement. I do not want to be brought into court for breach of contract(?) because her hair fell out of place or if I forget to signal while pulling into the parking lot for exchange. Her name already has a hyphen and she is proud of her last name. It’s a chocolate bar.

9. What is the norm regarding travel outside of the province during access for NCP and CP? If a judge agrees to add her last name, it is normally hyphenated alphabetically right?

She has the right to move where ever she wants, but I am afraid she will move so far that it will interfere with the access that will already be in place. I have seen some agreements that have restrictions as to how far the CP can move from a certain location.

10. What is the average distance a CP can move from a certain area so it doesn’t interfere with access?

So ya, fun stuff. All this over 5 minutes – 3 hours once a week after school …. On a non-school night even. All I can do is shake my head and move forward.

Thanx for reading all this …. I realize it’s way long, but I’m sure a lot of you are already use to reading long, number documents I hope I'm not asking too much here .... I'm running outta time and I kinda need some direction
thanx again

[reesser]

I can’t edit the title …. how embarrassing

[dadtotheend]

That's a whole lot of unknowns to have only three weeks before trial.

If you only have every other weekend access (and presumably this is an established status quo), you're going to one helluva time getting sole custody. Frankly, from what little you describe, you don't have a have a chance.

If I were you I would submit an offer to settle (you call it minutes of settlement but they don't become minutes of settlement until the two of you agree) that includes joint custody and has a parenting schedule at every other weekend plus one night a week. That's about the bare minmum you will get at trial.

It sounds like neither of you are going to be well prepared for trial. And if you allow this to go trial, you lose the ability to set the settlement terms yourselves. Then you expose yourself to forcing a judge who knows jack s**t about your kid to make a decision that neither of you will like. And that judge might be pissed off after dealing with a couple of ill prepared amateurs.

[Epona]

What time do you want your 4 year old child mid-week?
A four year old needs to be in bed around 8 - 8:30 PM, plus about half an hour to "wind down" before bed. Possibly she needs to be in bed earlier, depending what time she needs to wake up in the morning.
Do you want to take her to dinner?
Personally, I don't believe it's unreasonable to see your child mid-week every week (except when the mother has her on vacations, which you will also be entitled to), or even twice mid-week (like Tuesdays and Thursdays, as an example) depending how close you are living.
If you want to see her from 5:30 (and straight away to dinner) and return her at 7:30, I don't think a Judge will say no. As long as you show that you've thought about your daughter's needs (for healthy diet and sleep), I'm sure even your daughter's mother will possibly grudgingly agree (eventually), especially when she realizes it's "me time" and she can indulge in hedonistic pursuits like an uninterupted (sp?) bath. As your daughter matures, she'll be able to stay out later, as long as you remember to acknowledge the homework issues.
AS for the rest of your concerns, my head is reeling from trying to figure out all the short forms (and yes, I've been through the court system too, self-represented, though I had a trial "sprung" on me with no preambles).
For me, fretting over her last name wouldn't be a concern. My kids have their Dad's surname. Not hyphenated with my last name etc. It's a name.
The norm for travelling outside the province? Either parent can take child(ren) outside province. We have to supply the other parent with a detailed itinenary (sp?) with contact numbers. Travel outside of Canada is different. That also requires a travel letter (I don't like the term "Permission Letter") from the other parent. The parent travelling outside the country supplies proof of travel insurance and a copy of their passport to the other parent and the child(ren)'s passports as applicable.
As to how far away can one parent move with the child(ren)? If the move affects mid-week access, then some sort of make-up time has to worked into a changed access schedule. How much further? 10 minute drive further away vs. two hours vs. across the country? Presently my ex and I live about a 10 minute drive apart. I'm sure the court would let me move across the city (one Judge told me that). The court would probably permit me moving with the children to a 20 - 30 minute drive away, though I might be required to meet them halfway for pick-up or drop-off (how I detest those terms -- makes children sound like parcels!). Two hours away, the court might say, "No". But maybe not, depending on my argument on how the move benefits the child(ren). So you can suggest whatever distance you think is reasonable. She can move to the next region, but not two regions away. She gives you 60 - 90 days notice with an address where she's moving to...whatever you are comfortable with.
Not sure what the medical reports from the emergency department of the hospital and police reports have to do with everything though. Did you assault your wife and she went to hospital? I can see why shared custody would not work IF that is the history between you.
Good Luck!

[reesser]

So I spoke with duty counsel and got some questions answered.

1. I can summons the teacher as a witness. I must advise the other party of my decision and amend my pleadings.

2. As for filing a Minutes of Settlement from my understanding all I have to do is provide the other party with the offer and then sign an affidavit (of service maybe?) stating I did provide it.

3. The best way to withdraw is on consent.

4. The judge didn’t care to hear a word I said since we were so close to trial.

5. I still don’t know what form to use regarding police/medical records.

6. As far as I can tell the App is still able to file a BoA and BoE after the TR has been served.

7. The clerks do not provide the covers. I found the proper paper at Staples. It is called Cover Stock. I bought the assorted colors package. Also, I made a template for a blank cover sheet in Word. PM me if anyone wants a copy.

8. Still not sure about filing these recordings.

9. I’m not backing down on the name change thing. It means a lot to me.

10. Here’s what I wrote in the offer “It is understood that any relocation of either party must not interfere with the access schedule set out in this agreement”.

Thank you so much for your point of views on many of my questions Epona. I wish my ex had the same attitude you have. The whole treating our children like parcels got a good chuckle outta me.
I am not looking for any mid-week access past 7 PM. She is only four. I can’t see it being any worse than going out for dinner with her current family.

Dadto the end, your comments regarding loosing the ability to set the agreements on our own after trial starts are duly noted. Thanx.

I hope this helps others. Cheers and good luck.