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

View Poll Results: How Should We Proceed?
Serve & File A Motion of "Possible" Contempt ASAP 3 75.00%
Wait & See What Happens; Proceed With Motion if Required 1 25.00%
Voters: 4. You may not vote on this poll

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  #81  
Old 12-16-2009, 07:44 AM
#1StepMom #1StepMom is offline
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Independantgal, my husband was in court all day Friday trying to do that. He was told that there is not enough time to serve a motion to be heard before the holidays, and because we have a conference date already set for February, was advised by counsel at FLIC to wait and see what happens.

I think you're right... there definitely needs to be a motion of contempt filed. But we won't be able to file it until after the holidays, when we find out whether or not she witholds access and the travel consent. Until then, we really don't know what she will do - if anything.

But, I do like your idea to serve and file the motion before the holidays (as a scare tactic) even if it's heard after the holidays. But again, until Christmas Day, we won't really know if she's in contempt of the court order or not. Maybe she will stop her demands and let us pick-up the child as agreed-upon, with the travel consent signed.

Do you think it's possible/right to file a motion of contempt when the other party is only "claiming" they will be in contempt of the order, but hasn't actually done so yet?

Last edited by #1StepMom; 12-16-2009 at 07:52 AM.
  #82  
Old 12-16-2009, 09:05 AM
independentgal independentgal is offline
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If you have in writing that she is refusing to sign, or that she has put other conditions on her signing the permission to travel form, it IS contempt if it is written in your court order that each party must sign appropriate travel documents to permit travel.

If you thought about it this way, the woman could say up until your flight/train/ car leaves on the trip, that she has until 1 minute before to sign it before she is in contempt. That is not the meaning of the court order. She IS in contempt if she has said to you in writing and in person/phone that she will not sign it until...

You can serve her now with the Notice of Motion and Affidavit with the court date your hubby got told is available in January. You can even file it with the courthouse. I would definitely do it this week!

Do you have enough evidence? Although the fact that you attempted on several occasions to get her to consent to sign it, and the fact that it isn't signed by the time you filed the motion is confirmation enough, don't you agree?

She has to have a valid defense. She does not. She cannot bring monetary issues into access time. She is in contempt. She is wilfully in contempt. There is no defense that she could say. Remember, in order to prove contempt there is a 3-pronged test. Write the paragraph quoting this somewhere in your affidavit if you like.

The test is referred to here in a ruling in Hobbs v. Hobbs 2008 Ont. C.A.

The Court of Appeal applied the criteria with respect to contempt of court laid out in G.(N).) c. Services aux enfants & adultes de Prescott-Russell (2006) Ont. C.A.

‘A three-pronged test is required. First, the order that was breached must state clearly and unequivocally what should and should not be done. Secondly, the party who disobeys the order must do so deliberately and wilfully. Thirdly, the evidence must show contempt beyond a reasonable doubt. Any doubt must clearly be resolved in favour of the person or entity alleged to have breached the order.’

Having applied the three-pronged test, the court concluded that Mr. Hobbs was in contempt of court and dismissed his appeal. Mr. Hobbs’ failure to make disclosure was disastrous for him. Not only was a large cost order awarded against him in the lower court but also in the Court of Appeal. The courts thereby highlighted the necessity of complying with court orders.


Just serving her personally with the motion will set the ball in motion I think for her to comply.

It is unacceptable for you to have to wait on pins and needles to get permission to travel until Christmas Day(are you going, or aren't you going?) She has already refused to sign it. Once is enough. You aren't obligated to beg her(although that is what she wants). She is an adult. She is refusing to comply with a simple provision of a court order. She should know the penalties are severe if contempt can be proven. I have seen a few judges tell a contemptor (in cases where it cannot be proven without a reasonable doubt that they wilfully disobeyed) to bring their toothbrush to court next time if this issue is revisited. lol

Last edited by independentgal; 12-16-2009 at 09:09 AM. Reason: added to
  #83  
Old 12-16-2009, 09:12 AM
independentgal independentgal is offline
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You cannot get in "trouble" for bringing the motion, and then she decides to comply after the fact. Courts are not stupid, they know that it usually takes a motion to be filed for people to take things seriously. If you need to call the courthouse to withdraw the motion after she signs, that is no problem.
  #84  
Old 12-16-2009, 06:00 PM
#1StepMom #1StepMom is offline
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UPDATE:

Well, she had her consultation with her lawyer, and...
  • She will allow access as agreed-upon;
  • She will provide the travel consent and travel documents;
  • She plans to bring the matter up in court and if the judge believes she is within reason with respect to the unresolved issues, she will request full reimbursement of all related costs, asking the judge to take into consideration "the 19.5% interest rate on her credit cards, the hours spent preparing court documents, the related stress, the time spent away from other responsibilities, the number of absences from work and income lost, and the impact the court proceedings have on her job security."
After reading her 4-page email (yes, FOUR pages in Word, single spaced, Times New Roman, size 12)... my husband and I just looked at each other and said "let her bring it!" As far as we're concerned, she will allow access and provide the travel consent and documents... so we can go on our planned holiday. What she plans on bringing up in court is her perogative. We're going on vacation!

Wooohooo!!!!! :-)

Thank you all for all your great support and advice!
  #85  
Old 12-16-2009, 07:38 PM
today today is offline
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Very happy to hear that stepmom, yeah! Good for you!!!
  #86  
Old 12-16-2009, 10:15 PM
mominont mominont is offline
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Glad your going on vacation!!!

My guess is that she didn't 100% agree with the legal advice.

Enjoy your vacation and have a couple extra drinks
  #87  
Old 12-17-2009, 08:06 AM
#1StepMom #1StepMom is offline
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Quote:
Originally Posted by mominont View Post
My guess is that she didn't 100% agree with the legal advice.
Of course she didn't. That's why she's threating legal action if we don't agree with her interpretation of the sharing of daycare expenses, and that's why she threatened to ask the judge for full reimbursement of costs if she ends up having to take it to court.

My husband is standing firm and refusing to agree to anything unless it's all properly legally documented and court-ordered. Even if she starts making financial demands by asking the judge to order payment of her credit card interest, wages lost, etc. (Which she has experience "winning" in past court appearances, unfortunately.)
  #88  
Old 12-17-2009, 09:52 AM
independentgal independentgal is offline
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That is awesome news! So glad it turned out this way for you guys! What a great Christmas present!
  #89  
Old 12-17-2009, 02:04 PM
billiechic billiechic is offline
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WHOOWHOO! Have a GREAT holiday! I am so glad that you have finally been able to get what is right. I hope the judge laughs in her face.
  #90  
Old 12-17-2009, 02:13 PM
#1StepMom #1StepMom is offline
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Quote:
Originally Posted by billiechic View Post
I hope the judge laughs in her face.
I hope so too. But based on the court experience we've had... she just may get her way. :-(

But right now, that's not the issue. We get to go on holiday as planned, with our son, and enjoy our vacation together.

We'll deal with the money-grubbing-wench in the New Year! ;-)

[Did I mention that in her email, she put a condition that if the daycare issue isn't resolved by January 1st, she is going to take it to court? She is actually trying to get us to argue with her DURING our holiday! LOL!]
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