Hello,
I received a Notice of Motion/Affidavit to variy the existing court order in regards to custody/guardianship, access and restraining to move out of the part of the city, Costs and further relief. I have no idea of Canadiann Court proceedings and my english is rather on the tourist level than understanding english law phrases. I can not afford a lawyer and legal aid was denied due to govern. cut backs. I went to duty councel at court but they just gave me the forms and no advice. I have to defend myself and the child. My questions:
1. After I filled the papers do I have to go to any Notary Public to stamp the copies and swear? Or does that take place in the other partys lawyers office?
2. whom do I serve the Response (I deliver them myself) to the other partys lawyer or in at Supreme Court registry?
3. Do I attach all evidence like original photos as Exhibit?
4. What does this mean? "A declaration pursuant to Section 57 of the Family Relations act R.S.B.C. 1996, Chapter 128 and amendments thereto that the Plaintiff and Defendant have no reasonable prospect of reconciliation with each other"
5. What is the difference between reasonable and generous access and liberal and generous access?
I am totally lost. Have 3 days to get this sorted. This takes place in Canada but I think there isn't much difference in the US.
Hope you can help. Thanks so much.
You are assuming all risk by adopting any of my comments below. My answers are based on my knowledge of U.S. Civil Procedure, which is derivative of English Procedure, and smiliar to Canadian, but still just an educated guess on my part, so I strongly suggest that you do not depend on my advice without consulting a Canadian attorney.
My questions:
>
>1. After I filled the papers do I have to go to any Notary
>Public to stamp the copies and swear? Or does that take place
>in the other partys lawyers office?
Assuming that the papers require verification of signature, then you will need a Notary, and NOT the other party's attorney -- that is your opponent.
>2. whom do I serve the Response (I deliver them myself) to the
>other partys lawyer or in at Supreme Court registry?
You serve a copy of the response on the other party's attorney, and you file the original with the court clerk, with a certification of service, after you serve the other party. Generally, a response may be served by mail, but in many jurisdictions, it must be certified and mailed by a neutral third party, not you.
>3. Do I attach all evidence like original photos as Exhibit?
You attach copies of evidence to both the original response filed with the court and to the copy served on the other party. You only attach copies of evidence if you refer to that specific evidence in your pleadings and affidavits. And, you never file originals of evidence with the court, because if it gets lost, then that is the end of the evidence.
>4. What does this mean? "A declaration pursuant to Section 57
>of the Family Relations act R.S.B.C. 1996, Chapter 128 and
>amendments thereto that the Plaintiff and Defendant have no
>reasonable prospect of reconciliation with each other"
It means that the declarant states that he/she believes in good faith that no negotiated settlement of the issues raised in the motion can be resolved without the assistance of the court.
>5. What is the difference between reasonable and generous
>access and liberal and generous access?
In this context, "reasonable" means "ordinary," or "normal" or "prudent," etc. "Liberal" means "expansive," or "relatively unconstrained." "Liberal and Generous" is a poor choice of words, because both words have substantially the same meaning.
Thank you, that makes sense.
Can I ask in my Affidavit for something I want to have changed in regards to the existing court order or must I respond only to what is stated in the other partys NoM/Affidavit? Like: in the current order child is restrained not to move out of the province. The child and I are German citizen with childs grandparents/extented family in Germany. When I ask the NCP for permission to visit my parents/extented family in Gemany he denied.
Thanks.
>Thank you, that makes sense.
>
>Can I ask in my Affidavit for something I want to have changed
>in regards to the existing court order or must I respond only
>to what is stated in the other partys NoM/Affidavit? Like: in
>the current order child is restrained not to move out of the
>province. The child and I are German citizen with childs
>grandparents/extented family in Germany. When I ask the NCP
>for permission to visit my parents/extented family in Gemany
>he denied.
Yes, you can ask for affirmative relief in your responsive pleading and affidavit. The key is to be "reasonable" and only interested in the child(ren)'s welfare. If you communicate this to the court, you will be ok.
Is there a way to extend the time (like 3-4 more days) given to respond to a Notice of Motion/Affidavit being English second language and not familar with writing and filing the papers. Who do I ask for extension, the other partys lawyer? Thanks.
>Is there a way to extend the time (like 3-4 more days) given
>to respond to a Notice of Motion/Affidavit being English
>second language and not familar with writing and filing the
>papers. Who do I ask for extension, the other partys lawyer?
>Thanks.
If Canadian courts are anything like their U.S. counterparts, then as long as you manage to respond within a reasonable time prior to the actual hearing date, you will probably be ok. I would contact the other attorney and ask that he stipulate to allowing you more time for a response, but if he refuses, then just tell him that you will get him the response by date X, and then leave it at that.
A lot of this issue, depends on how busy the jurisdiction and the other lawyer is. If it's a real busy legal system, everyone will be waiting for the last second to do everything, and the judge won't read your pleadings until AFTER you've had your oral hearing, and then only if he/she can't decide what to do based on what he/she's just heard.
In a rural jurisdiction, where the judge maybe sitting around in chambers watching TV half of every day, you should avoid any opportunity to allow the court to play God, because he/she will, out of shear bordum, and so being late with a pleading could create problems for you.
The court isn't going to ignore your response if it's not timely made, but you do risk some sort of sanction, such as paying for any costs to the other party or the court associated with your being late, and also to the risk that opposing counsel will file some other pleading to gain a default against you.
The latter possibility is greater in courts where the judge has discretion to decide the matter on the pleadings and evidence alone and without an oral hearing. In some jurisdictions, an oral hearing is automatic (e.g., California), in other's you must ask for a hearing or your motion will be decided without a one (e.g. Georgia).