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ulysses101
ulysses101, Lawyer
Category: Canada Family Law
Satisfied Customers: 3360
Experience:  Over 10 years litigation experience in family, criminal, and civil law
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My application was dismissed yesterday at the BC provincial

Customer Question

My application was dismissed yesterday at the BC provincial court. The other party’s lawyer requested it dismissed on procedural ground. The application consists of: 1-notice of motion(checked appropriate boxes) 2-affidavit 3-financial statement form 4 and EI claim and payments information. All served properly. It’s about canceling child support arrears or determining if there are arrears owing and adjusting the support to reflect my new financial situation according to the guidelines, since getting laid off in Jun2015. There is*****of Ontario order just after separation, determining the amount of child support when we lived in Ontario. We are all residents of BC now. The other party’s lawyer didn’t mention what was missing from my application and the judge ended up saying t “this is half application”. I was denied legal aid, and duty counsel 2 times, was told “conflict”. and can’t afford a lawyer at this time. Also the superior court order was already recognized in BC provincial court in 2013 as having the same effect. What are the steps to file again? I can attach files if needed
Submitted: 10 months ago.
Category: Canada Family Law
Expert:  ulysses101 replied 10 months ago.

Hello, thank you for the question.

One issue is clearly leaping out at me: the order you have from Superior Court of Ontario ought to be varied by the Supreme Court in BC, not by the provincial level court. I'll bet that your judge said that the provincial court didn't have the power to vary a Superior Court order from another province. Yes, the BC provincial level court will certainly recognize that Ontario order, and can make additional orders or deal with the enforcement of the support, but BC provincial court will say that it can't change the Ontario Superior Court order.

You ought to take your papers to court, get a copy of the judge's endorsement to see if the judge wrote down their reasoning for dismissing the application, and see duty counsel or Legal Aid's family clinic if your court has one.

I know you've been told that you're "conflicted out" by more than one duty counsel there, but I'm sure that there has to be someone who can talk to you and confirm what I've told you here. There might be other issues too. I've done my share of duty counsel work, and in this situation you're not looking for context-specific legal advice about your evidence or what you're asking for (it would be a conflict if the dc you have has previously helped your ex) but rather you're looking for procedural information on which level of court you need to be at, and what deficiencies if any existed in your paperwork which did (or might have) contribute to the dismissal of your application. If you put it to dc like that, they should think twice before saying "conflict". If they still do, ask for someone to help you that isn't conflicted out.

Does that make sense? Feel free to reply with question or comment. If I've answered you, I'd appreciate a positive service rating please.

Customer: replied 10 months ago.
The judge said: you can apply to vary and in the provincial court and you dont have to apply in the supreme court.(does seeking an interm order rather than order make the difference?) What forms did I miss to file with application?
Customer: replied 10 months ago.
I will go back to the court to see if the judge recorded what the reason for dismissal and get back with you
Expert:  ulysses101 replied 10 months ago.

It shouldn't make a difference, I find that odd. While the provincial level court is certainly a "court of competent jurisdiction", in my experience the provincial court either declines or is loathe to touch another province's superior court order.

I think that's a good idea, to check at court to see if there's a judicial endorsement with some reasons, and see what duty counsel has to say. We'll leave this question thread open, let me know what you find out.

I'm supposed to ask you for a service rating, but since we aren't finished I won't push you on it. If you want to that would be great, especially if you're on a subscription. But if you put down a deposit with the site to ask this question, I'd feel bad asking you to pay when we haven't solved anything other than me saying "go back to court and check the file and ask duty counsel again".

Regardless, I'll be here and the question thread will stay open for a while. Let me know what you find out and if there's anything else I can do for you.

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