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Legal Ease
Legal Ease, Lawyer
Category: Canada Family Law
Satisfied Customers: 100405
Experience:  I am a practicing lawyer and have also been an online professional for 5 years.
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I filed a custody case with an urgent motion back

Customer Question

I filed a custody case with an urgent motion back in March, at the court the Judge said I should have filed in the court closet to where the children reside. So he said he will transfer the case to the other court. I received nothing since, not from either courts. However, I just got served a completely new custody case (same children) by the new lawyer (not the one that attended the fist hearing). Can they do that (please quote the Act if possible)? please advise. thank you
Submitted: 2 years ago.
Category: Canada Family Law
Expert:  Legal Ease replied 2 years ago.
Can they do what exactly? Are you asking if the other parent can apply for custody with there being another motion from you?What province is this please?
Customer: replied 2 years ago.
Ontario. Yes, I filed for Joint as has been our written agreement and 8 year practice back in March, with an urgent motion because I was denied talking/visiting my children. They just served me with a new case - sole custody i.e there are two mtions reading the same case
Expert:  Legal Ease replied 2 years ago.
I suspect the new lawyer doesn't know that. I suggest sending the lawyer a letter indicating that a motion is already pending and asking that he/she reply to the first motion and file a cross motion if necessary at the same time.
Customer: replied 2 years ago.
the lawyer IS aware of the case, she marked 'yes' on the application indicating that "the parties or the children been in a court case before" and even said "The Respondent (me) started an action court file in the Superior Court of Justice Family Court Branch at London that preceding, the matter was transferred to Ontario Court of Justice at Sarnia" I was served application by Superior Curt of Justice (Sarnia)So my question that I need addressed; can they file a new motion while a prior motion regarding the same parties, children and case and should I attend this newly assigned mandatory Information Program for this new motion? Or should I just ignore all this new motion and no give it an legitimacy? Kindly quote the Act regarding this question. Thank you
Expert:  Legal Ease replied 2 years ago.
You most assuredly cannot ignore the motion materials or you will end up losing the motion by way of default. You can bring a motion now for an order that your original motion proceed and requiring the other party to respond to that motion and bring a cross motion at the same time. As I previously stated, they cannot start a new motion once you have already commenced an application. This is not about a specific law but rather procedural requirements. If you fail to respond to any court documents after the other party provides proof of service you can be noted in default.

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