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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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  #11  
Old 06-04-2011, 04:41 PM
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I'm not sure whether it would be a good idea to start tinkering with custody issues at the same motion. You would do well to prove that you have de facto primary residence, however.
  #12  
Old 06-04-2011, 04:53 PM
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Ya. The problem is that I am moving over 75km away 10 days after the case conference so i do not really have a choice.
  #13  
Old 06-04-2011, 07:12 PM
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You won't get an order at a case conference unless both parties consent.

There are limited exceptions which have to do with legal requirements for the case. For example if one party failed to submit a financial disclosure the judge would order that, consent or not, so that the case could go forward.
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Old 06-04-2011, 07:38 PM
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So no matter what happens if she disagree's and refuses to allow me her consent to move there is basically nothing I can do? Even if it is 100% clear she sees her child practically never.
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Old 06-04-2011, 10:15 PM
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Quote:
Originally Posted by viper56power View Post
So no matter what happens if she disagree's and refuses to allow me her consent to move there is basically nothing I can do? Even if it is 100% clear she sees her child practically never.
Mess is right, most of the time orders at conferences are done on consent of both parties. This is why I suggest you need to be prepared to compromise so that the justice will encourage the other party to consent. Justices will take an activist position if it spares further aggravation to the court. Occasionally orders do get made without consent, but not predictably as conferences are not stages for argumentation like motions.

Remember that the case conference is 'off the record' and therefore orders have to be consent based. Otherwise a conference has to be on the record like a motion so that orders can be re-dressed in appeal by pulling in transcripts if necessary.

Do your best, and if you don't get it from the conference file a motion immediately after the conference. You can even let the case justice know you will pursue the motion and they might encourage the other party to consent to terms during the conference and spare the court time. If you don't get consent order you might get an endorsement of your motion at the very least.

FG
  #16  
Old 06-05-2011, 09:18 AM
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Just to be clear what exactly is an endorsement and how much weight does it hold? I am assuming its the Judge putting in the court documents that he supports my moving with the child so that when it goes to a motion trial the other justice will see the endorsement and possibly rule in my favour because of it?
  #17  
Old 06-05-2011, 09:34 AM
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Originally Posted by viper56power View Post
Just to be clear what exactly is an endorsement and how much weight does it hold? I am assuming its the Judge putting in the court documents that he supports my moving with the child so that when it goes to a motion trial the other justice will see the endorsement and possibly rule in my favour because of it?
An endorsement sheet is where the justice sets out approval of orders. The justice also expresses opinions in an endorsement. An endorsement tells the court clerk what orders to make (temporary or permanent). For example, some basic endorsement sheets just say 'applicants motion of Sept 23, 2011 ordered to go' which means the justice has endorsed the motion made. The court clerk ultimately issues orders with a court seal on it.

Your questions of precedent has several implications that come from the context of all the actions, however simply put don't expect an endorsement of a single temporary agreement to influence the outcome of a final order made at trial. The trial will hear all aspects of the case to make a final order and may or may not consider previous orders.

The purpose of a case conference is to seek clarity in the case and the court prefers to drive settlement; this is why less than 5% of family law cases go to trial. The conference is not a forum for arguing motions for a win.

FG
  #18  
Old 06-05-2011, 09:41 AM
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Wow 5% i would have thought it would be more. Can I expect the Justice at a Case Conference to voice her or his opinion on the outcome or likely hood of a party getting what they asked for by the end of the court case.
  #19  
Old 06-05-2011, 11:22 AM
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A justice should voice their opinion of the likely outcome, this is a large part of the reason for the conference system. That said, sometimes it doesn't happen.

The idea is this, the courts want to minimize the number of cases that go to trial both for your (the litigants) benefit and for the taxpayer's benefit. The justice will suggest what a likely outcome is and will suggest a compromise position for both parties so that hopefully a settlement can be reached.

Please understand that "compromise" doesn't mean that the party with the strongest case will get what they want. A justice will probably suggest a middle position, for example a little less support paid or a little more time with the NCP etc in order to encourage a settlement between the two parties.

That won't always happen and it depends on the attitude of the litigants and how black and white the case is.

In your case the justice will very likely suggest either to you or to your ex that you don't have a strong case and you should consider settling out of court otherwise you will get hosed for costs. In your case it's hard to compromise on a move, you either move or you don't. I have no idea if you can present a strong case or not.

I will suggest to you that making the purchase and arranging the move before settling the issue of whether you can do it or not weakens your position. Please address this carefully. If you and your ex are at odds over this and you went ahead and bought a place and have a date for the move, then you are the antagonistic party. It doesn't appear to the courts that you are co-operating or willing to work with your ex on the surface.

You need to lay out your case to show every single effort you have made to work this out without going to court. You need to detail the ex's lack of involvement. Detail each attempt you made to communicate. Detail each time the ex refused to discuss it or answer a letter or email. Be honest and forthright that you went ahead and bought a house and made plans to move because the ex had shown complete indifference to you, and you felt this indicated they weren't concerned.

You must show this with every possible detail. Don't assume that a judge will just "get it". That is not their job. Their job is to look at the evidence that actually present, not to figure out what is obvious to you.

The hardest part is for you to look at your situation and think certain things may be a "no brainer" and obvious and not see what it is that you have to explain carefully step-by-step. You must show step-by-step that what you decided is reasonable. No one will figure that out on their own, that is not how the court system works.
  #20  
Old 06-05-2011, 05:04 PM
viper56power viper56power is offline
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Thanks a lot guys. Your going out of your way to help people and it is greatly appreciated by me and I am sure many other people. One quick question tho is how much detail goes into a case conference brief or do i use affidavits to really pour on the evidence to my case.
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