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Attached as Exhibit “A” to my Affidavit is a copy of the ____________.

Why is the government spying on Aboriginal communities and their advocates? What is it the government is so threatened by that it has to spend millions on surveillance on Aboriginals? As far as I know, one would only be afraid of someone if one is guilty of a wrongdoing. Is it that the government is afraid of the truth? The truth that is buried under the colonial version of the history? Or is it because the government is planning another invasion on the freedom of the Aboriginal peoples? What could be the purpose and goal of such surveillance? Do the taxpayers know that their hard-earned money is spent on spying on the First Peoples of This Land?

“Newly exposed internal documents from Indian Affairs and the RCMP show that shortly after forming government in January of 2006, Prime Minister Stephen Harper had the federal government step up intelligence gathering on First Nations to anticipate and manage First Nations political action across Canada.”  ― Indigenous Peoples Solidarity Movement Ottawa.   

Ottawa has a file of considerable thickness on Cindy Blackstock, an advocate for First Nations children and youth. In 2007, her organization, First Nations Child and Family Caring Society of Canada  filed a lawsuit against the government alleging under-funding of child welfare services on reserves.

“They have found it necessary to not only put one employee onto tailing, but if you look at the records there are numerous employees on the government payroll who are being asked to comment on what I am doing or to violate my privacy by going on my personal Facebook pages,” said Blackstock. ― An excerpt from an article by Annette Francis on APTN National News.  

This is something we came to know about but there are many others incidents and surveillances that we don’t come to know of. Looks like advocates for youth and children are now a threat to national security in Harper terms. There are millions available to spend on spying on Aboriginal peoples and their advocates but there are all kinds of cuts to public services because the government doesn’t have money to balance the budget. It is a fool’s politics or unless we are looking at a government that is trying to make sure that the Aboriginal peoples' strength doesn't become their success.  

“The Defenders of the Land (DotL), a network of Indigenous Communities, today condemned reports that in 2007, the Harper government established a national and international police surveillance network to spy on Indigenous Peoples and their supporters for defending Indigenous Peoples' self-determination and land rights. The RCMP surveillance operation shared its findings with private industry.” ― The Boundary Sentinel The Boundary Sentinel.

The Intelligence Report compiled by the Department of National Defence since January 2010 speaks for itself although I don’t see anything intelligent in it. It is a violation of the basic rights of a sovereign nation―Sovereignty of the Aboriginal Nations. Such an act against any other nation of the world would be considered an atrocity, a violation, and a crime. But the same act against Aboriginal Nations is being defended as a matter of national security. It is either the politics of convenience or of oppression but definitely doesn't represent the democratic values being preached to the world.

Pay special attention to that CERTAIN DATE because it means that:

—-You must file a Refraining Motion with at least 2 business days notice to FRO.

—-You must be before a judge before that CERTAIN DATE.

—-If you try to file a motion just a day before that CERTAIN DATE, first of all, the chances are that you may not even complete the paperwork in time and secondly, you most certainly won’t be able to see a judge as the judge won’t see you without a FRO representative being present. Under very exceptional circumstances, you may get lucky and get before a judge but mostly, people are turned away by staff at the filing stage due to short timeline.

So here is what you must do when you receive a letter from FRO with a specific date. Don’t sit on it as it may cost you your driver’s license.

IMPORTANT:  To even start the process, you must have a copy of your final support order. It will help you determine which level of court you will be filing your refraining motion. Take a good look at your order, if it was issued in Superior Court of Justice (formerly called Ontario Court-General Division), then you must file your refraining motion at Superior Court of Justice.

And if your order was issued in the Ontario Court of Justice (formerly called Ontario Court-Provincial Division), you must file your refraining motion at the Ontario Court of Justice.

If you don’t have a copy of your court order, you must obtain it from the court it was issued at. It is required and will be attached as an Exhibit to your Affidavit as explained below.

The forms you will need:

Note: When filling out parties’ names on these forms, remember that other party is FRO, not your ex. So, it should read:

FRO for the benefit of _______(fill in your ex’s name or whoever the other party in the court order)

Form 14, Notice of Motion - Refraining:  I have filled out the standard clauses and order sought. Please fill in the parties’ name and contact info.

Form 14A Affidavit for Refraining Motion:  This is where you need to explain why you are filing this motion. Explain the financial hardship involved, if any, and the reason why your driver’s license is important to you and what steps you are taking to resolve the issue. Write it all down in numbered paragraphs. This form needs to be commissioned.

There are two documents that must be attached as Exhibits to your Affidavit and they are:

(a)    Copy of the letter you received from FRO with that CERTAIN DATE.

(b)   Copy of your final court order.

Any other documents you attach to your affidavit must also be marked as Exhibits but unless you have some pressing documents that you want the judge to see, save the rest for your Motion to Change Final Order that you will need to file within 20 calendar days after the Refraining Order is signed by a judge. Read my Motion to Change Final Support Order blog on this issue.

Form 13 Financial Statement:  Now you can also fill out the FRO Financial Statement that you can download from FRO website, but I say stick to Form 13 because you can simply copy this info onto another Form 13 for your Motion to Change Final Order package which is the next step after you are done with the Refraining Motion.

This form must be commissioned and you must also attach a copy of:
—-Your last 3 years of Notices of Assessment or Re-assessment; and
—-You most recent paystub/social assistance/EI stub.

Refraining Order: This is a draft order which the judge will sign when granting your refraining motion. Even if you don’t have it, the filing staff will hand it to you to fill out. No big deal, but fill it out if you can. It will save you time at the filing counter. The only fields you will fill out are the court file number and the parties’ names. Rest can only be completed after the judge makes the order.

Affidavit of Service Form 6B for Refraining Motion: You will fill this form out after FRO is served.

After your forms are all completed, signed, and commissioned, you must make 2 photocopies (make only 1 copy if you are serving FRO by fax, which most people do hold on to this thought until you read the rest of this post).

Now, filing procedures are different for Superior Court and Ontario Court. I will list them both separately.

Ontario Court of Justice:

—-The court staff will prepare the Continuing Record and issue the court date.

—-The court staff will keep the original in the file for the judge and return the stamped photocopy to you.

—-A copy must be served on FRO and you can do so by faxing to FRO at 416-240-2401.

—-Then you need to file your Affidavit of Service, Form 6B in the court file at least 2 days before the court date. Most clients go out, fax it, then return to the counter to file their Affidavit of Service, especially if the court date is next day or just to spare them another trip to the courthouse. I have partially completed the Affidavit of Service for your convenience.

—-Remember to attend your court date and once you get the Refraining Order, Motion to Change Final Order is next and you only have 20 calendar days to file it.

Superior Court of Justice

—- You may call the courthouse (here is the link to the courthouse addresses) you will be filing your motion at to find out what days they hear the motions but I can tell you that in Brampton, the motions in Superior Court of Justice are heard every Tuesday, Thursday, and Friday.

So, pick any of these days, write the date on the Notice of Motion, and time would be 10:00 a.m.

When selecting the date, make sure you serve the FRO at least 4 business days before the date and the motion has to be filed at least 2 days before the date you have chosen. You can serve FRO by faxing your Refraining Motion documents at 416-240-2401. Make sure you obtain the fax confirmation.

I suggest that you select a Tuesday if you are filing in Brampton because FRO lawyers are present in court on Tuesday for Ontario Court FRO court that is held every Tuesday.

—-After service on FRO, complete your Affidavit of Service, Form 6B. This form needs to be sworn but the clerk can commission it at the time of filing so don’t waste your time in FLIC waiting hours just to get this signed. Attach your fax confirmation to it.

—-Take your original motion material as listed above, get a ticket for filing at the Superior Court filing counter and file your documents with your completed Affidavit of Service.

Remember to attend the court date and always bring your court documents with you. Once your Refraining Order is signed, you have 20 calendar days to file your Motion to Change Final Support Order.

I have flagged the 20 calendar day timeline to file Motion to Change a few times because a lot of  people forget this step and when no Motion to Change is filed, FRO sends another letter for suspension of driver’s license and the cycle continues and next time, the judge may not grant the Refraining Order as it is only a temporary measure until the root cause of the problem, i.e. the outstanding arrears originated from the final support order is addressed.

Also using the link to courthouses in Ontario provided above, call the courthouse where you will be filing your motion and confirm that the Style of Cause (applicant and respondent) is listed correctly because despite the same Family Law Rules, the procedures may be different in each courthouse so just make sure that FRO being listed as the Respondent would be acceptable. You may be surprised how different courthouses do things differently. And always get the name of the person you speak with because when you get to the filing counter, some other staff may have a completely different opinion as to what the 'correct' Style of Cause should be.

And remember, to always carry a valid photo ID when going to court to have your forms commissioned. Without a valid photo ID, the advice lawyer in FLIC or the court staff will not commission your forms.

This is the case when there is no consent or agreement between the parties and you are taking the other party to court to have the order changed by the judge.

Very first thing you need to make sure is that your order is marked final. If it is temporary, please follow the procedure in blog: Motion to Change a Temporary Support Order.

To go over the checklist to make sure you are in the correct jurisdiction and that you have your order, please read the blog: Motion to Change Support - Basic Start-up Info. It is very important that you read the Basic Start-up Info blog before continuing with the following steps.

Once you have determined that the order you want to change is final and you are in the correct level of court – Ontario or Superior, continue with the following steps:

In an effort to make this very complicated process a little easier for you, I will provide you with a list of forms needed and then explain them in detail.

Forms you will need:

Form 15, Motion to Change Final Order

Form 15A, Change Information Form

Form 13, Financial Statement

you must attach to your Financial Statement

A copy of your last 3 years of Notice of Assessment; and

A copy of your current paystub/Social Assistance stub/Disability Benefits stub

(These documents would be attached to your Form 13, Financial Statement.

Confirmation of Assignment Form
It is very important that you have this form filled out and signed by the Confirmation Assignment Unit of the Ministry of Community and Social Services —-I have explained the procedure to this form in details in a separate blog: Confirmation of Assignment Form. 
Please make sure you read it. 

Without this form signed by the Ministry, your motion material may be rejected, especially in Brampton.

Form 14A, Affidavit General: You don’t have to file this form but some people prefer to tell their reasons for changing the court order in an affidavit form, so it is up to you if you want to fill it out or not.

Support Deduction Order Information Form     

Table of Contents: For your convenience, I have partially completed it for this particular motion.

Final Court Order:  Most importantly, you will also need to attach a certified copy of your final court order that you want changed or a copy of the separation agreement, whichever applies to you. If you don’t have a certified copy of the court order, you may attach a photocopy and make it as an exhibit to your affidavit. See my blog:  Motion to Change Support - Basic Start-up Info for more details on this issue.

In addition to the above, you will need the Red Motion to Change Continuing Record Cover, which you will need to pick up from the courthouse but you shouldn't have to make a special trip for it. You can pick it up from the FLIC office while getting your forms commissioned or you can just fill it out at the filing counter.

IMPORTANT:

**** Before you start filling the forms out, please make sure that you don’t switch the Style of Cause (meaning that if you were listed as the respondent in the final order, you would still put your name and address in the respondent’s box. The applicant stays the applicant and the respondent stays the respondent, regardless of who is filing this motion now).  You don’t become the applicant just because you are filing the motion. If you switch the names around, your paperwork will be rejected at the filing counter. It has no effect on the outcome of the matter. It’s just to keep track of the parties in a court file. Only a judge can change the Style of Cause if needed for some reason but most of the time, the judges don’t like to mess up the files. The family court files are complicated enough to begin with. I have seen people spending days, weeks, and sometimes months to complete their motion to change documents only to find out that they had switched the names around and their forms are incorrect.

**** And unless your lawyer or the lawyer for the other party is still representing you and you have retained your lawyer, DO NOT put the lawyers’ information on the forms in the lawyer’s column. When an order is made and you have a lawyer listed on the forms but you don’t really have a lawyer, the staff will not type up your court order. It will look like you have a lawyer who will be taking out (typing) the order. So for now, leave the lawyer info blank. If your circumstances change later and you do have a lawyer, you can always add that information at that time.

**** Do not put Family Responsibility Office (FRO) as a party in your forms. FRO is only a government agency enforcing your court order, and is not a party to your case. If you don’t have an address for the other party, you still be putting the other party’s name and write down address unknown. Then in addition to the Motion to Change forms, you will also need to include a 14B motion and affidavit asking for an order to serve FRO on behalf of the other party. It’s a whole different discussion and I will add a post setting out procedures and forms for it in another post.

Getting back to details of the forms I have listed above:

While filling out these forms, you may see terms such as recipient and payor at places.

Recipient is the party that is receiving or supposed to be receiving the support.

Payor is the party that is paying or supposed to be paying the support.

Form 15, Motion to Change:

I have inserted some pointers in CAPS to help you fill out this form but do go over the entire form to make sure you have not missed anything as I have only provided the basic pointers.

—- Fill out applicant and respondent box keeping the same style of cause (as explained above).

—- In the top right corner, fill in the name of the judge whose order you are changing (you will find this information in your final court order), and also write down the date of the order.  If you are changing a separation agreement, fill in the date of the separation agreement.

—- Toward the bottom of page 1, you will see fill in the blanks for Court Date – Leave this blank. The court staff will be filling this out at the time of filing. This will be the same date as your Mandatory Information Session (MIP) – I will provide more information on that later on. If you are filing your motion in Superior Court (SCJ) in Brampton, it will remain blank as SCJ doesn’t have first court dates. After you attend the Mandatory Information Session, your case will be scheduled for Case Conference in SCJ.

—- On Page 2, only check the boxes off that apply to you. Do not sign this page. The court staff will be signing here.

—- On Page 3, fill out the paragraphs that apply to you. For e.g. if you are also changing custody along with the support then you will need to fill out paragraphs 1, and so on.

Paragraphs 5 and 6 are about changing child support:
—- Paragraph 5 has the details of what you want to do with the support component of the final order and how you want to change it. Check off the appropriate box and fill in the information.

—- Paragraph 5 continues. Check off this box if you are also addressing the extraordinary expenses (for e.g. swimming, sports, tuition etc). Fill in the details of what you want in the new order with respect to the extraordinary expenses.

—- Paragraph 6 deals with any outstanding support. Check off the appropriate box and fill in the details.

Paragraph 7 and 8 are about changing spousal support:

—- Paragraph 7 has the details of how you want to change the spousal support that you were paying or receiving in the final order. Based on what you want to do, check off appropriate boxes and fill in the information.

—- Paragraph 8 has the details of how you want to address the outstanding spousal support if there is any.  Based on what you want to do, check off appropriate boxes and fill in the information.

—- Paragraph 9 gives you an option to add the details of anything else you would like to change in the order. For e.g. some clients want to change the custody clause by adding the passport and travel clause to it. This is where you may add this additional info in the order you want from the court.

—- Paragraph 10 is just another place you can either summarize your order or add additional clause if you have not had enough space to do so already.

Once completed, sign and date the form.  This form does not need to be commissioned.

Form 15A, Change Information Form:

—- Fill in the applicant/respondent/assignee box keeping the same style of case as the final order as explained above.

—- In paragraph 1, check off if you are the applicant or the respondent.

—- Paragraphs 2 and 3 are the personal details for both parties that you need to fill in. Fill out to the best of your knowledge.

—- On Page 2, paragraph 4—check off the boxes that apply to you. Your signed Confirmation of Assignment Form will help you complete this section and tell you if your order is assigned or not.

—- Paragraph 5 – check off boxes that apply to your case.

—- Paragraph 6 – fill in the child(ren)’s information as it may apply to your case.

—- Paragraph 7 –check off the appropriate box based on if you are changing a court order or a separation agreement.

CUSTODY/ACCESS SECTION

(If you including a claim to change or add custody/access, and if you are not the party with sole (full) custody, you must also complete the Form 35.1 Affidavit in Support of Claim for Custody or Access. This form needs to be commissioned when completed. Here is the Guide to Form 35.1  that may help you complete it.)

Continuing with the Form 15...
—- Paragraph 8 – if you are addressing custody and access also, then write down the current arrangements in place for custody/access.

—- Paragraph 9 – Write down the current arrangements in place for child or spousal support.

—- Paragraph 10 – Check of the appropriate boxes –if all child/spousal support payments are up to date or is there any outstanding child or spousal support owed to the recipient or the assignee.

—- Paragraph 11 (Custody) – Complete if this applies to your case: Write down the name of the person you want to have custody of the child(ren) – this could be you or the other party

and write down names and dates of birth of child)ren).

—- Paragraph 12 (Access) – Complete if this applies to your case:  Write down the name of the person you want to have access to the child(ren) – this could be you or the other party

and write down names and dates of birth of child)ren).

OR

—- Paragraph 13 (Joint Custody) – If you want an order for joint custody then complete this paragraph.

—- Paragraph 14 (Access/Residential Arrangement) – This goes with the joint custody order you in paragraph 13. Write down what arrangements you are asking for the child(ren) to have with respect to residence and access.

—- Paragraph 14 – Give the reason(s) why you think the order for custody/access/joint custody is best for the child(ren).

CHILD SUPPORT SECTION

—- Paragraph 16 – Check off the appropriate box(s) that best explains the reason you are changing the child support order.

—- Paragraph 17 – Check off the appropriate box as to how you want the order to be changed and what you want in the new child support order. Don’t forget to complete the extraordinary expense part if that applies to you.

—- Paragraph 18 – If you have asked in paragraph 17 that the amount in the new child support order shall be lower than the amount in the Child Support Guidelines, then explain by checking the appropriate box as to why you think it should be done.

—- Paragraph 19 – If there is any child support owed, explain by checking appropriate box(s) as to how the arrears should be paid off.

SPOUSAL SUPPORT SECTION

—-Paragraph 20 – By checking the appropriate box(s), explain why you are changing the spousal support.

—-Paragraph 21 – By checking the appropriate box(s), explain how you want the spousal support changed.

—-Paragraph 22 – If there is any spousal support owed, explain by checking the appropriate box(s) as to how the arrears should be paid off.

OTHER

—-Paragraph 23 – If you have anything else you want added to the new order, use this paragraph to do so.

—-Paragraph 24 – Write down the reasons why you are asking for the order in paragraph 23.

Page 7 needs to be commissioned.

If you are the support payor (person paying the support), you must also complete Page 8 and it needs to be commissioned.

If you are the support recipient (person receiving the support), you must also complete Page 9 and it needs to be commissioned.

FORM 13, Financial Statement

Complete the applicant/respondent boxes keeping the same style of cause as explained above.

I am attaching the Ministry's Guide to Financial Statements  to help you fill out this form.

You must also attach to your Financial Statement:

—- A copy of your last 3 years of Notices of Assessment and/or Re-assessment; and
—- A copy of your most current pay stub / Employment Insurance stub / Social Assistance Stub or / Ontario Disability Support Program stub (whichever applies to you).

Once completed and all the requirements information is attached, this form needs to be commissioned.

Form 14A, Affidavit General

Since the other forms didn’t give you any space to put down the details of your situation or anything else you want to add to your motion material, Form 14A, Affidavit General could be used for that purpose.

Here, you can write down the reasons in details why you are bringing the motion to change. You can also insert additional pages if you run out of space. Just make sure that the page where the Affidavit is sworn must be your last page so re-number your pages in that order.

Once completed, this form needs to be commissioned.

Support Deduction Information Form

This form gets sent to the Family Responsibility Office with the new order by the court staff once the new order is made. You must complete this form to the best of your ability and submit it with your motion material at the time of filing.

It does not get listed in the Table of Contents.

Confirmation of Assignment Form

There is a lot more information to this form and I have written a separate post just about it. Please check the post entitled, Confirmation of Assignment Form.

This form does not get listed in the Table of Contents.

Ministry of the Attorney General has a Guide to Motion to Change a Support Order or Agreement  on its website. I am attaching it for your reference.

Once all your forms are completed, they need to be commissioned. If you don’t have a lawyer, you can attend the Family Law Information Centre (FLIC) in your jurisdiction. Here is the list of FLIC offices in Ontario.

PLEASE REMEMBER TO TAKE A VALID PHOTO ID WHEN YOU GO TO COURT. WITHOUT A VALID PHOTO ID, YOUR FORMS WILL NOT BE COMMISSIONED.

At Brampton courthouse at 7755 Hurontario Street, a Motion to Change Clinic is held every Tuesday in Room 220 on the 2^nd floor, where you can get a little additional help from an advice lawyer. The advice lawyer could review your forms and commission them for you.

But you still need to get a ticket for FLIC and wait in FLIC to be referred to the Motion to Change Clinic.

Family Law Service Centre in Brampton (formerly Legal Aid Clinic) also holds similar clinic.

Please call them at 905-453-1723 for more information and hours.

Other jurisdictions may have similar clinics. You may call the courthouse in your jurisdiction to find out more information. Here is the list.

On other days, advice lawyers in FLIC also provide assistance with the Motion to Change forms and also commission them.

These are the forms to be used in a standard scenerio to file a Motion to Change Child or Spousal Support. Every situation is different and you may need to add a 14B motion and another affidavit to address other issues based on your individual circumstances. For that reason, it is important that you get legal advice from an advice lawyer at your nearby FLIC office if you don’t have your own lawyer.

I'll try to add some more posts covering some of those scenerios. I hope this post is of some help to you.

Just so you know, this is not a snapshot of an Attawapiskat living room but the lobby of the luxurious Renaissance Hotel in Vancouver, B.C. where NATOA will be holding its AGM on May 28, 2012. Its members are financial corporations and investment companies that supposedly manage the financial affairs of Aboriginal peoples in Canada.

For a moment, let’s just focus on a very small footage of a very big picture. There is a lot of talk about Attawapiskat housing crisis―housing shortage on a federally owned reserve! It is remarkable how such large land mass of Canada where the Aboriginal communities had lived and prospered for tens of thousands of years was sectioned off in colonial pieces, telling the Aboriginal peoples where to live and how. Indian Act of 1867 that was drawn up in someone’s living room over a glass of wine sliced the Native homeland and handed pieces of it back to their lawful owners but without the ownership of those pieces.But here is the interesting thing that even those pieces that were allotted to them were not theirs. 144 years later, still not theirs.

While most people in Canada, even the new immigrants enjoy the freedom to buy and sell their homes as they wish, Aboriginal communities on most reserves are not so fortunate because the government feels that the people who successfully managed their affairs in this vast northern continent for centuries are not capable of managing these small pieces of allotments. Lack of confidence? No. It is called Control and it began with the 1867 Indian Act and continues to this day. It leaves communities like Attawapiskat at the mercy of government programs and funding that let the money trickle down to the Aboriginal communities drop by drop because most of it is being managed by organizations like NATOA whose member firms invest millions of Aboriginal funds. But who is benefiting from these investments? Definitely, not the Aboriginal communities.

While basic necessities like housing has become a crisis for some Aboriginal communities on reserves, NATOA (National Aboriginal Trust Officers Association), an organization that is supposedly managing Aboriginal finances is holding their AGM at the luxury Renaissance Harbourside in Vancouver, BC on May 28, 2012. 

I am not going to post snapshots of people’s living space in Attawapiskat and I don’t find it very appealing the way media has posted people’s private living space on the internet. After all, this is their home, which is in the condition it is due to historical unfair colonial practices and current beaurocracy not because they are not capable of managing their own affairs. I wouldn’t want anyone to come into my home and then turn it into a media circus for people to feel sorry for me. I would say, “Give me back what is mine so I can live the way I want to live.” What’s the point of being handed a dollar here and a dollar there out of my own wallet but not handing me back my entire wallet? It doesn’t make any sense.
 
On top of what is already a serious issue of financial interference in Aboriginal affairs, Attawapiskat is made to pay Ottawa appointee (a private financial advisor, just like many members of NATOA) $1,300.00 a day to manage its affairs. To get a better picture of how the finances are “doled out” to Aboriginal communities, here is a good read―A Brochure - McLean Budden, one of the many members of NATOA, that “supposedly” manage the assets of Aboriginal peoples. And that money (the so called federal government handouts as some people say) only gets released to the Aboriginal communities under a federally approved programs—the programs designed by non-Aboriginal standards targetted to meet the social and cultulral needs of Aboriginal peoples. Pennies from the dollar that get released to people is often chained to so many nonsensical program requirements that most of the time, it never makes it to its supposedly intended target but in paper, it all looks wonderful. It does more damage than it does good. 

It’s not that the money just gets handed out in truckloads to the First Nations. Reality of this misconception in the minds of non-Aboriginals could not be better told by Chelsea Vowel in her exceptionally intelligent article, “Harper said Attawapiskat got 90 million, where did it go!?” To read this post, please visit the blog, âpihtawikosisân. I encourage you all to subscribe to her blog as it is very informative and will give you a perspective on Aboriginal issues from an Aboriginal perspective.
 
While First Nations' money from their own land goes in circles of investments in the hands of NATOA member firms, the politicians from left and right blame each other for the housing crisis in communities like Attawapiskat. When it becomes a media circus, the Harper government comes up with a brilliant plan of relocating the Attawapiskat families. Relocation seems to be the only strategy known to the colonial regime and after almost two hundred years, not much has changed. And the tragedy is that while all of this is going on, a lot of non-Aboriginal population thinks the Aboriginal communities are living off government handouts. The truth is that the money doesn’t make its way to them, because the programs through which the money is supposed to be reaching the Aboriginal communities are bogus programs with no underlying agenda and no firm commitment. It is due to the unproductive nature of these programs and not because the Aboriginal communities don’t want to progress that these funds remain circulating in the investment accounts of firms like McLean Budden.
 
Just because some government appointed chief mishandled some funds, it doesn’t mean all Aboriginal leaders are corrupt. Majority of them work very hard to maintain the dignity of their communities. If that’s the case, a few Canadian prime ministers were also found playing with taxpayer’s money and were accused of other money laundering offences, there should have been third party intervention to manage their affairs also. But, so far I have not seen any third party firm managing a prime minister’s paycheck and other paid expenses. Why the Aboriginal communities are the always the first ones to be hit with such harsh penalties? This is not a one-time fix for Attawapiskat but this is an issue that needs a close observation of the three Ws―

What is the underlying problem?

When did it begin?

Why is it still here?

One of my favorite authors, Taiaiake Alfred has said it best in his book, Peace, Power, Righteousness - An Indigenous Manifesto

"Another truth that must be told is that money in itself does nothing to solve the problems faced by indigenous people. Only by building economic relationships and trade with other peoples can we really strengthen and sustain our communities. Truly valuable development consists in the learning, the skills, the business acumen, and the empowerment that flow from taking control over our lands and using them for the collective benefit in ways that are consistent with indigenous values. Moving from wardship to partnership with the state and industry is progress toward self-determination; this is a matter of perspective, resolve, and skill. Ignoring the principle of self-determination and blindly moving from total wardship to a new form of dependency—for example, based on supplying raw materials to foreign industry— is in fact a step down, because it requires that indigenous people actively participate in their own exploitation."

Post-confederation treaties evolved from pre-confederation treaties and all government policies determining the rights and responsibilities of aboriginal peoples have been, and continue to be based on some kind of original paperwork that was supposedly done between the Crown and aboriginal peoples in Canada. What are these treaties and who determined, witnessed, translated, interpreted, drafted, and signed these treaties? Before non-aboriginals pass judgements on aboriginal peoples, their struggles, their fights and issues, they must take a deeper look at how and under what circumstances these treaties were originally formed, based upon which the modern day aboriginal claims are assessed. And one must not be fooled by the decisions passed by the courts confirming those treaties because the precedents upon which those decisions are based were also set forth by relying on that original paperwork.

Making treaty after treaty based on the pre-confederation treaties is like making certified copies of the original that may not even be the original after all. Think about it! We are talking about a very large land mass―just the western Canada being so vast that it is more than twice the size of United Kingdom, Ireland, Spain, Portugal and France combined, making 29% of the land mass of Canada.  There must be some firm accountability in the business transaction of such large land mass. The precedents must’ve been put in place with some concrete evidence of legal treaties with full knowledge and consent of the seller. Isn’t that the usual business practice? Even for the purchase of a 700 sq. ft. area or smaller, there is the legal requirement that the seller must understand and consent to the sale. Otherwise, you would need a court order dispensing with such consent or a trustee or legal guardian who can give such consent on behalf of the seller. It should make one wonder, be seriously concerned and question if the sale of such large area of aboriginal lands did pass those tests? If not, then it would be considered fraud, and fraudulent transactions don’t hold much weight in the court of law, if we ought to seek justice in the court of law.

I have personally come across people who have emigrated from other countries and have boasted loudly that this is their land, their country and that they are doing a favour to the aboriginal communities by giving them the tax relief and other financial help that the aboriginal communities don't even end up receiving most of the time. And I say to them: Wrong! This is Native land. It belongs to aboriginal peoples of Canada. Everyone else is an immigrant, no matter if you came here 300 years ago, 400, or 40. The tax relief the First Nations are getting is almost like saying to them that we have your land but hey, we give you 13% break on the rent you pay―renting their own land back to them. It doesn’t make any sense.

We can’t go back in time and change history, but let’s correct what has gone wrong. Let’s acknowledge the rightful owners of this land and be respectful of them for their generosity, their great culture, their intellectual insight, and their way of life. When we live off someone else's property, land, and resources, we become indebted to them in our conscious. We can't continue to flourish on someone else's property without even acknowledging their rights and responsibilties toward their land. That would make us ungrateful and equally responsible for the wrongdoings against First Nations. Because remember that all of this settlement may very well be based on fraudulent treaties and the day the truth comes out, all of this land will be claimed back by their rightful owners. Because the circle of life always completes itself. A little tangent here and there may give an illusion that it’s diverted and no longer a circle but in the big picture, that’s not the case.

This post is about procedures to change a temporary child/spousal support order in Ontario. Please pay attention to the word, ‘Temporary’. We’ll go over the change of final order in another post. Before you continue reading this post, please have a look at your court order and make sure that it is not marked final. There are usually two boxes on the top right corner right underneath the court file number. If the box next to ‘Temporary’ is checked off, then follow the instructions below. Some orders are not marked either way then look at the wording in the body of the order.

So you have determined that it is a temporary support order you need to change.

Next thing you will need to check if the order was made in Superior Court of Justice or Ontario Court of Justice because the procedures are different for each level of court. Let’s look at that to determine jurisdiction because you must file your motion at the same level of court to change your order:

Superior Court of Justice – In the old days, it was also called — Ontario Court of Justice, General Division.

Ontario Court of Justice – It’s the provincial level of court and also used to be called – Ontario Court of Justice, Provincial Division.

Family Court of Justice – It is the unified court. So, if your order is made in the Family Court of Ontario, you will need to file your motion at the Family Court of Ontario or at the Superior Court of Justice. Ontario Court of Justice is a lower level of court and does not have jurisdiction to change an order that was made at a higher level.

More information on the different levels of court is available here.

The most important rule you would need to remember is not to change the Style of Cause — what it means is that if you are listed as respondent in the original order, you must list yourself respondent only in your motion materials. You cannot put your name as the applicant just because you are filing the motion. If you were the applicant then you stay the applicant. The Style of Cause stays consistent throughout the file no matter how many years later you bring the matter back to court. It can only be switched by a judge.

And also remember that NO motions are allowed before the Case Conference (That's Rule 14 in the Family Law Rules) So, if a case conference is not heard in your case yet, you will first need court’s permission to bring a motion before court. You can do so by filing a 14B Motion asking persmission and an Affidavit General, Form 14A explaining why (needs to be commissioned). After all documents are signed and commissioned (sworn), serve a copy on the other party and you can do so by ordinary mail, complete the Affidavit of Service, Form 6B (needs to be commissioned)

File your 14B motion, Affidavit, and Affidavit of Service at the filing counter. Wait to hear back from the court or follow-up if you don’t hear back in time.

Once you are granted permission to file your motion to change a temporary order, only then you can file it.

Filing Motion to Change Temporary Support Order at the Superior Court of Justice (SCJ)

If your order was made at the Superior Court of Justice or Family Court of Justice, then follow the procedures listed below:

Forms needed:

Notice of Motion, Form 14 – Write down on page 2 what you want in paragraphs – just what order you want without any details.

For e.g.

1.  An order changing the temporary child support order made January 1, 2011 to reduce the support payments due to financial hardship.

Affidavit General, Form 14A– Explain why.

Write down the reasons in neat paragraphs as to what has changed since the order was made.

Remember that this form needs to be commissioned.

Financial Statement, Form 13 – You will need to attach to this form:

—-A copy of your last 3 years of Notice of Assessment also include Notice of Re-assessment if any); and
—-A copy of your most recent pay stub/Social Assistance Stub or ODSP stub whichever applies to you.

And with all the above documents, you must also file a copy of the court order you are trying to change. How to get the copy of your court order if you don’t have one, please read my last blog  on basic start-up information on motion to change support orders.

What to do when your forms are filled out, signed, and sworn?

You may call the courthouse (here is the link to the list) you will be filing your motion at to find out what days they hear the motions but I can tell you that in Brampton, the motions in Superior Court of Justice are heard every Tuesday, Thursday, and Friday.

So, pick any of these days, write the date on the Notice of Motion, and time would be 10:00 a.m.

When selecting the date, make sure you serve the other party at least 4 business days before the date and the motion has to be filed at least 2 days before the date you have chosen.

After service, complete your Affidavit of Service, Form 6B. This form needs to be sworn but the clerk can commission it at the time of filing so don’t waste your time in FLIC waiting hours just to get this signed.

Take your original motion material as listed above, get a ticket for filing at the Superior Court filing counter and file your documents with your Affidavit of Service.

Filing Motion to Change a Temporary Support Order at the Ontario Court of Justice (OCJ)

Most OCJ cases are case managed and that means that your case would be ongoing until it is finalized. You can only bring a motion for a temporary order after the case conference has been heard or unless you have the court’s permission to bring a motion.

So, the very first thing you would want to check is if you have permission to file the motion. In OCJ, there are no motion dates like Superior Court has. So if your court case is ongoing and you have a next date, look at the last court endorsement and see if the judge has given you permission to bring a motion on the return date. If the answer is yes, then your return date would be the date of your motion, and that’s the date and time you will be writing on your Notice of Motion.

If the judge has not written in the last endorsement that you can bring a motion on certain date then the very first thing you need to do is file a 14B Motion to ask permission (also called leave of the court).

Asking permission to bring a motion on the return date:

Complete the 14B Motion asking permission to bring the motion on the return date or an earlier date if your court date is far.

Affidavit General, Form 14A – Explain why do you need to bring the motion. Don’t put a lot of details that you would be writing in your motion. This affidavit only needs to be supporting the order you are asking in 14B motion – why do you need to bring a motion? Keep it precise and up to the point.

Some OCJ offices don't care about this 14B motion to be served while others are very particular about it. So, call your courthouse and confirm the procedure, and get the name of the staff you speak with. File the above at the courthouse where your matter is ongoing and wait to hear from the judge.

Once you have a motion date from the judge then follow the same procedures as explained above for the Superior Court of Justice. So, instead of selecting a date of your own, you will write the date and time the judge has given you on your Notice of Motion—no other date but that date and time.

REMEMBER: Always to take a valid photo ID with you when you go to court because without a valid photo ID, your affidavit, financial statement, or affidavit of service will not be commissioned (sworn).

In the next few days, I’ll be posting procedures on Motion to Change a Final Support Order.

PLEASE NOTE:  The above information is procedural only and a small effort to help. It does not constitute legal advice in anyway. Motions get tricky depending on people’s individual circumstances. I have just described general and basic steps involved in the motion to change temporary support orders. For any complicated matters or urgent motions, please seek legal advice from your own lawyer or from a duty counsel or advice lawyer at the nearest Family Law Information Centre (FLIC). Here is the list of FLIC locations in Ontario.