Temporary SS and CS
- Thread starter Leviathan
- Start date
FWB
New member
To help in understand what you are on about
http://www.ottawadivorce.com/forum/f11/interim-ss-cs-16426/
http://www.ottawadivorce.com/forum/f11/interim-ss-cs-16426/
Leviathan
New member
I'm sorry FWB...what was that??...you posted a previous post from me back from October.
my question NOW is if the judge has awarded TEMPORARY CS and SS (The CS is going to end in March if the step child isn't in school), there's more than likely going to be SS awarded, correct??
if I go infront of a COMPLETELY different judge that awarded the temporary motion, can this new judge say other wise and completely change things around and find there's little obligation for SS??
No offense, but there is not nearly enough information available to give you a meaningful response.
We are a bunch of amateurs that have some limited experience going through court ourselves. We cannot be expected to tell you what a judge will decide based on two lines of information.
According to your earlier posts, you had an EMERGENCY motion against you requiring both spousal support and child support for an adult child whom is out of school. This makes no sense on the surface.
What are we supposed to say?
We are a bunch of amateurs that have some limited experience going through court ourselves. We cannot be expected to tell you what a judge will decide based on two lines of information.
According to your earlier posts, you had an EMERGENCY motion against you requiring both spousal support and child support for an adult child whom is out of school. This makes no sense on the surface.
What are we supposed to say?
Leviathan
New member
I was just curious mess...was hoping someone had gone through the same kinda thing...maybe give me more of an idea of what I could expect
Generally emergency/interim motions are considered "without prejudice" that means they are 100% temporary and a proper trial with evidence etc... is not officially bound by the first judgement and in fact the real judgement can retroactively apply in some cases. (This is based on quebec law but might be similar to ontario)
I generally agree with what links said, it would apply in Ontario too.
An emergency motion is rare. There is no way to say if such a decision would be valid even for a regular motion, much less for a trial.
If you want an opinion about what a decision might be, you have to say what are the arguments for and against, and what supporting facts are available.
An emergency motion is rare. There is no way to say if such a decision would be valid even for a regular motion, much less for a trial.
If you want an opinion about what a decision might be, you have to say what are the arguments for and against, and what supporting facts are available.
Leviathan
New member
Thanks Mess and Links..you're probably right Mess, I'm being "vague" with my posts for a few reasons obviously...don't really want to give out too much info...seeing as I'm still in court and fighting the CS for the adult child.
I'm a little relieved to hear that the laws are similiar in some respects between the 2 provinces.
It's surprising to hear that this emergency motion is "without prejudice"
as is common (I'm guessing) during our next appearance (settlement) I'm supposing it'll be a completely different judge.
and by the sounds of it, he'll have no idea about the emergency motion, am I correct Mess/Links??
he'll obviously know I'm paying CS and SS on in interim basis right now...
arabian
New member
Often people refer to an "interim" motion as an "emergency" motion. What is the specific wording on your order? If you don't want to put it on the forum then just PM Mess or Links so they know specifically what you are referring to.
I believe all orders would be on file and part of your continuing record at the court house.
I believe all orders would be on file and part of your continuing record at the court house.
Leviathan
New member
the STBX's lawyer referred to it as an EMERGENCY interim motion in her filings to my lawyer.
The courts order refers to it as interim...I'll refer to it as interim from now on
you're right...if I need more specific answers, I'll PM directly...
FightingForFamily
Member
Being awarded an interim order is not necessarily an explicit nod to entitlement to SS in the final order, but it is close. Unless circumstances have changed between the interim order and the final order it is quite likely to continue in the same or similar amounts.
Regarding the adult child, that is indeed an interim thing that was decided for the short term before there was sufficient time or evidence to give a final ruling on it. As was stated, if on the evidence, the interim ruling was incorrect, it is theoretically possible to get it reversed and the amounts repaid. However I would imagine this is very rare and cash would almost never exchange hands. It could be used as a credit towards reducing arrears, covering costs orders or changing the equalization amount though.
Regarding the adult child, that is indeed an interim thing that was decided for the short term before there was sufficient time or evidence to give a final ruling on it. As was stated, if on the evidence, the interim ruling was incorrect, it is theoretically possible to get it reversed and the amounts repaid. However I would imagine this is very rare and cash would almost never exchange hands. It could be used as a credit towards reducing arrears, covering costs orders or changing the equalization amount though.
Leviathan
New member
Thanks arabian...I imagine it'll cointinue (SS) the question is how much and for how long...(depending on the judge's decision)...
right now there's arrears because the IS was back dated to August..the IS was awarded in Oct
Leviathan
New member
great...thanks for the info FF...both you and Arabian have given me some good info...
An emergency motion is one that is heard without any notice. The courts have time period every day to hear emergencies. You walk in, take a number, and wait to be called up.
The emergencies have to be emergencies: for example if you are about to be thrown out of your apartment because you can't pay the rent, and the other party hasn't paid any support. If it is something that could wait a few weeks, you are expected to seek a normal motion date, or be able to show that there were none available. Tayken posted a detailed explanation here: http://www.ottawadivorce.com/forum/f3/dont-panic-what-defines-urgency-before-court-13291/
Emergency motions don't allow for any cross examination of evidence, and often the other party may not even get to appear unless they have some warning. Orders coming out of emergency hearings should never be considered final.
Motion orders themselves are "without prejudice" in the sense that the fact that a judge made an interim order isn't proof of anything. You still should have a trial date, and evidence at trial would be facts of the case, not the "fact" that a judge made an interim order. You might quote a motion judge's reasoning, but this isn't a fact of your case, it is just case law.
The emergencies have to be emergencies: for example if you are about to be thrown out of your apartment because you can't pay the rent, and the other party hasn't paid any support. If it is something that could wait a few weeks, you are expected to seek a normal motion date, or be able to show that there were none available. Tayken posted a detailed explanation here: http://www.ottawadivorce.com/forum/f3/dont-panic-what-defines-urgency-before-court-13291/
Emergency motions don't allow for any cross examination of evidence, and often the other party may not even get to appear unless they have some warning. Orders coming out of emergency hearings should never be considered final.
Motion orders themselves are "without prejudice" in the sense that the fact that a judge made an interim order isn't proof of anything. You still should have a trial date, and evidence at trial would be facts of the case, not the "fact" that a judge made an interim order. You might quote a motion judge's reasoning, but this isn't a fact of your case, it is just case law.
Tayken
Well-known member
Slight correction: An emergency (urgent) motion is one that is filed on short notice. When it is "heard" is dependent on the schedule of the court house and the matter. Its a really ugly process because well, there isn't much "process" involved and each court house is different and dysfunctional.
A motion brought "ex-party" is heard without any notice and same day.
Generally, an urgent (emergency) motion has notice just very short notice.
To have no notice (in Ontario) it has to be brought without notice ("ex-parte") under Rule 14.(12) of the FLR and as an urgent matter.
See Rule 14 of the FLR.
A simple resource that breaks down Rule 14.(12) better than I can:
http://c.ymcdn.com/sites/www.ccla-abcc.ca/resource/resmgr/pp-family/emergency_motions_rule_14(12.pdf
Depends on the jurisdiction. They have specific days when urgent matters are heard ex-parte.
You can still file it as urgent under the Rules so that the 30 day periods are shortened and a return date can be days instead of months.
Also, to add... They should not be used improperly because they can come back to haunt you. A custody and access evaluator may not pay much attention to someone improperly miss using the justice system but, a judge WILL NOT ignore the conduct.
Also, the requirements for evidence on urgent and ex-parte motions are VERY different. You are expected as the sole filing party to disclose everything... I mean everything... If you are going to be living with someone who is questionable... you have to state that fact upon filing your motion not months later when the other party produces the evidence.
98% of "emergency" ex-parte motions are brought all for the wrong reasons... I caution anyone considering one... You will be hard pressed to find a REPUTABLE lawyer who will bring one forward ever.
The costs for bringing an improper "emergency" ex-parte motion averages (on cost awards I have evaluated) between 25,000 to 50,000 to the losing party. Something to consider that most negative advocate solicitors who are known to pull this "stunt" won't tell their clients... because they are not the one's who generally have to pay costs for such nonsense.
Good Luck!
Tayken
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Leviathan
New member
reading everything you just posted here Tayken makes me realize the motion they served upon me, didn't fall anywhere within these guidelines.
As Arabian said to me earlier, don't take anything from the STBX's laywer too seriously (so to speak)...I haven't and I won't.
it was obviously just a motion to seek temporary SS and and CS.
took the judge a few days to decide the whole thing...
I'm just receiving all the letters now from FRO..
arabian
New member
Sometimes opposing lawyers agree to a motion on consent. This can happen when the two lawyers agree that the interim motion would succeed in court. Party initiating the order draws it up and faxes to opposing counsel and then it is submitted to court. This is not uncommon.
A sleazy lawyer will agree to this and then later refer to the matter as "urgent" or "emergency."
A sleazy lawyer will agree to this and then later refer to the matter as "urgent" or "emergency."
FWB
New member
@Leviathan.....
Just want to remind you though that Child Support, is the RIGHT OF THE CHILD!
Am not saying this is the case here, but nobody in their right mind should deny their BIOLOGICAL child this. Step child/ren, is an exclusion to this especially if the bio-parent is already paying CS. Recent cases have concluded that in-loco parentis claims are TRIAL cases, and no interim CS should be awarded
Just want to remind you though that Child Support, is the RIGHT OF THE CHILD!
Am not saying this is the case here, but nobody in their right mind should deny their BIOLOGICAL child this. Step child/ren, is an exclusion to this especially if the bio-parent is already paying CS. Recent cases have concluded that in-loco parentis claims are TRIAL cases, and no interim CS should be awarded