Transfering to another court....

[court]

Hi all! Question. After the two court dates my ex has skipped on, I took all the correct channels to get him to disclose his income (30 days notice, registered letter with 10 more days notice, basket motion to have him disclose his income) the judge denied my motion and has said "file another motion and get this man into court to discuss this". I am simply pissed. I can't get him to show in court! He won't attend! I would like to continue fighting for my daughters and my rights in my town instead of driving the hour i have been to the city i started all of this in. How do I transfer a file? Is there a form i fill out? A motion to transfer? Why would a judge deny this request anyway? Any advice on this situation would be most helpful.

Thanks in advance!

 

[OrleansLawyer]

I can't get him to show in court! He won't attend!

Serve him properly and the motion will go ahead. If he doesn't show then your chances of getting the order tend to be significantly higher, for obvious reasons. Include a date by which he must comply. If he fails then bring a motion to have him put in contempt.

Any advice on this situation would be most helpful.

Speak to duty counsel at your local court house (or FLIC) for advice on how to transfer. I would seriously consider whether it is worth the effort, particularly since the transfer is not a guarantee and will in any event delay matters. An hour drive it not terribly burdensome.

 

[court]

So I have spoken to duty council, 3 times and I do what they say and nothing comes of it. Last time I spoke to duty council she actually filled out my motion for me as she saw it was being rejected over and over again, the judge still rejected it. All I am asking for is for a judge to force him to disclose his income. It's a no-brainer! It's not like I am asking for something unreasonable. I don't see the point in filing another motion requesting him to attend, just so he can ignore it and then I'll have to go back again......for what? What else can I try? I have not bothered hiring a lawyer because really...what do I need one for? Disclosing his income is something he is legally required to do every year. I am asking for what I am entitled to really....

Transferring is worth the effort. It ends up being an all day affair, I drive there, sit for hours waiting in line to get help, fill out my papers and then sit for hours waiting to file them. In my town which is significantly smaller, I won't be waiting for hours. It's just not feasible with a newborn.

 

[Tayken]

Hi all! Question. After the two court dates my ex has skipped on, I took all the correct channels to get him to disclose his income (30 days notice, registered letter with 10 more days notice, basket motion to have him disclose his income) the judge denied my motion and has said "file another motion and get this man into court to discuss this".

A judge will make an Applicant dealing with a non-responsive Respondent come at the court a few times before they can make a judgement without the other party (or their solicitor) present. Look at it more about dotting the "i"'s and crossing the "t"'s of demonstrating that the Respondent just well... Doesn't respond.

I am simply pissed. I can't get him to show in court! He won't attend! I would like to continue fighting for my daughters and my rights in my town instead of driving the hour i have been to the city i started all of this in.

The habitual residence of the child for which the Application was originally based on defines the court of competent jurisdiction. You would have to provide evidence that the child no longer "habitually resides" in that court jurisdiction anymore to move matters. Furthermore, you will have to demonstrate that you changed the habitual residence of the child in question for good reasons.

How do I transfer a file? Is there a form i fill out? A motion to transfer? Why would a judge deny this request anyway? Any advice on this situation would be most helpful.

A judge will make a determination for hearing the matters of custody and access and any matter relating to the child in question based on where they habitually resided prior to separation.

Only in extreme "forum shopping" situations do judges ever consider moving the jurisdiction to that of the "new" residence of the child. Especially if the parent moved without notice and consent from the other parent.

See:

http://www.ottawadivorce.com/forum/f3/habitual-residence-jurisdiction-forum-shoping-12010/

And:

Jurisdiction
22. (1) A court shall only exercise its jurisdiction to make an order for custody of or access to a child where,
(a) the child is habitually resident in Ontario at the commencement of the application for the order;
(b) although the child is not habitually resident in Ontario, the court is satisfied,
(i) that the child is physically present in Ontario at the commencement of the application for the order,
(ii) that substantial evidence concerning the best interests of the child is available in Ontario,
(iii) that no application for custody of or access to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident,
(iv) that no extra-provincial order in respect of custody of or access to the child has been recognized by a court in Ontario,
(v) that the child has a real and substantial connection with Ontario, and
(vi) that, on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario. R.S.O. 1990, c. C.12, s. 22 (1).
Habitual residence
(2) A child is habitually resident in the place where he or she resided,
(a) with both parents;
(b) where the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order; or
(c) with a person other than a parent on a permanent basis for a significant period of time,
whichever last occurred. R.S.O. 1990, c. C.12, s. 22 (2).
Abduction
(3) The removal or withholding of a child without the consent of the person having custody of the child does not alter the habitual residence of the child unless there has been acquiescence or undue delay in commencing due process by the person from whom the child is removed or withheld. R.S.O. 1990, c. C.12, s. 22 (3).

Children's Law Reform Act, R.S.O. 1990, c. C.12

Good Luck!
Tayken

 

[Tayken]

So I have spoken to duty council, 3 times and I do what they say and nothing comes of it. Last time I spoke to duty council she actually filled out my motion for me as she saw it was being rejected over and over again, the judge still rejected it. All I am asking for is for a judge to force him to disclose his income. It's a no-brainer! It's not like I am asking for something unreasonable. I don't see the point in filing another motion requesting him to attend, just so he can ignore it and then I'll have to go back again......for what? What else can I try? I have not bothered hiring a lawyer because really...what do I need one for? Disclosing his income is something he is legally required to do every year. I am asking for what I am entitled to really....

Transferring is worth the effort. It ends up being an all day affair, I drive there, sit for hours waiting in line to get help, fill out my papers and then sit for hours waiting to file them. In my town which is significantly smaller, I won't be waiting for hours. It's just not feasible with a newborn.

You have an Application (Form 8) before the court. Take a look at Rule 20 of the Family Law Rules and Form 20 and complete and serve this on the other parent. In 20 days after service, then file your motion and an affidavit attaching the Form 20 Request for Information and the notice of service on the other parent and confirmation they got it. Then seek the appropriate remedy from the court.

Duty Counsel should be able to help you fill out the Form 20 properly for a full financial request disclosure. The Law Society of Upper Canada published an incredible article that they should have read on what can be requested and *how* to request it. If the lawyer at FLIC doesn't know... Ask to talk to another one who knows something about family law and keeps current on the matters.

Good Luck!
Tayken

 

[court]

You have an Application (Form 8) before the court. Take a look at Rule 20 of the Family Law Rules and Form 20 and complete and serve this on the other parent. In 20 days after service, then file your motion and an affidavit attaching the Form 20 Request for Information and the notice of service on the other parent and confirmation they got it. Then seek the appropriate remedy from the court.

Tayken, pardon my ignorance as I'm still learning, but how is this any different than my writing him a letter to an email address I have proof that he uses and giving him 30 days to respond then registering and mailing him the same letter 30 days later and then giving him ten extra days to respond, then with no response finally filing the motion with the proof of my letters and delivery and receipt of them? Is this just not enough in a court of law?
And when you say "in 20 days after service" are you suggesting I give him 20 days after I have him served with the Form 20? Is that a reasonable amount of time according to the judge who ends up looking this over?

Thanks for your help

 

[ddol1]

the form 20 has been brought up before. when you pull it off the gov't site it will have the instructions such as the 20 days with it (pretty sure anyway - pull the form and review it)

 

[Tayken]

Tayken, pardon my ignorance as I'm still learning, but how is this any different than my writing him a letter to an email address I have proof that he uses and giving him 30 days to respond then registering and mailing him the same letter 30 days later and then giving him ten extra days to respond, then with no response finally filing the motion with the proof of my letters and delivery and receipt of them? Is this just not enough in a court of law?

It should be but, you are stating that it wasn't "good enough" for a judge to consider the matter without the other party present. I was recommending how to leverage the Rules explicitly and the various forms to do it. You should explicitly state that the request for disclosure is being done in accordance with the rules (explicitly Rule 13 of the FLR and Rule 20 of the FLR).

FLR=Family Law Rules

Courts of Justice Act - O. Reg. 114/99

Furthermore, you stated that a judge told you to re-file for some reason. Leveraging the rules and available forms only solidifies your argument that the other party is non-responsive.

And when you say "in 20 days after service" are you suggesting I give him 20 days after I have him served with the Form 20? Is that a reasonable amount of time according to the judge who ends up looking this over?

Thanks for your help

No differerence than what the Rules and form (Form 20) itself states (20 days). You are just leveraging the court process explicitly states which is easier to demonstrate and communicate to the other party in the matter and really demonstrates that you have given the other party the opportunity to settle the matter prior to filing a motion to resolve the issue.

Good Luck!
Tayken

 

[court]

Thank you! I will give it a whirl. You have been most helpful